-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U0XCYG2x8gLy0z8pNhq6rT9w4JUjDxNLxFV2/oNNvYfqmZmBrWKmDiMt56t/SLn8 dSo2nBUAK4XIIYbXc2ejAQ== 0000092122-99-000040.txt : 19990426 0000092122-99-000040.hdr.sgml : 19990426 ACCESSION NUMBER: 0000092122-99-000040 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 44 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990326 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN CO CENTRAL INDEX KEY: 0000092122 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 580690070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-03526 FILM NUMBER: 99573443 BUSINESS ADDRESS: STREET 1: 270 PEACHTREE ST CITY: ATLANTA STATE: GA ZIP: 30303 BUSINESS PHONE: 4045065000 MAIL ADDRESS: STREET 1: 270 PEACHTREE STREET CITY: ATLANTA STATE: GA ZIP: 30303 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALABAMA POWER CO CENTRAL INDEX KEY: 0000003153 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 630004250 STATE OF INCORPORATION: AL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-03164 FILM NUMBER: 99573444 BUSINESS ADDRESS: STREET 1: 600 N 18TH ST STREET 2: P O BOX 2641 CITY: BIRMINGHAM STATE: AL ZIP: 35291 BUSINESS PHONE: 2052571000 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GEORGIA POWER CO CENTRAL INDEX KEY: 0000041091 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 580257110 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-06468 FILM NUMBER: 99573445 BUSINESS ADDRESS: STREET 1: 241 RALPH MCGILL BOULEVARD CITY: ATLANTA STATE: GA ZIP: 30308 BUSINESS PHONE: 4045066526 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GULF POWER CO CENTRAL INDEX KEY: 0000044545 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 590276810 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 000-02429 FILM NUMBER: 99573446 BUSINESS ADDRESS: STREET 1: ONE ENERGY PLACE CITY: PENSACOLA STATE: FL ZIP: 32520-0102 BUSINESS PHONE: 8504446111 MAIL ADDRESS: STREET 1: ONE ENERGY PLACE CITY: PENSACOLA STATE: FL ZIP: 32520-0102 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MISSISSIPPI POWER CO CENTRAL INDEX KEY: 0000066904 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 640205820 STATE OF INCORPORATION: MS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-11229 FILM NUMBER: 99573447 BUSINESS ADDRESS: STREET 1: 2992 W BEACH CITY: GULFPORT STATE: MS ZIP: 39501 BUSINESS PHONE: 2288641211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAVANNAH ELECTRIC & POWER CO CENTRAL INDEX KEY: 0000086940 STANDARD INDUSTRIAL CLASSIFICATION: 4911 IRS NUMBER: 580418070 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-05072 FILM NUMBER: 99573448 BUSINESS ADDRESS: STREET 1: 600 BAY ST EAST CITY: SAVANNAH STATE: GA ZIP: 31401 BUSINESS PHONE: 9122327171 10-K 1 FORM 10-K ============================================================================== UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Fiscal Year Ended December 31, 1998 OR ( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period from to Commission Registrant, State of Incorporation, I.R.S. Employer File Number Address and Telephone Number Identification No. 1-3526 The Southern Company 58-0690070 (A Delaware Corporation) 270 Peachtree Street, N.W. Atlanta, Georgia 30303 (404) 506-5000 1-3164 Alabama Power Company 63-0004250 (An Alabama Corporation) 600 North 18th Street Birmingham, Alabama 35291 (205) 257-1000 1-6468 Georgia Power Company 58-0257110 (A Georgia Corporation) 241 Ralph McGill Boulevard, N.E. Atlanta, Georgia 30308-3374 (404) 506-6526 0-2429 Gulf Power Company 59-0276810 (A Maine Corporation) One Energy Place Pensacola, Florida 32520-0102 (850) 444-6111 0-6849 Mississippi Power Company 64-0205820 (A Mississippi Corporation) 2992 West Beach Gulfport, Mississippi 39501 (228) 864-1211 1-5072 Savannah Electric and Power Company 58-0418070 (A Georgia Corporation) 600 East Bay Street Savannah, Georgia 31401 (912) 644-7171 ============================================================================= Securities registered pursuant to Section 12(b) of the Act: 1 Each of the following classes or series of securities registered pursuant to Section 12(b) of the Act is registered on the New York Stock Exchange. Title of each class Registrant Common Stock, $5 par value The Southern Company Company obligated mandatorily redeemable preferred securities, $25 liquidation amount 7.75% Cumulative Quarterly Income Preferred Securities 2 7 1/8% Trust Originated Preferred Securities 3 6.875% Cumulative Quarterly Income Preferred Securities 4 --------------------------------------------------- Class A preferred, cumulative, $25 stated capital Alabama Power Company 5.20% Series Adjustable Rate (1993 Series) 5.83% Series Senior Notes 7 1/8% Series A 7% Series C 7% Series B Company obligated mandatorily redeemable preferred securities, $25 liquidation amount 7.375% Trust Preferred Securities 5 7.60% Trust Originated Preferred Securities 6 --------------------------------------------------- Senior Notes Georgia Power Company 6 7/8% Series A 6.60% Series B Company obligated mandatorily redeemable preferred securities, $25 liquidation amount 9% Monthly Income Preferred Securities, Series A 7 7.75% Trust Preferred Securities 8 7.60% Trust Preferred Securities 9 7.75% Quarterly Income Preferred Securities 10 First mortgage bonds 6 1/8% Series due 1999 6 7/8% Series due 2002 ------------------------------------------------------ ============================================================================== 1 As of December 31, 1998. 2 Issued by Southern Company Capital Trust III and guaranteed by The Southern Company. 3 Issued by Southern Company Capital Trust IV and guaranteed by The Southern Company. 4 Issued by Southern Company Capital Trust V and guaranteed by The Southern Company. 5 Issued by Alabama Power Capital Trust I and guaranteed by Alabama Power Company. 6 Issued by Alabama Power Capital Trust II and guaranteed by Alabama Power Company. 7 Issued by Georgia Power Capital, L.P. and guaranteed by Georgia Power Company. 8 Issued by Georgia Power Capital Trust I and guaranteed by Georgia Power Company. 9 Issued by Georgia Power Capital Trust II and guaranteed by Georgia Power Company. 10 Issued by Georgia Power Capital Trust III and guaranteed by Georgia Power Company. Company obligated mandatorily redeemable Gulf Power Company preferred securities, $25 liquidation amount 7.625% Quarterly Income Preferred Securities 11 7.00% Quarterly Income Preferred Securities 12 ------------------------------------------------------ Depositary preferred shares, each Mississippi Power Company representing one-fourth of a share of preferred stock, cumulative, $100 par value 6.32% Series 6.65% Series Company obligated mandatorily redeemable preferred securities, $25 liquidation amount 7.75% Trust Originated Preferred Securities 13 --------------------------------------------------- Company obligated mandatorily Savannah Electric and Power Company redeemable preferred securities, $25 liquidation amount 6.85% Trust Preferred Securities 14 Securities registered pursuant to Section 12(g) of the Act: 15 Title of each class Registrant Preferred stock, cumulative, $100 par value Alabama Power Company 4.20% Series 4.60% Series 4.72% Series 4.52% Series 4.64% Series 4.92% Series Class A preferred, cumulative, $100,000 stated capital Auction (1993 Series) Class A preferred, cumulative, $100 stated capital Auction (1988 Series) ---------------------------------------------------------- Preferred stock, cumulative, $100 stated value Georgia Power Company $4.60 Series $4.72 Series $5.64 Series $4.60 Series (1962) $4.92 Series $6.48 Series $4.60 Series (1963) $4.96 Series $6.60 Series $4.60 Series (1964) $5.00 Series ---------------------------------------------------------- =============================================================================== 11 Issued by Gulf Power Capital Trust I and guaranteed by Gulf Power Company. 12 Issued by Gulf Power Capital Trust II and guaranteed by Gulf Power Company. 13 Issued by Mississippi Power Capital Trust I and guaranteed by Misissippi Power Company. 14 Issued by Savannal Electric Capital Trust I and guaranteed by Savannah Electric and Power Company. 15 As of December 31, 1998. Preferred stock, cumulative, $100 par value Gulf Power Company 4.64% Series 5.44% Series 5.16% Series ---------------------------------------------------------- Preferred stock, cumulative, $100 par value Mississippi Power Company 4.40% Series 4.60% Series 4.72% Series 7.00% Series ---------------------------------------------------------- Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days. Yes X No___ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants' knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ( ) Aggregate market value of voting stock held by non-affiliates of The Southern Company at February 28, 1999: $17.5 billion. Each of such other registrants is a wholly-owned subsidiary of The Southern Company and has no voting stock other than its common stock. A description of registrants' common stock follows:
Description of Shares Outstanding Registrant Common Stock at February 28, 1999 The Southern Company Par Value $5 Per Share 698,630,431 Alabama Power Company Par Value $40 Per Share 5,608,955 Georgia Power Company No Par Value 7,761,500 Gulf Power Company No Par Value 992,717 Mississippi Power Company Without Par Value 1,121,000 Savannah Electric and Power Company Par Value $5 Per Share 10,844,635
Documents incorporated by reference: specified portions of The Southern Company's Proxy Statement relating to the 1999 Annual Meeting of Stockholders are incorporated by reference into PART III. This combined Form 10-K is separately filed by The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company and Savannah Electric and Power Company. Information contained herein relating to any individual company is filed by such company on its own behalf. Each company makes no representation as to information relating to the other companies. ==============================================================================
Table of Contents Page PART I Item 1 Business The SOUTHERN System.........................................................I-1 Traditional Business........................................................I-1 Non-Traditional Business....................................................I-2 Certain Factors Affecting the Industry......................................I-4 Construction Programs.......................................................I-4 Year 2000...................................................................I-5 Financing Programs..........................................................I-6 Fuel Supply.................................................................I-7 Territory Served By Operating Affiliates....................................I-9 Competition.................................................................I-12 Regulation..................................................................I-13 Rate Matters................................................................I-15 Employee Relations..........................................................I-17 Item 2 Properties....................................................................I-18 Item 3 Legal Proceedings.............................................................I-23 Item 4 Submission of Matters to a Vote of Security Holders...........................I-23 Executive Officers of SOUTHERN................................................I-24 PART II Item 5 Market for Registrants' Common Equity and Related Stockholder Matters.........II-1 Item 6 Selected Financial Data.......................................................II-2 Item 7 Management's Discussion and Analysis of Results of Operations and Financial Condition.....................................................II-2 Item 7A Quantitative and Qualitative Disclosures about Market Risk....................II-2 Item 8 Financial Statements and Supplementary Data...................................II-3 Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.........................................II-4 PART III Item 10 Directors and Executive Officers of the Registrants..........................III-1 Item 11 Executive Compensation.......................................................III-13 Item 12 Security Ownership of Certain Beneficial Owners and Management.................................................................III-31 Item 13 Certain Relationships and Related Transactions...............................III-37 PART IV Item 14 Exhibits, Financial Statement Schedules, and Reports on Form 8-K................................................................IV-1 i
DEFINITIONS When used in Items 1 through 5 and Items 10 through 14, the following terms will have the meanings indicated. Other defined terms specific only to Item 11 are found on page III-13. Term Meaning AEC........................................... Alabama Electric Cooperative, Inc. AFUDC......................................... Allowance for Funds Used During Construction ALABAMA....................................... Alabama Power Company Alicura....................................... Hidroelectrica Alicura, S.A. (Argentina) AMEA.......................................... Alabama Municipal Electric Authority APEA.......................................... Applicant Prepared Environmental Assessment CEMIG......................................... Companhia Energetica de Minas Gerais CEPA.......................................... Consolidated Electric Power Asia Clean Air Act................................. Clean Air Act Amendments of 1990 Dalton........................................ City of Dalton, Georgia DOE........................................... United States Department of Energy Edelnor....................................... Empresa Electrica del Norte Grande, S.A. (Chile) EMF........................................... Electromagnetic field Energy Act.................................... Energy Policy Act of 1992 Energy Solutions.............................. Southern Company Energy Solutions, Inc. (formerly The Southern Development and Investment Group, Inc.) Entergy Gulf States........................... Entergy Gulf States Utilities Company EPA........................................... United States Environmental Protection Agency EWG........................................... Exempt wholesale generator FERC.......................................... Federal Energy Regulatory Commission FPC........................................... Florida Power Corporation FP&L.......................................... Florida Power & Light Company Freeport...................................... Freeport Power Company (Bahamas) FUCO.......................................... Foreign utility company GEORGIA....................................... Georgia Power Company GULF.......................................... Gulf Power Company Holding Company Act........................... Public Utility Holding Company Act of 1935, as amended IBEW.......................................... International Brotherhood of Electrical Workers IRS........................................... Internal Revenue Service JEA........................................... Jacksonville Electric Authority MEAG.......................................... Municipal Electric Authority of Georgia MISSISSIPPI................................... Mississippi Power Company Mobile Energy................................. Mobile Energy Services Company, LLC NRC........................................... Nuclear Regulatory Commission OPC........................................... Oglethorpe Power Corporation operating affiliates.......................... ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH PSC........................................... Public Service Commission RUS........................................... Rural Utility Service (formerly Rural Electrification Administration) SAVANNAH...................................... Savannah Electric and Power Company SCS........................................... Southern Company Services, Inc. SEC........................................... Securities and Exchange Commission SEGCO......................................... Southern Electric Generating Company SEPA.......................................... Southeastern Power Administration SERC.......................................... Southeastern Electric Reliability Council SMEPA......................................... South Mississippi Electric Power Association SOUTHERN...................................... The Southern Company Southern LINC................................. Southern Communications Services, Inc. Southern Energy............................... Southern Energy, Inc. (formerly Southern Electric International, Inc.) Southern Nuclear.............................. Southern Nuclear Operating Company, Inc.
ii
DEFINITIONS (continued) SOUTHERN system............................... SOUTHERN, the operating affiliates, SEGCO, Southern Energy, Southern Nuclear, SCS, Southern LINC, Energy Solutions and other subsidiaries SWEB.......................................... South Western Electricity plc (United Kingdom) TVA........................................... Tennessee Valley Authority
iii CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION This Annual Report on Form 10-K includes forward-looking and historical information. The registrants caution that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the markets of SOUTHERN's subsidiaries; potential business strategies, including acquisitions or dispositions of assets or internal restructuring, that may be pursued by the registrants; state and federal rate regulation in the United States; Year 2000 issues; changes in or application of environmental and other laws and regulations to which SOUTHERN and its subsidiaries are subject; political, legal and economic conditions and developments in the United States and in foreign countries in which the subsidiaries operate; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; the performance of projects undertaken by the non-traditional business and the success of efforts to invest in and develop new opportunities; and other factors discussed elsewhere herein and in other reports filed from time to time by the registrants with the SEC. iv PART I Item 1. BUSINESS SOUTHERN was incorporated under the laws of Delaware on November 9, 1945. SOUTHERN is domesticated under the laws of Georgia and is qualified to do business as a foreign corporation under the laws of Alabama. SOUTHERN owns all the outstanding common stock of ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH, each of which is an operating public utility company. ALABAMA and GEORGIA each own 50% of the outstanding common stock of SEGCO. The operating affiliates supply electric service in the states of Alabama, Georgia, Florida, Mississippi and Georgia, respectively, and SEGCO owns generating units at a large electric generating station which supplies power to ALABAMA and GEORGIA. More particular information relating to each of the operating affiliates is as follows: ALABAMA is a corporation organized under the laws of the State of Alabama on November 10, 1927, by the consolidation of a predecessor Alabama Power Company, Gulf Electric Company and Houston Power Company. The predecessor Alabama Power Company had had a continuous existence since its incorporation in 1906. GEORGIA was incorporated under the laws of the State of Georgia on June 26, 1930, and admitted to do business in Alabama on September 15, 1948. GULF is a corporation which was organized under the laws of the State of Maine on November 2, 1925, and admitted to do business in Florida on January 15, 1926, in Mississippi on October 25, 1976, and in Georgia on November 20, 1984. MISSISSIPPI was incorporated under the laws of the State of Mississippi on July 12, 1972, was admitted to do business in Alabama on November 28, 1972, and effective December 21, 1972, by the merger into it of the predecessor Mississippi Power Company, succeeded to the business and properties of the latter company. The predecessor Mississippi Power Company was incorporated under the laws of the State of Maine on November 24, 1924, and was admitted to do business in Mississippi on December 23, 1924, and in Alabama on December 7, 1962. SAVANNAH is a corporation existing under the laws of the State of Georgia; its charter was granted by the Secretary of State on August 5, 1921. SOUTHERN also owns all the outstanding common stock of Southern Energy, Southern LINC, Southern Nuclear, SCS (the system service company), Energy Solutions and other direct and indirect subsidiaries. Southern Energy is focused on several key international and domestic business lines, including energy distribution, integrated utilities, stand-alone generation, and other energy-related products and services. A further description of Southern Energy's business and organization follows later in this section under "Non-Traditional Business." Southern LINC provides digital wireless communications services to SOUTHERN's operating affiliates and also markets these services to the public within the Southeast. Southern Nuclear provides services to the Southern electric system's nuclear plants. Energy Solutions develops new business opportunities related to energy products and services. SEGCO owns electric generating units with an aggregate capacity of 1,019,680 kilowatts at Plant Gaston on the Coosa River near Wilsonville, Alabama, and ALABAMA and GEORGIA are each entitled to one-half of SEGCO's capacity and energy. ALABAMA acts as SEGCO's agent in the operation of SEGCO's units and furnishes coal to SEGCO as fuel for its units. SEGCO also owns three 230,000 volt transmission lines extending from Plant Gaston to the Georgia state line at which point connection is made with the GEORGIA transmission line system. The SOUTHERN System Traditional Business The transmission facilities of each of the operating affiliates and SEGCO are connected to the respective company's own generating plants and other sources of power and are interconnected with the transmission facilities of the other operating affiliates and SEGCO by means of heavy-duty high voltage lines. (In the case of GEORGIA's integrated transmission system, see Item 1 - BUSINESS - "Territory Served By Operating Affiliates" herein.) I-1 Operating contracts covering arrangements in effect with principal neighboring utility systems provide for capacity exchanges, capacity purchases and sales, transfers of economy energy and other similar transactions. Additionally, the operating affiliates have entered into voluntary reliability agreements with the subsidiaries of Entergy Corporation, Florida Electric Power Coordinating Group and TVA and with Carolina Power & Light Company, Duke Energy Corporation, South Carolina Electric & Gas Company and Virginia Electric and Power Company, each of which provides for the establishment and periodic review of principles and procedures for planning and operation of generation and transmission facilities, maintenance schedules, load retention programs, emergency operations, and other matters affecting the reliability of bulk power supply. The operating affiliates have joined with other utilities in the Southeast (including those referred to above) to form the SERC to augment further the reliability and adequacy of bulk power supply. Through the SERC, the operating affiliates are represented on the National Electric Reliability Council. An intra-system interchange agreement provides for coordinating operations of the power producing facilities of the operating affiliates and SEGCO and the capacities available to such companies from non-affiliated sources and for the pooling of surplus energy available for interchange. Coordinated operation of the entire interconnected system is conducted through a central power supply coordination office maintained by SCS. The available sources of energy are allocated to the operating affiliates to provide the most economical sources of power consistent with good operation. The resulting benefits and savings are apportioned among the operating affiliates. SCS has contracted with SOUTHERN, each operating affiliate, Southern Energy, various of the other subsidiaries, Southern Nuclear and SEGCO to furnish, at cost and upon request, the following services: general executive and advisory services, power pool operations, general engineering, design engineering, purchasing, accounting, finance and treasury, taxes, insurance and pensions, corporate, rates, budgeting, public relations, employee relations, systems and procedures and other services with respect to business and operations. Southern Energy, Energy Solutions and Southern LINC have also secured from the operating affiliates certain services which are furnished at cost. Southern Nuclear has contracts with ALABAMA to operate the Farley Nuclear Plant, and with GEORGIA to operate Plants Hatch and Vogtle. See Item 1 - BUSINESS - "Regulation - Atomic Energy Act of 1954" herein. Non-Traditional Business SOUTHERN continues to consider new business opportunities, particularly those which allow use of the expertise and resources developed through its regulated utility experience. These endeavors began in 1981 and are conducted through Southern Energy and other subsidiaries. SOUTHERN has filed with the SEC an application for authority to invest up to nearly $8 billion in the non-traditional domestic and international business. A consumer group has filed a motion to intervene in this proceeding. The current SEC authority is $3.9 billion, of which $3.6 billion has been invested as of December 31, 1998. Worldwide, Southern Energy develops and manages electricity and other energy related projects, including domestic energy trading and marketing. As the energy marketplace evolves, Southern Energy continues to position SOUTHERN to become a major competitor. During 1998, Southern Energy further refined its business strategy to focus on a few geographic regions of the world. In Asia, Southern Energy will focus primarily on China, the Philippines and India. In South America, Southern Energy will pursue opportunities in Brazil. In Europe, Southern Energy will concentrate efforts on the European Union countries. And in North America, Southern Energy will target efforts in Northeast, the Midwest, Texas and California. See Item 7 for SOUTHERN's Management's Discussion and Analysis under the heading "Future Earnings Potential" for additional information regarding this strategy. Reference is also made to Note 14 to the financial statements of SOUTHERN in Item 8 herein for additional information regarding SOUTHERN's segment and related information. In 1995, SOUTHERN, through its subsidiary Southern Energy, acquired SWEB, one of the United Kingdom's 12 regional electric distribution companies, for approximately $1.8 billion. In July 1996, a 25 percent interest in SWEB was sold to PP&L Resources. I-2 In June 1998, SOUTHERN through its subsidiary Southern Energy sold an additional 26% interest in SWEB to PP&L Resources for $170 million. SWEB is, to a limited extent, involved in power generation and certain non-regulated activities which include gas marketing and telecommunications. In mid-1997, the acquisition of CEPA was completed for a total net investment of $2.1 billion. CEPA is engaged in the business of developing, constructing, owning and operating electric power generation facilities. Its current operations include installed operating capacity of approximately 3,306 megawatts, with projects either completed or under development in the Philippines, the People's Republic of China, and India. (For additional information related to the acquisition of CEPA, reference is made to Note 13 to SOUTHERN's financial statements in Item 8 herein.) In 1997, Southern Energy also acquired a 26% interest in a German utility for approximately $820 million. In January 1998, Southern Energy entered into a joint venture with Vastar Resources, Inc. The two companies combined their energy trading and marketing operations to form a new full-service energy provider, Southern Company Energy Marketing. The joint venture agreement gives Southern Company Energy Marketing rights to market virtually all of Vastar's natural gas production over the next 10 years. In December 1998, Southern Energy completed its $537 million purchase of 1,267 megawatts of generating capacity from Commonwealth Electric. In addition, Southern Energy plans to add 685 megawatts of capacity at the plants. In late 1998, Southern Energy announced the $801 million planned acquisition of 3,065 megawatts of generating capacity from Pacific Gas & Electric in northern California. Additionally, Southern Energy announced plans to acquire from Orange and Rockland Utilities Inc. and Consolidated Edison Inc. in New York 1,776 megawatts of capacity for $480 million. These transactions are expected to close during 1999. Further, Southern Energy has announced plans to build or purchase an additional 980 megawatts of capacity in Texas and Wisconsin. Through Southern Company Energy Marketing, Southern Energy has also gained access to additional capacity through marketing agreements. Southern Energy additionally has access to almost 2,000 megawatts of capacity through marketing agreements with Sithe Energies in New York and Brazos Electric Cooperative in Texas. After refining its international focus and reviewing the financial performance of existing assets, Southern Energy announced plans to sell its holdings in Edelnor in Chile and Alicura in Argentina. As a result, Southern Energy recorded a write down of $200 million, after taxes, in December 1998 related to these holdings. Because of regulatory and market conditions, these assets did not meet expectations. In January 1999, Mobile Energy, an indirect subsidiary of SOUTHERN, and its direct parent filed petitions for Chapter 11 bankruptcy relief in the U.S. Bankruptcy Court for the Southern District of Alabama. For additional information regarding this matter, reference is made to Item 3 - LEGAL PROCEEDINGS herein. See Item 2 - PROPERTIES - "Other Electric Generation Facilities" herein for additional information regarding Southern Energy projects. Southern Energy and Energy Solutions render consulting services and market SOUTHERN system expertise in the United States and throughout the world. They contract with other public utilities, commercial concerns and government agencies for the rendition of services and the licensing of intellectual property. More specifically, Energy Solutions is focusing on new and existing programs to enhance customer satisfaction and efficiency and stockholder value, such as: Good Cents, an energy efficiency program for electric utility customers; Energy Services, providing total energy solutions to industrial and commercial customers; Heat Pump financing for residential customers; and telecommunications operations and security monitoring for both commercial and residential customers. In 1995, Southern LINC began serving SOUTHERN's operating affiliates and marketing its services to non-affiliates within the Southeast. Its system covers 122,000 square miles and combines the functions of two-way radio dispatch, cellular phone, short text and numeric messaging and wireless data transfer. In the spring of 1999, Southern LINC will add more than 7,000 square miles to its present coverage area. These continuing efforts to invest in and develop new business opportunities offer the potential of earning returns which may exceed those of rate-regulated operations. However, these activities also involve a higher degree of risk. SOUTHERN expects to make substantial investments over the period 1999-2001 in these and other new businesses. I-3 Certain Factors Affecting the Industry Various factors are currently affecting the electric utility industry in general, including increasing competition and the regulatory changes related thereto, costs required to comply with environmental regulations, and the potential for new business opportunities (with their associated risks) outside of traditional rate-regulated operations. The effects of these and other factors on the SOUTHERN system are described herein. Particular reference is made to Item 1 - BUSINESS - "Non-Traditional Business," "Competition" and "Environmental Regulation." Construction Programs The subsidiary companies of SOUTHERN are engaged in continuous construction programs to accommodate existing and estimated future loads on their respective systems. Construction additions or acquisitions of property during 1999 through 2001 by the operating affiliates, SEGCO, SCS, Southern LINC and Southern Energy are estimated as follows: (in millions) ------------------------------ -------- --------- ---------- 1999 2000 2001 -------- --------- ---------- ALABAMA $ 875 $653 $ 668 GEORGIA 755 734 829 GULF 72 100 262 MISSISSIPPI 67 52 45 SAVANNAH 29 32 31 SEGCO 13 4 5 SCS 66 16 15 Southern LINC 46 19 14 Southern Energy* 630 481 230 Other 15 10 16 =========================== =========== ========= ========== SOUTHERN system $2,568 $2,101 $2,115 =========================== =========== ========= ========== *These construction estimates do not include amounts which may be expended by Southern Energy on future power production projects or by any subsidiaries created to effect such future projects. (See Item 1 - BUSINESS - "Non-Traditional Business" herein.) I-4
Estimated construction costs in 1999 are expected to be apportioned approximately as follows: (in millions) --------------------------------- --------------- --------------- ---------------- ----------- ---------------- --------- SOUTHERN system* ALABAMA GEORGIA GULF MISSISSIPPI SAVANNAH --------------- --------------- ---------------- ----------- ---------------- --------- Combustion turbines $ 345 $194 $144 $ - $ 7 $ - Other generating facilities including associated plant substations 799 196 93 17 10 5 New business 349 142 160 23 14 10 Transmission 329 136 130 9 12 3 Joint line and substation 42 - 34 8 - - Distribution 307 84 63 9 18 9 Nuclear fuel 120 63 57 - - - General plant 277 60 74 6 6 2 --------------- ---------- ---------------- ----------- ------------ ----------------- $2,568 $875 $755 $72 $67 $29 =============== ========== ================ =========== ============ =================
*Southern LINC, SCS and Southern Nuclear plan capital additions to general plant in 1999 of $46 million, $66 million and $270 thousand, respectively, while SEGCO plans capital additions of $13 million to generating facilities. Southern Energy plans capital additions of $465 million to generating facilities, $124 million to distribution facilities, $39 million to transmission facilities, and $2 million to general plant. These estimates do not reflect the possibility of Southern Energy's securing a contract(s) to buy or build additional generating facilities. Other non-traditional capital additions planned for 1999 are approximately $15 million. (See Item 1 - BUSINESS - "Non-Traditional Business" herein.) The construction programs are subject to periodic review and revision, and actual construction costs may vary from the above estimates because of numerous factors. These factors include changes in business conditions; revised load growth estimates; changes in environmental regulations; changes in existing nuclear plants to meet new regulatory requirements; increasing costs of labor, equipment and materials; and cost of capital. The operating affiliates have approximately 2,700 megawatts of combined cycle generation scheduled to be placed in service by 2001. In addition, significant construction will continue related to transmission and distribution facilities and the upgrading of generating plants. (See Item 2 - PROPERTIES - "Other Electric Generation Facilities" herein for additional information relating to facilities under development.) In 1991, the Georgia legislature passed legislation which requires GEORGIA and SAVANNAH each to file an Integrated Resource Plan for approval by the Georgia PSC. Under the plan rules, the Georgia PSC must pre-certify the construction of new power plants and new purchase power contracts. (See Item 1 - BUSINESS - "Rate Matters - Integrated Resource Planning" herein.) See Item 1 - BUSINESS - "Regulation - Environmental Regulation" herein for information with respect to certain existing and proposed environmental requirements and Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein for additional information concerning ALABAMA's and GEORGIA's joint ownership of certain generating units and related facilities with certain non-affiliated utilities. Year 2000 Reference is made to each registrant's "Management's Discussion and Analysis - Year 2000" in Item 7 herein for information relating to Year 2000 issues. I-5 Financing Programs In 1998, SOUTHERN raised net proceeds of $109 million from the issuance of common stock under SOUTHERN's various stock plans. Also in 1998, SOUTHERN issued a total of $350 million in trust preferred securities for the direct benefit of SOUTHERN. SOUTHERN plans to issue additional equity capital in 1999. The amount and timing of additional equity capital to be raised in 1999, as well as subsequent years, will be contingent on SOUTHERN's investment opportunities. Equity capital can be provided from any combination of public offerings, private placements, or SOUTHERN's stock plans. Any portion of the common stock required during 1999 for SOUTHERN's stock plans that is not provided from the issuance of new stock will be acquired on the open market in accordance with the terms of such plans. The operating affiliates plan to obtain the funds required for construction and other purposes from sources similar to those used in the past, which were primarily from internal sources. However, the type and timing of any financings - - - - - - - -- if needed -- will depend on market conditions and regulatory approval. Historically the operating affiliates have relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for their benefit by public authorities, to meet their long-term external financing requirements. Recently, financings have consisted of unsecured debt and trust preferred securities. In this regard, the operating affiliates sought and obtained stockholder approval in 1997 and 1998 to amend their respective corporate charters eliminating restrictions on the amount of unsecured indebtedness they may incur. Short-term debt is often utilized as appropriate at SOUTHERN and the operating affiliates. The maximum amounts of short-term or term-loan indebtedness authorized by the appropriate regulatory authorities are shown on the following table: Outstanding at Amount December 31, 1998 ------------ --------------------- (in millions) ALABAMA $ 750 (1) $0 GEORGIA 1,700 (2) 340.9 GULF 300(1) 58.5 MISSISSIPPI 350(1) 93.0 SAVANNAH 90(2) 30.0 SOUTHERN 2,000(1) 738.3 ------------------ -------------- -- ------------------- Notes: (1) ALABAMA's authority is based on authorization received from the Alabama PSC, which expires December 31, 2000. No SEC authorization is required for ALABAMA. GULF, MISSISSIPPI and SOUTHERN have received SEC authorization to issue from time to time short-term and/or term-loan notes to banks and commercial paper to dealers in the amounts shown through December 31, 2003, December 31, 2002 and March 31, 2001, respectively. (2) GEORGIA and SAVANNAH have received SEC authorization to issue from time to time short-term and term-loan notes to banks and commercial paper to dealers in the amounts shown through December 31, 2002. Authorization for term-loan indebtedness is also required by the Georgia PSC. At December 31, 1998, GEORGIA had remaining authority of $920 million expiring December 31, 1999. SAVANNAH has applied for authority from the Georgia PSC for $70 million expiring December 31, 2000. Reference is made to Note 5 to the financial statements for SOUTHERN, ALABAMA, GULF, MISSISSIPPI and SAVANNAH and Note 9 to the financial statements for GEORGIA in Item 8 herein for information regarding the registrants' credit arrangements. New projects undertaken by subsidiaries of Southern Energy are generally financed through a combination of equity funds provided by SOUTHERN and non-recourse debt incurred on a project-specific basis. I-6 Fuel Supply The operating affiliates' and SEGCO's supply of electricity is derived predominantly from coal. The sources of generation for the years 1996 through 1998 and the estimates for 1999 are shown below: Oil and ALABAMA Coal Nuclear Hydro Gas --------- ---------- --------- --------- 1996 72 20 8 * 1997 72 20 8 * 1998 72 18 8 2 1999 72 19 7 2 GEORGIA 1996 74 22 3 1 1997 75 22 2 1 1998 73 22 3 2 1999 74 22 3 1 GULF 1996 99 ** ** 1 1997 100 ** ** * 1998 98 ** ** 2 1999 99 ** ** 1 MISSISSIPPI 1996 85 ** ** 15 1997 85 ** ** 15 1998 80 ** ** 20 1999 83 ** ** 17 SAVANNAH 1996 90 ** ** 10 1997 87 ** ** 13 1998 76 ** ** 24 1999 87 ** ** 13 SEGCO 1996 100 ** ** * 1997 100 ** ** * 1998 100 ** ** * 1999 100 ** ** * SOUTHERN system*** 1996 77 17 4 2 1997 77 17 4 2 1998 76 16 4 4 1999 77 17 4 2 ---------- ------- --------- ---------- --------- --------- *Less than 0.5%. **Not applicable. ***Amounts shown for the SOUTHERN system are weighted averages of the operating affiliates and SEGCO. The average costs of fuel in cents per net kilowatt-hour generated for 1996 through 1998 are shown below: 1996 1997 1998 -------------- --------------- --------------- ALABAMA 1.46 1.49 1.54 GEORGIA 1.35 1.32 1.36 GULF 2.02 1.99 1.69 MISSISSIPPI 1.57 1.54 1.62 SAVANNAH 2.42 2.27 2.33 SEGCO 1.72 1.51 1.53 SOUTHERN System* 1.48 1.46 1.48 - - - - - - - ------------------- -------------- --------------- --------------- * Amounts shown for the SOUTHERN system are weighted averages of the operating affiliates and SEGCO. See SELECTED FINANCIAL DATA in Item 6 herein for each registrant's source of energy supply. I-7 As of February 12, 1999, the operating affiliates and SEGCO had stockpiles of coal on hand at their respective coal-fired plants which represented an estimated 19 days of recoverable supply for bituminous coal and 24 days for sub-bituminous coal. It is estimated that approximately 68.0 million tons of coal will be consumed in 1999 by the operating affiliates and SEGCO (including those units GEORGIA owns jointly with OPC, MEAG and Dalton and operates for FP&L and JEA and the units ALABAMA owns jointly with AEC). The operating affiliates and SEGCO currently have 45 coal contracts. These contracts cover remaining terms of up to 13 years. Approximately 22% of 1999 estimated coal requirements will be purchased in the spot market. Management has set a goal whereby the spot market should be utilized, absent the transition from coal contract expirations, for 20 to 30% of the SOUTHERN system's coal supply. Additionally, it has been determined that approximately 30 days of recoverable supply is the appropriate level for coal stockpiles. During 1998, the operating affiliates' and SEGCO's average price of coal delivered was approximately $36.39 per ton. In 1998, the weighted average sulfur content of all coal purchased by the operating affiliates and SEGCO for use in the coal-fired facilities was 0.89% sulfur. This sulfur level allowed the operating affiliates and SEGCO to remain well below the limits as set forth by Phase I of the Clean Air Act Amendments of 1990. With the approach of Phase II of the Clean Air Act in 2000, the operating affiliates and SEGCO have secured sufficient quantities of lower sulfur coal to help meet the more stringent Phase II sulfur requirements. As more and more strict environmental regulations are proposed that impact the utilization of coal, the fuel mix will be monitored to insure that sufficient quantities of the proper type of coal or natural gas are in place to remain in compliance with applicable laws and regulations. See Item 1 - BUSINESS - "Regulation - Environmental Regulation" herein. Changes in fuel prices are generally reflected in fuel adjustment clauses contained in rate schedules. See Item 1 - BUSINESS - "Rate Matters - Rate Structure" herein. ALABAMA owns coal lands and mineral rights in the Warrior Coal Field, located northwest of Birmingham in the vicinity of its Gorgas Steam Plant. SEGCO also owns coal reserves in the Warrior Coal Field and in the Cahaba Coal Field, which is located southwest of Birmingham. ALABAMA has agreements with non-affiliated mining firms to mine coal from ALABAMA's reserves, as well as their own reserves, for supply to ALABAMA's generating units. The operating affiliates have renegotiated, bought out or otherwise terminated various coal supply contracts. For more information on certain of these transactions, see Note 5 to the financial statements of GULF in Item 8 herein. ALABAMA and GEORGIA have numerous contracts covering a portion of their nuclear fuel needs for uranium, conversion services, enrichment services and fuel fabrication. These contracts have varying expiration dates and most are short to medium term (less than 10 years). Management believes that sufficient capacity for nuclear fuel supplies and processing exists to preclude the impairment of normal operations of the SOUTHERN system's nuclear generating units. ALABAMA and GEORGIA have contracts with the DOE that provide for the permanent disposal of spent nuclear fuel. Although disposal was scheduled to begin in 1998, the actual year this service will begin is uncertain. The DOE failed to begin disposing of spent fuel in January 1998, as required by the contracts, and the companies are pursuing legal remedies against the government for breach of contract. Sufficient on-site storage capacity currently is available to permit operation into 2003 at Plant Hatch, into 2017 at Plant Vogtle, and into 2009 and 2013 at Plant Farley units 1 and 2, respectively. Plant Vogtle's spent fuel storage capacity includes the installation in 1998 of additional rack capacity. Activities for adding dry cask storage capacity at Plant Hatch by as early as 1999 are in progress. The Energy Act imposed upon utilities with nuclear plants, including ALABAMA and GEORGIA, obligations for the decontamination and decommissioning of federal nuclear fuel enrichment facilities. See Note 1 to SOUTHERN's, ALABAMA's and GEORGIA's financial statements in Item 8 herein. I-8 Territory Served By Operating Affiliates The territory in which the operating affiliates provide electric service comprises most of the states of Alabama and Georgia together with the northwestern portion of Florida and southeastern Mississippi. In this territory there are non-affiliated electric distribution systems which obtain some or all of their power requirements either directly or indirectly from the operating affiliates. The territory has an area of approximately 120,000 square miles and an estimated population of approximately 11 million. ALABAMA is engaged, within the State of Alabama, in the generation and purchase of electricity and the distribution and sale of such electricity at retail in over 1,000 communities (including Anniston, Birmingham, Gadsden, Mobile, Montgomery and Tuscaloosa) and at wholesale to 15 municipally-owned electric distribution systems, 11 of which are served indirectly through sales to AMEA, and two rural distributing cooperative associations. ALABAMA also supplies steam service in downtown Birmingham. ALABAMA owns coal reserves near its steam-electric generating plant at Gorgas and uses the output of coal from these reserves in some of its generating plants. ALABAMA also sells, and cooperates with dealers in promoting the sale of, electric appliances. GEORGIA is engaged in the generation and purchase of electricity and the distribution and sale of such electricity within the State of Georgia at retail in over 600 communities, as well as in rural areas, and at wholesale currently to OPC, MEAG, the City of Dalton and the City of Hampton. GULF is engaged, within the northwestern portion of Florida, in the generation and purchase of electricity and the distribution and sale of such electricity at retail in 71 communities (including Pensacola, Panama City and Fort Walton Beach), as well as in rural areas, and at wholesale to a non-affiliated utility and a municipality. GULF also sells electric appliances. MISSISSIPPI is engaged in the generation and purchase of electricity and the distribution and sale of such energy within the 23 counties of southeastern Mississippi, at retail in 123 communities (including Biloxi, Gulfport, Hattiesburg, Laurel, Meridian and Pascagoula), as well as in rural areas, and at wholesale to one municipality, six rural electric distribution cooperative associations and one generating and transmitting cooperative. SAVANNAH is engaged, within a five-county area in eastern Georgia, in the generation and purchase of electricity and the distribution and sale of such electricity at retail and, as a member of the SOUTHERN system power pool, the transmission and sale of wholesale energy. For information relating to kilowatt-hour sales by classification for each registrant, reference is made to "Management's Discussion and Analysis-Revenues" in Item 7 herein. Also, for information relating to the sources of revenues for the Southern system and each of the operating affiliates, reference is made to Item 6 herein. A portion of the area served by SOUTHERN's operating affiliates adjoins the area served by TVA and its municipal and cooperative distributors. An Act of Congress limits the distribution of TVA power, unless otherwise authorized by Congress, to specified areas or customers which generally were those served on July 1, 1957. The RUS has authority to make loans to cooperative associations or corporations to enable them to provide electric service to customers in rural sections of the country. There are 71 electric cooperative organizations operating in the territory in which the operating affiliates provide electric service at retail or wholesale. One of these, AEC, is a generating and transmitting cooperative selling power to several distributing cooperatives, municipal systems and other customers in south Alabama and northwest Florida. AEC owns generating units with approximately 840 megawatts of nameplate capacity, including an undivided ownership interest in ALABAMA's Plant Miller Units 1 and 2. AEC's facilities were financed with RUS loans secured by long-term contracts requiring distributing cooperatives to take their requirements from AEC to the extent such energy is available. Two of the 14 distributing cooperatives operating in ALABAMA's service territory obtain a portion of their power requirements directly from ALABAMA. I-9 Four electric cooperative associations, financed by the RUS, operate within GULF's service area. These cooperatives purchase their full requirements from AEC and SEPA. A non-affiliated utility also operates within GULF's service area and purchases a portion of its requirements from GULF. ALABAMA and GULF have entered into separate agreements with AEC involving interconnection between the respective systems. The delivery of capacity and energy from AEC to certain distributing cooperatives in the service areas of ALABAMA and GULF is governed by SOUTHERN's AEC Network Transmission Service Agreement. The rates for this service to AEC are based on the negotiated agreement on file with the FERC. See Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein for details of ALABAMA's joint-ownership with AEC of a portion of Plant Miller. MISSISSIPPI has an interchange agreement with SMEPA, a generating and transmitting cooperative, pursuant to which various services are provided, including the furnishing of protective capacity by MISSISSIPPI to SMEPA. SMEPA has a generating capacity of 739,000 kilowatts and a transmission system estimated to be 1,357 miles in length. There are 43 electric cooperative organizations operating in, or in areas adjoining, territory in the State of Georgia in which GEORGIA provides electric service at retail or wholesale. Three of these organizations obtain their power from TVA and one from other sources. Since July 1, 1975, OPC has supplied the requirements of the remaining 39 of these cooperative organizations from self-owned generation acquired from GEORGIA and, until September 1991, through partial requirements purchases from GEORGIA. GEORGIA entered into a power coordination agreement with OPC pursuant to which, effective in September 1991, OPC ceased to be a partial requirements wholesale customer of GEORGIA. Instead, OPC began the purchase of 1,250 megawatts of capacity from GEORGIA through 1999, subject to reduction or extension by OPC, and may satisfy the balance of its needs through purchases from others. OPC decreased its purchases of capacity by 250 megawatts each in September 1996, 1997 and 1998 and has notified GEORGIA of its intent to decrease purchases of capacity by an additional 250 megawatts in September 1999 and 125 megawatts in September 2000. In December 1997, a revised power coordination agreement was implemented between GEORGIA and OPC. Under the amended 1995 Integrated Resource Plan approved by the Georgia PSC in March 1997, the resources associated with the decreased purchases by OPC in 1996, 1997 and 1998 will be used to meet the needs of GEORGIA's retail customers through 2004. There are 65 municipally-owned electric distribution systems operating in the territory in which SOUTHERN's operating affiliates provide electric service at retail or wholesale. AMEA was organized under an act of the Alabama legislature and is comprised of 11 municipalities. In 1986, ALABAMA entered into a firm power purchase contract with AMEA entitling AMEA to scheduled amounts of capacity (to a maximum of 100 megawatts) for a period of 15 years commencing September 1, 1986. In October 1991, ALABAMA entered into a second firm power purchase contract with AMEA entitling AMEA to scheduled amounts of additional capacity (to a maximum 80 megawatts) for a period of 15 years commencing October 1, 1991. In both contracts the power will be sold to AMEA for its member municipalities that previously were served directly by ALABAMA as wholesale customers. Under the terms of the contracts, ALABAMA received payments from AMEA representing the net present value of the revenues associated with the respective capacity entitlements. See Note 7 to ALABAMA's financial statements in Item 8 herein for further information on these contracts. Forty-eight municipally-owned electric distribution systems and one county-owned system receive their requirements through MEAG, which was established by a state statute in 1975. MEAG serves these requirements from self-owned generation facilities acquired from GEORGIA and purchases from others. In August 1997, a power coordination agreement was implemented between GEORGIA and MEAG that replaced the partial requirements tariff pursuant to which GEORGIA previously sold wholesale energy to MEAG. Since 1977, Dalton has filled its requirements from generation facilities acquired from GEORGIA and through partial requirements purchases. One municipally-owned electric distribution system's full requirements are served under a market-based contract by GEORGIA. (See Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein.) I-10 GULF and MISSISSIPPI provide wholesale requirements for one municipal system each. GEORGIA has entered into substantially similar agreements with Georgia Transmission Corporation (formerly OPC's transmission division), MEAG and Dalton providing for the establishment of an integrated transmission system to carry the power and energy of each. The agreements require an investment by each party in the integrated transmission system in proportion to its respective share of the aggregate system load. (See Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein.) SCS, acting on behalf of ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH, also has a contract with SEPA (a federal power marketing agency) providing for the use of those companies' facilities at government expense to deliver to certain cooperatives and municipalities, entitled by federal statute to preference in the purchase of power from SEPA, quantities of power equivalent to the amounts of power allocated to them by SEPA from certain United States Government hydroelectric projects. The retail service rights of all electric suppliers in the State of Georgia are regulated by the 1973 State Territorial Electric Service Act. Pursuant to the provisions of this Act, all areas within existing municipal limits were assigned to the primary electric supplier therein on March 29, 1973 (451 municipalities, including Atlanta, Columbus, Macon, Augusta, Athens, Rome and Valdosta, to GEORGIA; 115 to electric cooperatives; and 50 to publicly-owned systems). Areas outside of such municipal limits were either to be assigned or to be declared open for customer choice of supplier by action of the Georgia PSC pursuant to standards set forth in the Act. Consistent with such standards, the Georgia PSC has assigned substantially all of the land area in the state to a supplier. Notwithstanding such assignments, the Act provides that any new customer locating outside of 1973 municipal limits and having a connected load of at least 900 kilowatts may receive electric service from the supplier of its choice. (See also Item 1 - BUSINESS - "Competition" herein.) Under and subject to the provisions of its franchises and concessions and the 1973 State Territorial Electric Service Act, SAVANNAH has the full but nonexclusive right to serve the City of Savannah, the Towns of Bloomingdale, Pooler, Garden City, Guyton, Newington, Oliver, Port Wentworth, Rincon, Tybee Island, Springfield, Thunderbolt, Vernonburg, and in conjunction with a secondary supplier, the Town of Richmond Hill. In addition, SAVANNAH has been assigned certain unincorporated areas in Chatham, Effingham, Bryan, Bulloch and Screven Counties by the Georgia PSC. (See also Item 1 - BUSINESS - "Competition" herein.) Pursuant to the 1956 Utility Act, the Mississippi PSC issued "Grandfather Certificates" of public convenience and necessity to MISSISSIPPI and to six distribution rural cooperatives operating in southeastern Mississippi, then served in whole or in part by MISSISSIPPI, authorizing them to distribute electricity in certain specified geographically described areas of the state. The six cooperatives serve approximately 300,000 retail customers in a certificated area of approximately 10,300 square miles. In areas included in a "Grandfather Certificate," the utility holding such certificate may, without further certification, extend its lines up to five miles; other extensions within that area by such utility, or by other utilities, may not be made except upon a showing of, and a grant of a certificate of, public convenience and necessity. Areas included in such a certificate which are subsequently annexed to municipalities may continue to be served by the holder of the certificate, irrespective of whether it has a franchise in the annexing municipality. On the other hand, the holder of the municipal franchise may not extend service into such newly annexed area without authorization by the Mississippi PSC. Long-Term Power Sales Agreements Reference is made to Note 7 to the financial statements for SOUTHERN, ALABAMA, GEORGIA, GULF and MISSISSIPPI in Item 8 herein for information regarding contracts for the sales of capacity and energy to non-territorial customers. I-11 Competition The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Energy Act allows independent power producers (IPPs) to access a utility's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for a utility's large industrial and commercial customers, and sell energy generation to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. SOUTHERN is aggressively working to maintain and expand its share of wholesale sales in the Southeastern power markets. Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While various restructuring and competition initiatives have been or are being discussed in Alabama, Florida, Georgia, and Mississippi, none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. The inability of an operating company to recover its investments, including the regulatory assets described in Note 1 to each registrant's respective financial statements, could have a material adverse effect on the financial condition of that operating company. The operating companies are attempting to minimize or reduce their cost exposure. Reference is made to Note 3 to the financial statements for SOUTHERN for information regarding these efforts. Continuing to be a low-cost producer could provide opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless SOUTHERN remains a low-cost producer and provides quality service, the company's retail energy sales growth could be limited, and this could significantly erode earnings. Reference is made to each registrant's "Management's Discussion and Analysis - Future Earnings Potential" in Item 7 herein for further discussion of competition. To adapt to a less regulated, more competitive environment, SOUTHERN continues to evaluate and consider a wide array of potential business strategies. These strategies may include business combinations, acquisitions involving other utility or non-utility businesses or properties, internal restructuring, disposition of certain assets, or some combination thereof. Furthermore, SOUTHERN may engage in other new business ventures that arise from competitive and regulatory changes in the utility industry. Pursuit of any of the above strategies, or any combination thereof, may significantly affect the business operations and financial condition of SOUTHERN. (See Item 1 - BUSINESS - - - - - - - - "Non-Traditional Business" herein.) As a result of the foregoing factors, SOUTHERN has experienced increasing competition for available off-system sales of capacity and energy from neighboring utilities and alternative sources of energy. Additionally, the future effect of cogeneration and small-power production facilities on the SOUTHERN system cannot currently be determined but may be adverse. ALABAMA currently has cogeneration contracts in effect with eleven industrial customers. Under the terms of these contracts, ALABAMA purchases excess generation of such companies. During 1998, ALABAMA purchased approximately 60 million kilowatt-hours from such companies at a cost of $1.2 million. GEORGIA currently has contracts in effect with six small power producers whereby GEORGIA purchases their excess generation. During 1998, GEORGIA purchased 5.0 million kilowatt-hours from such companies at a cost of $277,510. GEORGIA has entered into a 30-year purchase power agreement, which began in June 1998, for electricity from a 300-megawatt cogeneration facility. Payments are subject to reductions for failure to meet minimum capacity output. During 1998, GEORGIA purchased 732.8 million kilowatt-hours at a cost of $33 million from this facility. Reference is made to Note 4 to the financial statements for GEORGIA in Item 8 herein for information regarding purchase power commitments. I-12 GULF currently has agreements in effect with four industrial customers pursuant to which GULF purchases "as available" energy from customer-owned generation. During 1998, GULF purchased 151 million kilowatt-hours from such companies for $4.2 million. In 1996, MISSISSIPPI entered into agreements to purchase options for summer peaking power for the years 1997 through 2000. Also, MISSISSIPPI has purchased options from power marketers. Reference is made to Note 5 to the financial statements for MISSISSIPPI in Item 8 herein for information regarding fuel and purchased power commitments. SAVANNAH currently has cogeneration contracts in effect with six large customers. Under the terms of these contracts, SAVANNAH purchases excess generation of such companies. During 1998, SAVANNAH purchased 23 million kilowatt-hours from such companies at a cost of $1.3 million. The competition for retail energy sales among competing suppliers of energy is influenced by various factors, including price, availability, technological advancements and reliability. These factors are, in turn, affected by, among other influences, regulatory, political and environmental considerations, taxation and supply. The operating affiliates have experienced, and expect to continue to experience, competition in their respective retail service territories in varying degrees as the result of self-generation (as described above) and fuel switching by customers and other factors. (See also Item 1 - BUSINESS - "Territory Served By Operating Affiliates" herein for information concerning suppliers of electricity operating within or near the areas served at retail by the operating affiliates.) Regulation State Commissions The operating affiliates are subject to the jurisdiction of their respective state regulatory commissions, which have broad powers of supervision and regulation over public utilities operating in the respective states, including their rates, service regulations, sales of securities (except for the Mississippi PSC) and, in the cases of the Georgia PSC and Mississippi PSC, in part, retail service territories. (See Item 1 - BUSINESS - "Rate Matters" and "Territory Served By Operating Affiliates" herein.) In early 1999, the Florida PSC staff initiated informal discussions with GULF related to its authorized return on equity and the outstanding balances of certain regulatory assets. On March 2, 1999, GULF filed a petition with the Florida PSC proposing a reduction in its authorized return; the sharing of revenues above a certain earnings level, which included credits on customers' bills; and the write-off of certain regulatory assets. A recommendation by the Florida PSC staff was also filed with the Commission relating to the same issues. At the March 16, 1999, agenda conference, the Commission directed GULF and the Florida PSC staff to reconvene their discussions, working within a framework established by the Commission, and pursue a compromise to be presented at the April 20, 1999, agenda conference or shortly thereafter. Holding Company Act SOUTHERN is registered as a holding company under the Holding Company Act, and it and its subsidiary companies are subject to the regulatory provisions of said Act, including provisions relating to the issuance of securities, sales and acquisitions of securities and utility assets, services performed by SCS and Southern Nuclear, and the activities of certain of SOUTHERN's special purpose subsidiaries. While various proposals have been introduced in Congress regarding the Holding Company Act, the prospects for legislative reform or repeal are uncertain at this time. I-13 Federal Power Act The Federal Power Act subjects the operating affiliates and SEGCO to regulation by the FERC as companies engaged in the transmission or sale at wholesale of electric energy in interstate commerce, including regulation of accounting policies and practices. Reference is made to Note 3 to each registrant's financial statements (except SAVANNAH) in Item 8 herein for further information regarding FERC Reviews of Equity Returns. ALABAMA and GEORGIA are also subject to the provisions of the Federal Power Act or the earlier Federal Water Power Act applicable to licensees with respect to their hydroelectric developments. Among the hydroelectric projects subject to licensing by the FERC are 14 existing ALABAMA generating stations having an aggregate installed capacity of 1,582,725 kilowatts and 18 existing GEORGIA generating stations having an aggregate installed capacity of 1,074,696 kilowatts. GEORGIA filed, in September, 1996, with the FERC, a notice of its intent to seek a new license for the Flint River Project. GEORGIA is required to file a new license by September 1999. GEORGIA filed an application for a new license for the Flint River Project (FERC Project Number 1218) in November 1998 with the FERC. The application contained an APEA. The FERC noticed the application in the Federal Register on January 15, 1999. Comments on the APEA are due by March 1999. Since all outstanding issues were resolved prior to the submittal of the APEA, GEORGIA anticipates that a license will be issued by the FERC by the summer or fall of 1999. GEORGIA has also started the relicensing process for the Middle Chattahoochee Project (FERC Project Number 2177). This project consists of the Goat Rock, Oliver, and North Highlands facilities. GEORGIA again plans to use the APEA process. Initial scoping and stakeholder involvement has occurred. GEORGIA is developing its final scoping document that outlines the proposed environmental studies. Initial field work is anticipated to start in the second quarter of 1999. GEORGIA and OPC also have a license, expiring in 2027, for the Rocky Mountain Plant, a pure pumped storage facility of 847,800 kilowatt capacity which began commercial operation in 1995. (See Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein and Note 3 to SOUTHERN's and GEORGIA's financial statements in Item 8 herein for additional information.) Licenses for all projects, excluding those discussed above, expire in the period 2007-2033 in the case of ALABAMA's projects and in the period 2005-2036 in the case of GEORGIA's projects. Upon or after the expiration of each license, the United States Government, by act of Congress, may take over the project, or the FERC may relicense the project either to the original licensee or to a new licensee. In the event of takeover or relicensing to another, the original licensee is to be compensated in accordance with the provisions of the Federal Power Act, such compensation to reflect the net investment of the licensee in the project, not in excess of the fair value of the property taken, plus reasonable damages to other property of the licensee resulting from the severance therefrom of the property taken. Atomic Energy Act of 1954 ALABAMA, GEORGIA and Southern Nuclear are subject to the provisions of the Atomic Energy Act of 1954, as amended, which vests jurisdiction in the NRC over the construction and operation of nuclear reactors, particularly with regard to certain public health and safety and antitrust matters. The National Environmental Policy Act has been construed to expand the jurisdiction of the NRC to consider the environmental impact of a facility licensed under the Atomic Energy Act of 1954, as amended. NRC operating licenses currently expire in June 2017 and March 2021 for Plant Farley units 1 and 2, respectively, in August 2014 and June 2018 for Plant Hatch units 1 and 2, respectively, and in January 2027 and February 2029 for Plant Vogtle units 1 and 2, respectively. Reference is made to Notes 1 and 12 to SOUTHERN's, Notes 1 and 12 to ALABAMA's and Notes 1 and 5 to GEORGIA's financial statements in Item 8 herein for information on nuclear decommissioning costs and nuclear insurance. Additionally, Note 3 to GEORGIA's financial statements contains information I-14 regarding nuclear performance standards imposed by the Georgia PSC that may impact retail rates. Environmental Regulation The operating affiliates and SEGCO are subject to federal, state and local environmental requirements which, among other things, control emissions of particulates, sulfur dioxide and nitrogen oxides into the air; the use, transportation, storage and disposal of hazardous and toxic waste; and discharges of pollutants, including thermal discharges, into waters of the United States. The operating affiliates and SEGCO expect to comply with such requirements, which generally are becoming increasingly stringent, through technical improvements, the use of appropriate combinations of low-sulfur fuel and chemicals, addition of environmental control facilities, changes in control techniques and reduction of the operating levels of generating facilities. Failure to comply with such requirements could result in the complete shutdown of individual facilities not in compliance as well as the imposition of civil and criminal penalties. Reference is made to each registrant's "Management's Discussion and Analysis" in Item 7 herein for a discussion of the Clean Air Act and other environmental legislation and proceedings. The operating affiliates' and SEGCO's estimated capital expenditures for environmental quality control facilities for the years 1999, 2000 and 2001 are as follows: (in millions) --------------------- --- ---------- ---------- ----------- 1999 2000 2001 ---------- ---------- ----------- ALABAMA $61.9 $57.6 $ 75.7 GEORGIA 32.2 53.3 102.8 GULF 4.5 4.3 1.2 MISSISSIPPI 9.0 - - SAVANNAH 0.1 0.2 - SEGCO 10.0 - - ---------- ---------- ----------- Total $117.7 $115.4 $179.7 ===================== === ========== ========== =========== *The foregoing estimates are included in the current construction programs. (See Item 1 - BUSINESS - "Construction Programs" herein.) Additionally, each operating affiliate and SEGCO has incurred costs for environmental remediation of various sites. Reference is made to each registrant's "Management's Discussion and Analysis" in Item 7 herein for information regarding the registrants' environmental remediation efforts. Also, see Note 3 to SOUTHERN's and GEORGIA's financial statements in Item 8 herein for information regarding the identification of sites that may require environmental remediation by GEORGIA and Note 3 to MISSISSIPPI's financial statements in Item 8 herein for information regarding a site that will require environmental remediation by MISSISSIPPI. The operating affiliates and SEGCO are unable to predict at this time what additional steps they may be required to take as a result of the implementation of existing or future quality control requirements for air, water and hazardous or toxic materials, but such steps could adversely affect system operations and result in substantial additional costs. The outcome of the matters mentioned above under "Regulation" cannot now be determined, except that these developments may result in delays in obtaining appropriate licenses for generating facilities, increased construction and operating costs, or reduced generation, the nature and extent of which, while not determinable at this time, could be substantial. Rate Matters Rate Structure The rates and service regulations of the operating affiliates are uniform for each class of service throughout their respective service areas. Rates for residential electric service are generally of the block type based upon kilowatt-hours used and include minimum charges. Residential and other rates contain separate customer charges. Rates for commercial service are presently of the block type and, for large customers, the billing demand is generally used to determine capacity and minimum bill charges. These large customers' rates are generally based upon usage by the customer including those with special features to encourage off-peak usage. Additionally, the operating affiliates are allowed by their respective PSCs to negotiate the terms and compensation of service to large customers. Such terms and I-15 compensation of service, however, are subject to final PSC approval. ALABAMA, GEORGIA and SAVANNAH are allowed by state law to recover fuel and net purchased energy costs through fuel cost recovery provisions which are adjusted to reflect increases or decreases in such costs. GULF recovers from retail customers costs of fuel, net purchased power, energy conservation and environmental compliance through provisions which are adjusted to reflect increases or decreases in such costs. GULF's recovery of these costs is based upon an annual projection - any over/under recovery during such period is reflected in a subsequent annual period with interest. With respect to MISSISSIPPI's retail rates, fuel and purchased power costs above base levels included in the various rate schedules are billed to such customers under the fuel and energy adjustment clause. The adjustment factors for MISSISSIPPI's retail and wholesale rates are generally levelized based on the estimated energy cost for the year, adjusted for any actual over/under collection from the previous year. However, in January 1998, MISSISSIPPI received approval from the Mississippi PSC to levelize and fix its Fuel Adjustment Factors for January 1998 through December 2000. Revenues are adjusted for differences between recoverable fuel costs and amounts actually recovered in current rates. Rate Proceedings Reference is made to Note 3 to each registrant's financial statements in Item 8 herein for a discussion of rate matters. For each registrant (except SAVANNAH), such Note 3 includes a discussion of proceedings relating to the reasonableness of certain of the Southern electric system's wholesale rate schedules and contracts. Integrated Resource Planning In 1991, the Georgia legislature passed certain legislation under which both GEORGIA and SAVANNAH must file Integrated Resource Plans for approval by the Georgia PSC. The plans must specify how GEORGIA and SAVANNAH each intends to meet the future electrical needs of their customers through a combination of demand-side and supply-side resources. The Georgia PSC must pre-certify these new resources. Once certified, all prudently incurred construction costs and purchased power costs will be recoverable through rates. In March 1997, the Georgia PSC approved amendments to GEORGIA's 1995 Integrated Resource Plan. Pursuant to the amended plan, the Georgia PSC certified a five-year purchase power agreement scheduled to begin in June 2000 for approximately 215 megawatts. Capacity and fixed operation and maintenance payments are estimated to be between $7 million and $8 million each year. Also under the amended plan, resources associated with decreased purchases of 250 megawatts each in 1996, 1997 and 1998 by OPC under a power supply agreement will be used to meet the needs of GEORGIA's retail customers through 2004. In July 1998, the Georgia PSC approved GEORGIA's and SAVANNAH's 1998 Integrated Resource Plans as filed, with minor modifications. The approved plans identify resource needs of approximately 800 megawatts to 1,200 megawatts starting in the summer of 2002. As a result, GEORGIA and SAVANNAH issued a joint request for proposals for their collective needs of 800 megawatts to 1,200 megawatts for 2002 and 2003. The bids will be evaluated against self-build options, and a Certification Filing for the selected resources is expected to be filed with the Georgia PSC in August 1999. Environmental Cost Recovery Plans GULF and MISSISSIPPI both have retail rate mechanisms that provide for recovery of environmental compliance costs. For a description of these plans, see Note 3 to GULF's and MISSISSIPPI's financial statements in Item 8 herein. I-16 Employee Relations The companies of the SOUTHERN system had a total of 31,848 employees on their payrolls at December 31, 1998. -------------------------------- --- ------------------------- Employees at December 31, 1998 ------------------------- ALABAMA 6,631 GEORGIA 8,371 GULF 1,328 MISSISSIPPI 1,230 SAVANNAH 542 SCS 3,445 Southern Energy* 6,642 Southern Nuclear 3,054 Other 605 -------------------------------- --- ------------------------- Total 31,848 ================================ === ========================= *Includes 5,670 employees on international payrolls. The operating affiliates have separate agreements with local unions of the IBEW generally covering wages, working conditions and procedures for handling grievances and arbitration. These agreements apply with certain exceptions to operating, maintenance and construction employees. ALABAMA has agreements with the IBEW on a three-year contract extending to August 14, 2001. Upon notice given at least 60 days prior to that date, negotiations may be initiated with respect to agreement terms to be effective after such date. GEORGIA has an agreement with the IBEW covering wages and working conditions, which is in effect through June 30, 1999. GULF has an agreement with the IBEW on a three-year contract extending to August 15, 2001. MISSISSIPPI has an agreement with the IBEW on a four-year contract extending to August 16, 2002. SAVANNAH has three-year labor agreements with the IBEW and the Office and Professional Employees International Union that expire April 16, 1999 and December 1, 1999, respectively. Currently, SAVANNAH is in negotiations with the IBEW. Southern Energy has a 5-year labor agreement with the IBEW extending to October 31, 2002, and the United Paperworkers International Union extending to June 1, 2002, covering employees of Mobile Energy. At its State Line facility in Hammond, Indiana, Southern Energy has a labor contract with the United Steel Workers that extends to January 1, 2004. Southern Energy Canal located in Sandwich, Massachusetts, and Southern Energy Kendall located in Cambridge, Massachusetts, both subsidiaries of Southern Energy, have contracts with the Utilities Workers' Union of America which expire on June 1, 2001 and March 1, 2001, respectively. Southern Nuclear has agreements with the IBEW on separate three-year contracts extending to August 15, 2001 for Plant Farley and to July 1, 1999 for Plants Hatch and Vogtle. Upon notice given at least 60 days prior to these dates, negotiations may be initiated with respect to agreement terms to be effective after such dates. Southern Nuclear also has an agreement with the United Plant Guard Workers of America for security officers at Plant Hatch extending to September 30, 2001. Upon notice given at least 60 days prior to that date, negotiations may be initiated with respect to agreement terms to be effective after such date. The agreements also subject the terms of the pension plans for the companies discussed above to collective bargaining with the unions at five-year intervals. I-17 Item 2. PROPERTIES Electric Properties The operating affiliates and SEGCO, at December 31, 1998, operated 33 hydroelectric generating stations, 33 fossil fuel generating stations and three nuclear generating stations. The amounts of capacity owned by each company are shown in the table below. ------------------------- ------------------------------------- Nameplate Generating Station Location Capacity (1) ------------------------- ------------------- ----------------- (Kilowatts) Fossil Steam Gadsden Gadsden, AL 120,000 Gorgas Jasper, AL 1,221,250 Barry Mobile, AL 1,525,000 Chickasaw Chickasaw, AL 40,000 Greene County Demopolis, AL 300,000 (2) Gaston Unit 5 Wilsonville, AL 880,000 Miller Birmingham, AL 2,532,288 (3) --------- ALABAMA Total 6,618,538 --------- Arkwright Macon, GA 160,000 Atkinson Atlanta, GA 180,000 Bowen Cartersville, GA 3,160,000 Branch Milledgeville, GA 1,539,700 Hammond Rome, GA 800,000 McDonough Atlanta, GA 490,000 McManus Brunswick, GA 115,000 Mitchell Albany, GA 170,000 Scherer Macon, GA 750,924 (4) Wansley Carrollton, GA 925,550 (5) Yates Newnan, GA 1,250,000 --------- GEORGIA Total 9,541,174 --------- Crist Pensacola, FL 1,045,000 Lansing Smith Panama City, FL 305,000 Scholz Chattahoochee, FL 80,000 Daniel Pascagoula, MS 500,000 (6) Scherer Unit 3 Macon, GA 204,500 (4) ----------- GULF Total 2,134,500 --------- Eaton Hattiesburg, MS 67,500 Sweatt Meridian, MS 80,000 Watson Gulfport, MS 1,012,000 Daniel Pascagoula, MS 500,000 (6) Greene County Demopolis, AL 200,000 (2) ----------- MISSISSIPPI Total 1,859,500 ----------- ---------------------------------------------- ---------------- ------------------------- ----------------------------------------- Nameplate Generating Station Location Capacity ---------------------- ------------------------- ------------------ (Kilowatts) McIntosh Effingham County, GA 163,117 Kraft Port Wentworth, GA 281,136 Riverside Savannah, GA 102,278 ----------- SAVANNAH Total 546,531 ----------- Gaston Units 1-4 Wilsonville, AL SEGCO Total 1,000,000 (7) ----------- Total Fossil Steam 21,700,243 ----------- Nuclear Steam Farley Dothan, AL ALABAMA Total 1,720,000 ----------- Hatch Baxley, GA 862,669 (8) Vogtle Augusta, GA 1,060,240 (9) ----------- GEORGIA Total 1,922,909 ---------- Total Nuclear Steam 3,642,909 ----------- Combustion Turbines Greene County Demopolis, AL ALABAMA Total 720,000 Arkwright Macon, GA 30,580 Atkinson Atlanta, GA 78,720 Bowen Cartersville, GA 39,400 Intercession City Intercession City, FL 47,333 (10) McDonough Atlanta, GA 78,800 McIntosh Units 1,2,3,4,7,8 Effingham County, GA 480,000 McManus Brunswick, GA 481,700 Mitchell Albany, GA 118,200 Robins Warner Robins, GA 160,000 Wilson Augusta, GA 354,100 Wansley Carrollton, GA 26,322 (5) ----------- GEORGIA Total 1,895,155 --------- Lansing Smith Unit A Panama City, FL 39,400 Pea Ridge Units 1-3 Pea Ridge, FL 14,250 GULF Total 53,650 Chevron Cogenerating Station Pascagoula, MS 147,292 (11) Sweatt Meridian, MS 39,400 Watson Gulfport, MS 39,360 --------- MISSISSIPPI Total 226,052 --------- ------------------------------------------------- ----------------- I-18 --------------------------- -------------------- ----------------- Nameplate Generating Station Location Capacity --------------------------- -------------------- ----------------- (Kilowatts) Boulevard Savannah, GA 59,100 Kraft Port Wentworth, GA 22,000 McIntosh Units 5&6 Effingham County, 160,000 ------- GA SAVANNAH Total 241,100 241,100 Gaston (SEGCO) Wilsonville, AL 19,680 (7) Total Combustion Turbines 3,155,637 Hydroelectric Facilities Weiss Leesburg, AL 87,750 Henry Ohatchee, AL 72,900 Logan Martin Vincent, AL 128,250 Lay Clanton, AL 177,000 Mitchell Verbena, AL 170,000 Jordan Wetumpka, AL 100,000 Bouldin Wetumpka, AL 225,000 Harris Wedowee, AL 135,000 Martin Dadeville, AL 154,200 Yates Tallassee, AL 32,000 Thurlow Tallassee, AL 58,000 Lewis Smith Jasper, AL 157,500 Bankhead Holt, AL 45,125 Holt Holt, AL 40,000 ----------- ALABAMA Total 1,582,725 ---------- Barnett Shoals (Leased) Athens, GA 2,800 Bartletts Ferry Columbus, GA 173,000 Goat Rock Columbus, GA 26,000 Lloyd Shoals Jackson, GA 14,400 Morgan Falls Atlanta, GA 16,800 North Highlands Columbus, GA 29,600 Oliver Dam Columbus, GA 60,000 Rocky Mountain Rome, GA 215,256 (12) Sinclair Dam Milledgeville, GA 45,000 Tallulah Falls Clayton, GA 72,000 Terrora Clayton, GA 16,000 Tugalo Clayton, GA 45,000 Wallace Dam Eatonton, GA 321,300 Yonah Toccoa, GA 22,500 6 Other Plants 18,080 ----------- GEORGIA Total 1,077,736 ---------- Total Hydroelectric Facilities 2,660,461 ----------- Total Generating Capacity 31,159,250 ------------------------------------------------ ----------------- Notes: (1) For additional information regarding facilities jointly-owned with non-affiliated parties, see Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein. (2) Owned by ALABAMA and MISSISSIPPI as tenants in common in the proportions of 60% and 40%, respectively. (3) Excludes the capacity owned by AEC. (4) Capacity shown for GEORGIA is 8.4% of Units 1 and 2 and 75% of Unit 3. Capacity shown for GULF is 25% of Unit 3. (5) Capacity shown is GEORGIA's portion (53.5%) of total plant capacity. (6) Represents 50% of the plant which is owned as tenants in common by GULF and MISSISSIPPI. (7) SEGCO is jointly-owned by ALABAMA and GEORGIA. (See Item 1 - BUSINESS herein.) (8) Capacity shown is GEORGIA's portion (50.1%) of total plant capacity. (9) Capacity shown is GEORGIA's portion (45.7%) of total plant capacity. (10) Capacity shown represents 33-1/3% of total plant capacity. GEORGIA owns a 1/3 interest in the unit with 100% use of the unit from June through September. FPC operates the unit. (11) Generation is dedicated to a single industrial customer. (12) Capacity shown is GEORGIA's portion (25.4%) of total plant capacity. OPC operates the plant. Except as discussed below under "Titles to Property," the principal plants and other important units of the operating affiliates and SEGCO are owned in fee by the respective companies. It is the opinion of management of each such company that its operating properties are adequately maintained and are substantially in good operating condition. MISSISSIPPI owns a 79-mile length of 500-kilovolt transmission line which is leased to Entergy Gulf States. The line, completed in 1984, extends from Plant Daniel to the Louisiana state line. Entergy Gulf States is paying a use fee over a forty-year period covering all expenses and the amortization of the original $57 million cost of the line. At December 31, 1998, the unamortized portion of this cost was $37 million. The all-time maximum demand on the operating affiliates and SEGCO was 28,933,700 kilowatts and occurred in June 1998. This amount excludes demand served by capacity retained by MEAG and Dalton and excludes demand associated I-19 with power purchased from OPC and SEPA by its preference customers. The reserve margin for the operating affiliates and SEGCO at that time was 12.8%. For additional information on peak demands, reference is made to Item 6 - SELECTED FINANCIAL DATA herein. ALABAMA and GEORGIA will incur significant costs in decommissioning their nuclear units at the end of their useful lives. (See Item 1 - BUSINESS - "Regulation - Atomic Energy Act of 1954" and Note 1 to SOUTHERN's, ALABAMA's and GEORGIA's financial statements in Item 8 herein.) Other Electric Generation Facilities Through special purpose subsidiaries, SOUTHERN owns interests in or operates independent power production facilities and foreign utility companies. The generating capacity of these utilities (or facilities) at December 31, 1998, was as follows:
Facilities in Operation ------------------------------------------------------------------------------------------------------------------ Megawatts of Capacity Percent Facility Location Units Owned Operated Ownership Type ---------------- --------------------------- --------- ------------ ------------- ----------------- ------------- Alicura Argentina 4 551 (1) 1,000 55.14 (1) Hydro BEWAG Germany 18 443 - 26.00 Coal BEWAG Germany 17 375 - 26.00 Oil & Gas Birchwood Virginia 1 111 222 50.00 Coal (2) CEPA China 3 634 - (3) 32.00 Coal CEPA Philippines 2 641 735 87.22 Coal CEPA Philippines 3 189 210 90.00 Oil CEPA Philippines 13 381 381 100.00 Oil CEMIG Brazil 33 193 - 3.60 Hydro CEMIG Brazil 2 5 - 3.60 Thermal CEMIG Brazil 1 - - 3.60 Wind Edelnor Chile 2 281 341 82.34 Coal Edelnor Chile 37 95 115 82.34 Oil Edelnor Chile 2 8 10 82.34 Hydro Freeport Grand Bahamas 8 79 126 62.50 Oil & Gas Mobile Energy Alabama 3 111 111 100.00 Waste/Biomass (2) Penal Trinidad and Tobago 5 92 236 39.00 Gas Port of Spain Trinidad and Tobago 6 120 308 39.00 Gas Pt. Lisas Trinidad and Tobago 10 247 634 39.00 Gas State Line Indiana 2 490 490 100.00 Coal SWEB United Kingdom 8 71 - (3) 3.77 Gas SWEB United Kingdom 12 8 16 49.00 Oil & Gas SWEB United Kingdom 3 3 - (3) 18.62 Wind SWEB United Kingdom 3 - - 12.25 Landfill Gas SE New England Maine 8 1,267 1,267 100.00 Oil & Gas ====================================================================================================================== Total Capacity 6,395 6,202 (3) ======================================================================================================================= I-20 Notes: (1) Represents megawatts of capacity under a concession agreement expiring in the year 2023. (2) Cogeneration facility. (3) Does not include Shajiao C (1,980 MW) or UK power plants (150 MW) that are partially owned but not operated by CEPA and SWEB, respectively.
Facilities Under Development ------------------------------------------------------------------------------------------------------------------------------- Megawatts of Capacity Percent Facility Location Units Own Operate Ownership Type ------------------------------------------------------------------------------------------------------------------------------- CEMIG Brazil 1 1 - 3.60 Hydro CEPA Philippines 2 1,121 1,218 92.00 Coal Edelnor Chile 1 206 250 82.34 Gas ------------------------------------------------------------------------------------------------------------------------------- Total Capacity 1,328 1,468 ===============================================================================================================================
Jointly-Owned Facilities ALABAMA and GEORGIA have sold and GEORGIA has purchased undivided interests in certain generating plants and other related facilities to or from non-affiliated parties. The percentages of ownership resulting from these transactions are as follows:
Total Percentage Ownership ----------- -------- ------------ -------- --------- --------- -------- Capacity ALABAMA AEC GEORGIA OPC MEAG DALTON FPC ------------- ----------- -------- ------------ -------- --------- --------- -------- (Megawatts) Plant Miller Units 1 and 2 1,320 91.8% 8.2% -% -% -% -% -% Plant Hatch 1,722 - - 50.1 30.0 17.7 2.2 - Plant Vogtle 2,320 - - 45.7 30.0 22.7 1.6 - Plant Scherer Units 1 and 2 1,636 - - 8.4 60.0 30.2 1.4 - Plant Wansley 1,779 - - 53.5 30.0 15.1 1.4 - Rocky Mountain 848 - - 25.4 74.6 - - - Intercession City, FL 142 - - 33.3 - - - 66.7 ----------------------------- ------------- ----------- -------- ------------ -------- --------- --------- --------
ALABAMA and GEORGIA have contracted to operate and maintain the respective units in which each has an interest (other than Rocky Mountain and Intercession City, as described below) as agent for the joint owners. In connection with the joint ownership arrangements for Plant Vogtle, GEORGIA made commitments to purchase portions of OPC's and MEAG's capacity and energy from this plant. Declining commitments were in effect during periods of up to seven years following commercial operation and ended in 1996. In addition, the Company has commitments regarding a portion of a 5 percent interest in Plant Vogtle owned by MEAG that are in effect until the later of retirement of the plant or the latest stated maturity date of MEAG's bonds issued to finance such ownership interest. The payments for capacity are required whether any capacity is available. The energy cost is a function of each unit's variable operating costs. Except for the portion of the capacity payments related to the 1987 and 1990 write-offs of Plant Vogtle costs, the cost of such capacity and energy is included in purchased power from non-affiliates in GEORGIA's Statements of Income in Item 8 herein. In December 1988, GEORGIA and OPC entered into a joint ownership agreement for the Rocky Mountain plant under which GEORGIA agreed to retain its present investment in the project and OPC agreed to finance, complete and operate the facility. In 1995, the plant went into commercial operation. GEORGIA's ownership I-21 is 25.4 percent. On January 14, 1998, the GPSC ordered that the Company be allowed approximately $108 million of its $142 million investment in the plant in rate base as of December 31, 1998. GEORGIA appealed the GPSC's order. Under the rate order approved by the GPSC on December 18, 1998, GEORGIA voluntarily dismissed the appeal. As a result, in December 1998, GEORGIA recorded a charge to earnings of $21 million, after taxes, associated with the write-down of the plant. Reference is made to Note 3 to SOUTHERN's and GEORGIA's financial statements in Item 8 herein for additional information regarding the Rocky Mountain plant. In 1994, GEORGIA and FPC entered into a joint ownership agreement regarding the Intercession City combustion turbine unit. The unit began commercial operation in January 1997, and is operated by FPC. GEORGIA owns a one-third interest in the unit, with use of 100% of the capacity from June through September. FPC has the capacity the remainder of the year. Titles to Property The operating affiliates' and SEGCO's interests in the principal plants (other than certain pollution control facilities, one small hydroelectric generating station leased by GEORGIA and the land on which five combustion turbine generators of MISSISSIPPI are located, which is held by easement) and other important units of the respective companies are owned in fee by such companies, subject only to the liens of applicable mortgage indentures (except for SEGCO) and to excepted encumbrances as defined therein. The operating affiliates own the fee interests in certain of their principal plants as tenants in common. (See Item 2 - PROPERTIES - "Jointly-Owned Facilities" herein.) Properties such as electric transmission and distribution lines and steam heating mains are constructed principally on rights-of-way which are maintained under franchise or are held by easement only. A substantial portion of lands submerged by reservoirs is held under flood right easements. In substantially all of its coal reserve lands, SEGCO owns or will own the coal only, with adequate rights for the mining and removal thereof. Property Additions and Retirements During the period from January 1, 1994 to December 31, 1998, the operating affiliates, SEGCO, SCS, Southern Nuclear, Southern LINC and Southern Energy recorded gross property additions and retirements as follows: ------------------------- ------------------- --- ---------- Gross Property Additions Retirements --------------- ------------- (in millions) ALABAMA $2,576 $ 426 GEORGIA (1) 2,522 1,263 GULF 327 131 MISSISSIPPI 357 98 SAVANNAH 122 13 SEGCO 27 8 SCS 108 171 Southern Nuclear 4 6 Southern LINC 300 48 Southern Energy 1,677 54 Other 10 - ============================ =========== == ================ SOUTHERN system $8,030 $2,218 ============================ =========== == ================ Notes: (1) Includes approximately $229 million attributable to sales of Plant Scherer Unit 4 to FP&L and JEA. I-22 Item 3. LEGAL PROCEEDINGS (1) Frost v. ALABAMA (Circuit Court of Jefferson County, Alabama) Reference is made to Note 3 to SOUTHERN's and ALABAMA's financial statements in Item 8 herein under the captions "Alabama Power Appliance Warranty Litigation" and "Appliance Warranty Litigation", respectively. (2) Sullivan v. ALABAMA et al. (Circuit Court of Jefferson County, Alabama) Reference is made to Note 3 to SOUTHERN's and ALABAMA's financial statements in Item 8 herein under the captions "Alabama Power Environmental Litigation" and "Environmental Litigation", respectively. (3) GEORGIA has been designated as a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act with respect to a site in Brunswick, Georgia. Reference is made to Note 3 to SOUTHERN's and GEORGIA's financial statements in Item 8 herein under the captions "Georgia Power Potentially Responsible Party Status" and "Certain Environmental Contingencies," respectively. (4) In re: Mobile Energy Services Company, LLC; In re: Mobile Energy Services Holdings, Inc. (U.S. Bankruptcy Court for the Southern District of Alabama). In January 1999, Mobile Energy, an indirect subsidiary of SOUTHERN, and its direct parent filed petitions for Chapter 11 bankruptcy relief in the U.S. Bankruptcy Court for the Southern District of Alabama. For additional information regarding this matter, reference is made to Note 3 to SOUTHERN's financial statements in Item 8 herein. In March 1999, SOUTHERN paid a total of approximately $36 million in respect of guaranty and reimbursement agreements previously entered into by it for the benefit of Mobile Energy creditors. See Item 1 - BUSINESS - "Construction Programs," "Fuel Supply," "Regulation - - - - - - - - Federal Power Act" and "Rate Matters" as well as Note 3 to each registrant's financial statements in Item 8 herein for a description of certain other administrative and legal proceedings discussed therein. Additionally, each of the operating affiliates, Southern Energy, SCS, Southern Nuclear, Energy Solutions and Southern LINC are, in the normal course of business, engaged in litigation or administrative proceedings that include, but are not limited to, acquisition of property, injuries and damages claims, and complaints by present and former employees. Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None. I-23 EXECUTIVE OFFICERS OF SOUTHERN (Identification of executive officers of SOUTHERN is inserted in Part I in accordance with Regulation S-K, Item 401(b), Instruction 3.) The ages of the officers set forth below are as of December 31, 1998. A. W. Dahlberg Chairman, President and Chief Executive Officer Age 58 Elected Director in 1985, President effective January 1994, and Chairman and Chief Executive Officer effective March 1995. Paul J. DeNicola Executive Vice President and Director Age 50 Elected Director in 1989 and Executive Vice President of SOUTHERN in 1991. He also has served as President and Chief Executive Officer of SCS since January 1994. H. Allen Franklin Executive Vice President and Director Age 54 Elected Director in 1988 and Executive Vice President in 1991. He also has served as President and Chief Executive Officer of GEORGIA since January 1994. Elmer B. Harris Executive Vice President and Director Age 59 Elected Director in 1989, and Executive Vice President in 1991. He also has served as President and Chief Executive Officer of ALABAMA since 1989. Thomas G. Boren Senior Vice President Age 49 Elected in 1995. He also has served as President and Chief Executive Officer of Southern Energy since 1992. Stephen A. Wakefield Senior Vice President and General Counsel Age 58 Elected in 1997. Previously, he was a partner at the law firm of Akin, Gump, Strauss, Hauer & Feld, LLP from July 1991 through August 1997. W. L. Westbrook Financial Vice President, Chief Financial Officer and Treasurer Age 59 Elected in 1986; responsible primarily for all aspects of financing for SOUTHERN. He also has served as Executive Vice President of SCS since 1986. C. Alan Martin Vice President Age 50 Elected in 1998; serves as Chief Marketing Officer for the SOUTHERN system. Previously Vice President of Human Resources of SOUTHERN from 1995 to February 1998, and Vice President of ALABAMA from 1987 to 1995. Charles D. McCrary Vice President Age 47 Elected in 1998; serves as Chief Production Officer for the SOUTHERN system. He also has served as Executive Vice President of GEORGIA since May 1998 and Executive Vice President of ALABAMA since 1994. Previously served as Senior Vice President of ALABAMA from 1991 to 1994. W. G. Hairston, III Age 53 President and Chief Executive Officer of Southern Nuclear since 1993. The officers of SOUTHERN were elected for a term running from the last annual meeting of the directors (May 27, 1998) for one year until the next annual meeting or until their successors are elected and have qualified. I-24 PART II Item 5. MARKET FOR REGISTRANTS' COMMON EQUITY AND RELATED STOCKHOLDER MATTERS (a) The common stock of SOUTHERN is listed and traded on the New York Stock Exchange. The stock is also traded on regional exchanges across the United States. High and low stock prices, per the New York Stock Exchange Composite Tape during each quarter for the past two years were as follows: ------------------------ ----------- --- -------------- High Low ----------- -------------- 1998 First Quarter $28-11/16 $23-15/16 Second Quarter 29 25-1/16 Third Quarter 29-13/16 25-1/4 Fourth Quarter 31-9/16 27-3/16 1997 First Quarter $23-3/8 $20-3/4 Second Quarter 22-1/4 19-7/8 Third Quarter 23 20-13/16 Fourth Quarter 26-1/4 22 -------------------- --------------- --- -------------- There is no market for the other registrants' common stock, all of which is owned by SOUTHERN. On February 28, 1999, the closing price of SOUTHERN's common stock was $25.0625. (b) Number of SOUTHERN's common stockholders at December 31, 1998: 187,053 Each of the other registrants have one common stockholder, SOUTHERN. (c) Dividends on each registrant's common stock are payable at the discretion of their respective board of directors. The dividends on common stock paid and/or declared by SOUTHERN and the operating affiliates to their stockholder(s) for the past two years were as follows: (in thousands) ------------------- --------- ------------- ---------- Registrant Quarter 1998 1997 ------------------- --------- ------------- ---------- SOUTHERN First $232,449 $220,194 Second 233,623 221,544 Third 233,763 222,980 Fourth 233,506 224,287 ALABAMA First 90,400 80,100 Second 90,500 85,600 Third 90,800 86,100 Fourth 95,400 87,800 GEORGIA First 132,100 122,700 Second 132,300 131,000 Third 132,700 131,800 Fourth 139,500 134,500 GULF First 14,100 12,900 Second 14,100 13,800 Third 14,100 13,800 Fourth 14,900 24,100 MISSISSIPPI First 12,700 11,300 Second 12,800 12,100 Third 12,800 12,200 Fourth 13,400 13,800 SAVANNAH First 5,800 5,100 Second 5,800 5,400 Third 5,800 5,500 Fourth 6,100 4,500 ------------------- --------- ------------- ---------- The dividend paid per share by SOUTHERN was 32.5(cent) for each quarter of 1997 and 33.5(cent) for each quarter of 1998. The dividend paid on SOUTHERN's common stock for the first quarter of 1999 was 33.5(cent) per share. II-1 The amount of dividends on their common stock that may be paid by the subsidiary registrants is restricted in accordance with their first mortgage bond indenture. The amounts of earnings retained in the business and the amounts restricted against the payment of cash dividends on common stock at December 31, 1998, were as follows: -------------------- ------------------ --- -------------- Retained Restricted Earnings Amount ------------------ -------------- (in millions) ALABAMA $1,225 $ 796 GEORGIA 1,780 897 GULF 171 127 MISSISSIPPI 174 118 SAVANNAH 113 68 Consolidated 3,878 2,003 -------------------- ------------------ --- -------------- Item 6. SELECTED FINANCIAL DATA SOUTHERN. Reference is made to information under the heading "Selected Consolidated Financial and Operating Data," contained herein at pages II-45 through II-48. ALABAMA. Reference is made to information under the heading "Selected Financial and Operating Data," contained herein at pages II-80 through II-83. GEORGIA. Reference is made to information under the heading "Selected Financial and Operating Data," contained herein at pages II-118 through II-121. GULF. Reference is made to information under the heading "Selected Financial and Operating Data," contained herein at pages II-151 through II-154. MISSISSIPPI. Reference is made to information under the heading "Selected Financial and Operating Data," contained herein at pages II-183 through II-186. SAVANNAH. Reference is made to information under the heading "Selected Financial and Operating Data," contained herein at pages II-211 through II-214. Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION SOUTHERN. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-8 through II-19. ALABAMA. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-52 through II-60. GEORGIA. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-87 through II-96. GULF. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-125 through II-133. MISSISSIPPI. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-158 through II-166. SAVANNAH. Reference is made to information under the heading "Management's Discussion and Analysis of Results of Operations and Financial Condition," contained herein at pages II-190 through II-197. Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Reference is made to information in SOUTHERN's "Management's Discussion and Analysis - Derivative Financial Instruments" and to Note 1 to SOUTHERN's financial statements under the headings "Financial Instruments for Non-Trading Activities" and "Financial Instruments for Trading Activities" contained herein on pages II-15 through II-16; and pages II-30 through II-32, respectively. II-2
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA INDEX TO 1998 FINANCIAL STATEMENTS Page The Southern Company and Subsidiary Companies: Report of Independent Public Accountants................................................................................ II-7 Consolidated Statements of Income for the Years Ended December 31, 1998, 1997 and 1996.................................. II-20 Consolidated Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996................................................................................ II-26 Consolidated Statements of Comprehensive Income for the Years Ended December 31, 1998, 1997 and 1996................................................................................ II-26 Consolidated Statements of Accumulated Other Comprehensive Income for the Years Ended December 31, 1998, 1997 and 1996................................................................................ II-26 Consolidated Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996.............................. II-21 Consolidated Balance Sheets at December 31, 1998 and 1997............................................................... II-22 Consolidated Statements of Capitalization at December 31, 1998 and 1997................................................. II-24 Consolidated Statements of Paid-In Capital for the Years Ended December 31, 1998, 1997 and 1996......................... II-26 Notes to Financial Statements........................................................................................... II-27 ALABAMA: Report of Independent Public Accountants .............................................................................. II-51 Statements of Income for the Years Ended December 31, 1998, 1997 and 1996............................................... II-61 Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996........................................... II-62 Balance Sheets at December 31, 1998 and 1997 ........................................................................... II-63 Statements of Capitalization at December 31, 1998 and 1997 ............................................................. II-65 Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996.................................... II-67 Statements of Paid-In Capital for the Years Ended December 31, 1998, 1997 and 1996...................................... II-67 Notes to Financial Statements........................................................................................... II-68 GEORGIA: Report of Independent Public Accountants................................................................................ II-86 Statements of Income for the Years Ended December 31, 1998, 1997 and 1996............................................... II-97 Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996........................................... II-98 Balance Sheets at December 31, 1998 and 1997 ........................................................................... II-99 Statements of Capitalization at December 31, 1998 and 1997 ............................................................. II-100 Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996.................................... II-103 Statements of Paid-In Capital for the Years Ended December 31, 1998, 1997 and 1996...................................... II-103 Notes to Financial Statements........................................................................................... II-104 GULF: Report of Independent Public Accountants................................................................................ II-124 Statements of Income for the Years Ended December 31, 1998, 1997 and 1996............................................... II-134 Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996........................................... II-135 Balance Sheets at December 31, 1998 and 1997 ........................................................................... II-136 Statements of Capitalization at December 31, 1998 and 1997 ............................................................. II-138 Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996.................................... II-140 Statements of Paid-In Capital for the Years Ended December 31, 1998, 1997 and 1996...................................... II-140 Notes to Financial Statements........................................................................................... II-141
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Page MISSISSIPPI: Report of Independent Public Accountants................................................................................ II-157 Statements of Income for the Years Ended December 31, 1998, 1997 and 1996............................................... II-167 Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996........................................... II-168 Balance Sheets at December 31, 1998 and 1997 ........................................................................... II-169 Statements of Capitalization at December 31, 1998 and 1997 ............................................................. II-171 Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996.................................... II-172 Statements of Paid-In Capital for the Years Ended December 31, 1998, 1997 and 1996...................................... II-172 Notes to Financial Statements........................................................................................... II-173 SAVANNAH: Report of Independent Public Accountants................................................................................ II-189 Statements of Income for the Years Ended December 31, 1998, 1997 and 1996............................................... II-198 Statements of Retained Earnings for the Years Ended December 31, 1998, 1997 and 1996.................................... II-198 Statements of Cash Flows for the Years Ended December 31, 1998, 1997 and 1996........................................... II-199 Balance Sheets at December 31, 1998 and 1997 ........................................................................... II-200 Statements of Capitalization at December 31, 1998 and 1997 ............................................................. II-202 Notes to Financial Statements........................................................................................... II-203 Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE None.
III-4 THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES FINANCIAL SECTION II-5 MANAGEMENT'S REPORT Southern Company and Subsidiary Companies 1998 Annual Report The management of Southern Company has prepared -- and is responsible for -- the consolidated financial statements and related information included in this report. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances and necessarily include amounts that are based on the best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that books and records reflect only authorized transactions of the company. Limitations exist in any system of internal controls, however, based on a recognition that the cost of the system should not exceed its benefits. The company believes its system of internal accounting controls maintains an appropriate cost/benefit relationship. The company's system of internal accounting controls is evaluated on an ongoing basis by the company's internal audit staff. The company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, composed of five directors who are not employees, provides a broad overview of management's financial reporting and control functions. Periodically, this committee meets with management, the internal auditors, and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal controls, and financial reporting matters. The internal auditors and independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the company's operations are conducted according to a high standard of business ethics. In management's opinion, the consolidated financial statements present fairly, in all material respects, the financial position, results of operations, and cash flows of Southern Company and its subsidiary companies in conformity with generally accepted accounting principles. /s/ A. W. Dahlberg A. W. Dahlberg Chairman, President, and Chief Executive Officer /s/ W. L. Westbrook W. L. Westbrook Financial Vice President, Chief Financial Officer, and Treasurer February 10, 1999 II-6 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Southern Company: We have audited the accompanying consolidated balance sheets and consolidated statements of capitalization of Southern Company (a Delaware corporation) and subsidiary companies as of December 31, 1998 and 1997, and the related consolidated statements of income, comprehensive income, retained earnings, paid-in capital, accumulated other comprehensive income, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements (pages II-20 through II-44) referred to above present fairly, in all material respects, the financial position of Southern Company and subsidiary companies as of December 31, 1998 and 1997, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia February 10, 1999 II-7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Southern Company and Subsidiary Companies 1998 Annual Report RESULTS OF OPERATIONS Earnings and Dividends Southern Company's 1998 earnings of $1.2 billion -- excluding non-recurring items -- established a new record high. Earnings were driven by higher energy sales and from growth in the non-traditional business. However, reported earnings in both 1998 and 1997 reflected significant charges. Reported earnings for 1998 were $977 million or $1.40 per share compared with $972 million or $1.42 per share in 1997. The traditional core business of selling electricity in the southeastern United States remained strong, while the non-traditional business results were adversely affected by a $200 million, after tax, write down of assets in South America in 1998 and by a $111 million windfall profits tax assessed in the United Kingdom in 1997. Southern Company's subsidiary that owns and manages its international and domestic non-traditional electric power production and delivery facilities is Southern Energy, Inc. (Southern Energy). After excluding these non-recurring charges, Southern Energy accounted for approximately 20 percent and 10 percent of Southern Company's reported net income in 1998 and 1997, respectively. A reconciliation of reported earnings to earnings excluding non-recurring items and explanations are as follows: Consolidated Earnings Net Income Per Share --------------- ---------------- 1998 1997 1998 1997 ---------------- ---------------- (in millions) Earnings as reported $ 977 $ 972 $1.40 $1.42 - - - - - - - --------------------------------------------------------------- Write down of assets: South American investments 200 - .29 - Rocky Mountain plant 21 - .03 - Windfall profits tax - 111 - .16 Work force reduction programs 20 31 .03 .05 Other 7 16 .01 .02 - - - - - - - --------------------------------------------------------------- Total non-recurring 248 158 .36 .23 - - - - - - - --------------------------------------------------------------- Earnings excluding non-recurring items $1,225 $1,130 $1.76 $1.65 =============================================================== Amount and percent change $95 8.4% $0.11 6.7% - - - - - - - --------------------------------------------------------------- Southern Energy's 1998 write down is related to its investments in Argentina and Chile not meeting financial expectations, which resulted in an announced plan to sell these assets. In 1997, Southern Energy -- as well as other utilities in the United Kingdom -- was assessed a one-time tax on profits. In 1998, Georgia Power resolved a long-term issue related to its investment in the Rocky Mountain pumped storage hydroelectric plant. The write down resulted from a settlement of Georgia Power's 1998 retail rate proceeding. Also, work force reduction programs in the traditional core business were implemented in 1998 and 1997. These costs are expected to be recovered through future savings within approximately two years following each program's implementation. Dividends paid on common stock during 1998 were $1.34 per share or 33 1/2 cents per quarter. During 1997 and 1996, dividends paid per share were $1.30 and $1.26, respectively. In January 1999, Southern Company maintained the quarterly dividend at 33 1/2 cents per quarter or $1.34 annually. Southern Company has modified its dividend policy from a targeted 75 percent payout ratio to a lower ratio over time. This policy supports Southern Company's strategic goal to become the best investment in the electric utility industry. Revenues Operating revenues changed in 1998 and 1997 as a result of the following factors: Increase (Decrease) From Prior Year - - - - - - - --------------------------------------------------------------- 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Retail -- Growth and price change $ 258 $ 105 $ 124 Weather 178 (110) (64) Fuel cost recovery and other 189 (13) 2 - - - - - - - --------------------------------------------------------------- Total retail 625 (18) 62 - - - - - - - --------------------------------------------------------------- Sales for resale -- Within service area (2) (33) 10 Outside service area 12 81 14 - - - - - - - --------------------------------------------------------------- Total sales for resale 10 48 24 Southern Energy (1,934) 2,154 1,040 Other operating revenues 91 69 52 - - - - - - - --------------------------------------------------------------- Total operating revenues $(1,208) $2,253 $1,178 =============================================================== Percent change (9.6)% 21.8% 12.8% - - - - - - - --------------------------------------------------------------- Retail revenues of $8.3 billion increased sharply, up 8.2 percent compared with last year. Continued growth in the traditional service area and the II-8 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report positive impact of weather on energy sales were the predominant factors causing the rise in revenues. In 1997, retail revenues decreased by 0.2 percent compared with the year 1996. Under fuel cost recovery provisions, fuel revenues generally equal fuel expenses -- including the fuel component of purchased energy -- and do not affect net income. Sales for resale revenues within the service area were $374 million in 1998, down 0.7 percent from the prior year. Revenues from sales for resale within the service area were $376 million in 1997, down 8.1 percent from the prior year. This sharp decline resulted primarily from supplying less electricity under contractual agreements with certain wholesale customers in 1997. Revenues from sales to utilities outside the service area under long-term contracts consist of capacity and energy components. Capacity revenues reflect the recovery of fixed costs and a return on investment under the contracts. Energy is generally sold at variable cost. The capacity and energy components were as follows: 1998 1997 1996 - - - - - - - ---------------------------------------------------------------- (in millions) Capacity $196 $203 $217 Energy 152 183 176 - - - - - - - ---------------------------------------------------------------- Total $348 $386 $393 ================================================================ Capacity revenues in 1998 slightly declined as a result of adjustments and true-ups related to contractual pricing. In 1997, capacity revenues decreased because the amount of capacity under contract declined during 1996. Additional declines in capacity are not scheduled until after 1999. In 1998, Southern Energy's revenues declined because its energy trading and marketing operations were deconsolidated on January 1, 1998, when Southern Energy's joint venture with Vastar Resources, Inc. (Vastar) became effective. Because of Vastar's significant participation rights in the joint venture, the equity method of accounting is required. This results in Southern Energy's share of the joint venture's earnings being reported in other income in 1998. In 1997, Southern Energy reported energy trading and marketing revenues of $2.0 billion. Southern Energy's revenues in 1998 of $1.9 billion increased $48 million compared with comparable revenues in 1997 that exclude energy trading and marketing. This increase results primarily from operations of assets obtained in domestic acquisitions. In 1997, Southern Energy's revenues rose to $3.8 billion. This increase was primarily attributable to the development and growth of energy trading and marketing activities. In 1997, energy trading and marketing revenues increased $1.9 billion compared with amounts recorded in 1996. However, these revenues were substantially offset by purchased power expenses incurred in completing these trading and marketing transactions. Energy trading and marketing -- similar to other low-margin sales activities -- is dependent on huge volumes for profitability. Energy Sales Changes in traditional core business revenues are influenced heavily by the amount of energy sold each year. Kilowatt-hour sales for 1998 and the percent change by year were as follows: Amount Percent Change (billions of --------- ------------------------------ kilowatt-hours) 1998 1998 1997 1996 - - - - - - - ------------------------------- ------------------------------- Residential 43.5 10.9% (2.2)% 2.5% Commercial 41.7 7.2 2.5 5.7 Industrial 55.3 2.1 2.6 2.2 Other 1.0 3.1 (1.1) 5.7 ----- Total retail 141.5 6.2 1.1 3.3 Sales for resale -- Within service area 9.8 (0.4) (9.6) 15.4 Outside service area 13.0 (5.6) 27.7 17.9 ----- Total 164.3 4.7 2.2 5.0 ================================================================= The rate of growth in 1998 retail energy sales was the highest one-year increase since 1986. Residential energy sales registered the highest annual increase in over two decades as a result of hotter-than-normal weather and the addition of 57,000 new customers. Commercial sales were also affected by the warm weather. Commercial and industrial sales, both in 1998 and 1997, continued to show slight gains in excess of the national averages. This reflects the strength of business and economic conditions in Southern Company's traditional service area. Energy sales to retail customers are projected to increase at an average annual rate of 2.1 percent during the period 1999 through 2009. Energy sales for resale outside the service area are predominantly unit power sales under long-term contracts to Florida utilities. Economy sales and amounts sold under short-term contracts are also sold for resale outside the service area. Sales to customers outside the service area declined by 5.6 percent in 1998 and increased by 27.7 percent in 1997 when compared with the respective II-9 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report prior year. The wide variances in sales were influenced by fluctuations in prices for oil and natural gas, the primary fuel sources for utilities with which the company has long-term contracts. When oil and gas prices fall below a certain level, these customers can generate electricity to meet their requirements more economically. However, these fluctuations in energy sales under long-term contracts have minimal effects on earnings because Southern Company is paid for dedicating specific amounts of its generating capacity to these utilities outside the service area. Expenses Total operating expenses of $9.4 billion -- before write downs -- for 1998 decreased $1.2 billion compared with the prior year. Traditional core business expenses increased $679 million. Southern Energy's expenses decreased $2.0 billion. The decline for Southern Energy corresponds to the decrease in revenues resulting primarily from the deconsolidation of the energy trading and marketing operations as discussed earlier. Approximately $2.0 billion of these expenses were recorded in 1997 purchased power expenses. The costs to produce and deliver electricity for the traditional core business in 1998 increased by $359 million to meet higher energy demands. Non-production operation and maintenance expenses increased $192 million in 1998. Traditional core business depreciation expenses and taxes other than income taxes increased by $142 million as a result of additional utility plant being placed into service and increased accelerated depreciation of certain assets. In 1997, operating expenses of $10.7 billion increased $2.2 billion compared with 1996. Traditional core business expenses increased $69 million. Southern Energy's expenses increased $2.1 billion. The large increase for Southern Energy resulted primarily from two factors. First, the acquisition of CEPA was first reflected in 1997 expenses. Second, $2.0 billion of energy trading and marketing expenses were included in purchased power expenses. The costs to produce and deliver electricity for the traditional core business in 1997 increased by $37 million to meet higher energy demands. Also, costs related to work force reduction programs decreased in 1997 by $35 million. Traditional core business depreciation expenses and taxes other than income taxes increased by $136 million as a result of additional utility plant being placed into service and increased accelerated depreciation of certain assets. Fuel costs constitute the single largest expense for Southern Company's traditional core business. The mix of fuel sources for generation of electricity is determined primarily by system load, the unit cost of fuel consumed, and the availability of hydro and nuclear generating units. The amount and sources of generation and the average cost of fuel per net kilowatt-hour generated -- within the core business service area -- were as follows: 1998 1997 1996 - - - - - - - ----------------------------------------------------------------- Total generation (billions of kilowatt-hours) 164 160 156 Sources of generation (percent) -- Coal 77 77 77 Nuclear 16 17 17 Hydro 4 4 4 Oil and gas 3 2 2 Average cost of fuel per net kilowatt-hour generated (cents) -- 1.48 1.46 1.48 - - - - - - - ----------------------------------------------------------------- Total fuel and purchased power costs of $3.6 billion in 1998 decreased $1.7 billion compared with 1997. The traditional core business increased $299 million and Southern Energy decreased $2.0 billion. Southern Energy's reduction in fuel and purchased power costs resulted from $2.0 billion associated with energy trading and marketing expenses recorded in 1997 and from no energy trading costs recorded in purchased power in 1998 as a result of the joint venture with Vastar discussed earlier. The traditional core business's total energy sales rose by 7.4 billion kilowatt-hours more than in 1997. Fuel and purchased power expenses of $5.3 billion in 1997 increased $2.0 billion compared with the prior year. These expenses for traditional core business increased $32 million, and Southern Energy's portion increased $1.9 billion. Southern Energy's increase in expenses escalated as a result of energy trading and marketing activities discussed earlier. The traditional core business's total energy sales went up by 3.4 billion kilowatt-hours more than in 1996. The additional cost to meet the demand was offset slightly by a lower average cost of fuel per net kilowatt-hour generated. Total interest charges and other financing costs increased $91 million from amounts reported in the previous year. These costs for the traditional core business increased $48 million compared with the reported amounts in 1997. Southern Energy's costs increased $47 million related primarily to financing of acquisitions. In 1997, these same costs for traditional core business were flat, but Southern Energy's interest charges increased $205 million as a result of acquisitions. II-10 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report Effects of Inflation Southern Company's traditional core business is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the company is recovering its costs of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on Southern Company because of the large investment in utility plant with long economic life. Conventional accounting for historical cost does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations such as long-term debt and preferred securities. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings potential. The level of Southern Company's future earnings depends on numerous factors. Two major factors are: achieving energy sales growth in a less regulated, more competitive environment; and operating non-traditional business activities successfully. Southern Company continues to position its business to meet the challenges of a new competitive environment. Work force reduction programs have reduced earnings by $20 million, $31 million, and $53 million for the years 1998, 1997, and 1996, respectively. These actions -- in conjunction with other cost containment programs -- will assist efforts to continue being a low-cost provider of electricity. The operating companies currently operate as vertically integrated companies providing electricity to customers within the traditional service area of the southeastern United States. Prices for electricity provided by the operating companies to retail customers are set by state public service commissions under cost-based regulatory principles. Rates for Alabama Power and Mississippi Power are adjusted periodically within certain limitations based on earned retail rate of return compared with an allowed return. In December 1998, Georgia Power received a new three-year retail rate order. As a result of the rate order, Georgia Power recorded in 1998 a write down of $34 million -- $21 million after taxes -- related to its investment in the Rocky Mountain pumped storage hydroelectric plant. This long-standing issue is now resolved. See Note 3 to the financial statements for additional information about these matters and other retail and wholesale regulatory matters. Future earnings for the operating companies in the near term will depend upon growth in energy sales, which is subject to a number of factors. These factors include weather, competition, changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, and the rate of economic growth in the company's service area. The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Energy Act allows independent power producers (IPPs) to access a utility's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for a utility's large industrial and commercial customers and sell energy generation to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. Southern Company is aggressively working to maintain and expand its share of wholesale sales in the Southeastern power markets. Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While various restructuring and competition initiatives have been or are being discussed in Alabama, Florida, Georgia, and Mississippi, none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. The inability of an operating company to recover its investments, including the regulatory assets described in Note 1 to the financial statements, could have a material adverse effect on the financial condition of that operating company. The operating companies are attempting to minimize or reduce their cost exposure. See Note 3 to the financial statements for information regarding these efforts. II-11 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report Continuing to be a low-cost producer could provide opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless Southern Company remains a low-cost producer and provides quality service, the company's retail energy sales growth could be limited, and this could significantly erode earnings. To adapt to a less regulated, more competitive environment, Southern Company continues to evaluate and consider a wide array of potential business strategies. These strategies may include business combinations, acquisitions involving other utility or non-utility businesses or properties, internal restructuring, disposition of certain assets, or some combination thereof. Furthermore, Southern Company may engage in other new business ventures that arise from competitive and regulatory changes in the utility industry. Pursuit of any of the above strategies, or any combination thereof, may significantly affect the business operations and financial condition of Southern Company. The Energy Act amended the Public Utility Holding Company Act of 1935 (PUHCA) to allow holding companies to form exempt wholesale generators and foreign utility companies to sell power largely free of regulation under PUHCA. These entities are able to sell power to affiliates -- under certain restrictions -- and to own and operate power generating facilities in other domestic and international markets. To take advantage of existing and evolving opportunities, Southern Energy -- founded in 1981 -- is focused on several key international and domestic business lines, including energy distribution, integrated utilities, stand-alone generation, and other energy-related products and services. As the energy marketplace evolves, Southern Energy continues to position the company to become a major competitor. At December 31, 1998, Southern Energy's total assets amounted to $12 billion. During 1998, Southern Energy further refined its business strategy to focus on a few geographic regions of the world. In Asia, Southern Energy will focus primarily on China, the Philippines, and India. In South America, the company will pursue opportunities in Brazil. In Europe, Southern Energy will concentrate efforts on the European Union countries. And in North America, the company will target efforts in the Northeast, the Midwest, Texas, and California. Southern Energy announced in 1998 plans to acquire, build, or gain access to some 20,000 megawatts of generating capacity in North America over the next several years in order to be competitive in the country's evolving competitive energy supply business. These assets will be closely linked with Southern Energy's energy trading and marketing business. In January 1998, Southern Energy entered into a joint venture with Vastar. The two companies combined their energy trading and marketing operations to form a new full-service energy provider, Southern Company Energy Marketing. The joint venture agreement gives Southern Company Energy Marketing rights to market virtually all of Vastar's natural gas production over the next 10 years. In December 1998, Southern Energy completed its $537 million purchase of 1,267 megawatts of generating capacity from Commonwealth Electric. In addition, Southern Energy plans to add 685 megawatts of capacity at the plants. In late 1998, Southern Energy announced the $801 million planned acquisition of 3,065 megawatts of generating capacity from Pacific Gas & Electric in northern California. Additionally, the company announced plans to acquire from Orange and Rockland Utilities Inc. and Consolidated Edison Inc. in New York 1,776 megawatts of capacity for $480 million. These transactions are expected to close during 1999. Additionally, Southern Energy has announced plans to build or purchase an additional 680 megawatts of capacity in Texas and Wisconsin. Through Southern Company Energy Marketing, the company has also gained access to additional capacity through marketing agreements. The company has access to almost 2,000 megawatts of capacity through marketing agreements with Sithe Energies in New York and Brazos Electric Cooperative in Texas. After refining its international focus and reviewing the financial performance of existing assets, Southern Energy announced plans to sell its holdings in EDELNOR in Chile and Alicura in Argentina. As a result, Southern Energy recorded a write down of $200 million, after tax, in December 1998 related to these holdings. Because of regulatory and market conditions, these assets did not meet earnings expectations. Southern Company has filed with the Securities and Exchange Commission (SEC) a request to invest up to nearly $8 billion in the non-traditional domestic and international business. The current SEC authority is $3.9 billion, of which $3.6 billion has been invested as of December 31, 1998. Southern Company is involved in various matters being litigated. See Note 3 to the financial statements for information regarding material issues that could possibly affect future earnings. II-12 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report Compliance costs related to current and future environmental laws and regulations could affect earnings if such costs are not fully recovered. The Clean Air Act and other important environmental items are discussed later under "Environmental Matters." The staff of the SEC has questioned certain of the current accounting practices of the electric utility industry --including Southern Company's -- regarding the recognition, measurement, and classification in the financial statements of decommissioning costs for nuclear generating facilities. In response to these questions, the Financial Accounting Standards Board (FASB) has decided to review the accounting for liabilities related to the retirement of long-lived assets, including nuclear decommissioning. If the FASB issues new accounting rules, the estimated costs of retiring Southern Company's nuclear and other facilities may be required to be recorded as liabilities in the Consolidated Balance Sheets. Also, the annual provisions for such costs could change. Because of the company's current ability to recover asset retirement costs through rates, these changes would not have a significant adverse effect on results of operations. See Note 1 to the financial statements under "Depreciation and Nuclear Decommissioning" for additional information. The operating companies are subject to the provisions of FASB Statement No. 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of a company's operations is no longer subject to these provisions, the company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. New Accounting Standards The FASB has issued Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments -- including certain derivative instruments embedded in other contracts -- and for hedging activities. Southern Company has not yet quantified the impact of adopting this statement on its financial statements; however, the adoption could increase volatility in earnings and other comprehensive income. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. Southern Company adopted this statement in January 1999, and it is not expected to have a material impact on the consolidated financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Cost of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. Southern Company adopted this statement in January 1999, and it is not expected to have a material impact on the consolidated financial statements. In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, with gains and losses reflected rather than revenues and purchased power. Energy trading contracts are defined as energy contracts entered into with the objective of generating profits on or from exposure to shifts or changes in market prices. Southern Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the consolidated financial statements. Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard-coded into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space, was used until the mid-1990s. Unless corrected before the Year 2000, affected software systems and devices containing a chip or microprocessor with date and time functions could incorrectly process dates or the systems may cease to function. Southern Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. Southern Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year II-13 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report 2000 and beyond. Critical systems include, but are not limited to, reactor control systems, safe shutdown systems, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status Southern Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated what it believes to be adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. Southern Company's traditional business refers to the integrated utility services within Alabama, Florida, Georgia, and Mississippi. For this traditional business, the work was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in this phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices, and applications into the Year 2000. For the traditional business, Southern Company has completed more than 70 percent of the activities contained in its work plan. The percentage of completion and projected completion by function are as follows: Work Plan - - - - - - - ---------------------------------------------------------------------- Remediation Project Inventory Assessment Testing Completion - - - - - - - ---------------------------------------------------------------------- Generation 100% 100% 70% 6/99 Energy Management 100 100 90 6/99 Transmission and Distribution 100 100 100 1/99 Telecommunications 100 100 50 6/99 Corporate Applications 100 100 90 3/99 - - - - - - - ---------------------------------------------------------------------- For the non-traditional business located in the United States and several countries throughout the world, Year 2000 readiness is generally scheduled to follow the traditional business. In a number of the business units outside the United States, Southern Company is neither the majority owner nor the managing concern. In these circumstances, Southern Company is providing technical assistance but does not control the schedule or progress. Year 2000 Costs For the traditional business, current projected total costs for Year 2000 readiness are approximately $91 million, which includes $6 million of cost billed to non-affiliated companies. These costs include labor necessary to identify, test, and renovate affected devices and systems. From its inception through December 31, 1998, the Year 2000 program costs, recognized primarily as expense, amounted to $56 million based on Southern Company's ownership interest. In addition to the traditional business costs, current projections for Year 2000 program costs are approximately $24 million for the non-traditional business -- based on Southern Company's ownership interest -- of which $9 million has been spent through December 31, 1998 Year 2000 Risks Southern Company is implementing a detailed process to minimize the possibility of service interruptions related to the Year 2000. The company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operations. The company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruptions in service that may occur within the traditional business service territory to be isolated and short in duration. Southern Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the service loss of any single bulk transmission element in its traditional business service territory. The company has followed a proven methodology for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, Southern Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council-coordinated national drills during 1999. Southern Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to Southern Company's operations. Among such critical third parties are fuel, transportation, telecommunications, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to Southern Company are being developed. II-14 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their own Year 2000 issues. The risk associated with the progress of some operations outside the United States is a function of the local regulatory environment and the priorities of the entities with management control. Year 2000 issues are included in the list of due diligence activities associated with acquisitions; there is some risk associated with the subsequent validation of any given seller's representations. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the traditional business is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, Southern Company is drawing on that experience to make risk assessments and is developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. Southern Company is identifying critical operational locations, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the traditional business service territory isolated and short in duration. Contingency planning efforts for the non-traditional business are generally in the initial phase. FINANCIAL CONDITION Overview Southern Company's financial condition continues to remain strong. The company's common stock closed 1998 with the highest year-end closing price in history. Consolidated net income of $1.2 billion -- excluding non-recurring charges -- in 1998 increased $95 million compared with the prior year. In January 1999, Southern Company modified its dividend policy to lower, over time, the previously targeted payout ratio of approximately 75 percent. The quarterly dividend declared was maintained at 33 1/2 cents per share or $1.34 annually. This action allows more internally generated funds to be reinvested in the company, which is expected to increase long-term shareholder value. Gross property additions to utility plant were $2.0 billion in 1998. The majority of funds needed for gross property additions since 1995 has been provided from operating activities. Southern Energy acquired $670 million of generating assets in 1998 and sold an additional 26 percent interest in its United Kingdom subsidiary for $170 million. The Consolidated Statements of Cash Flows provide additional details. Derivative Financial Instruments Southern Company is exposed to market risks, including changes in interest rates, currency exchange rates, and certain commodity prices. To manage the volatility attributable to these exposures, the company nets the exposures to take advantage of natural offsets and enters into various derivative transactions for the remaining exposures pursuant to the company's policies in areas such as counterparty exposure and hedging practices. Generally, company policy is that derivatives are to be used only for hedging purposes. Derivative positions are monitored using techniques that include market value and sensitivity analysis. The company's market risk exposures relative to interest rate changes and currency exchange fluctuations, as discussed later, have not changed materially versus the previous reporting period. In addition, the company is not aware of any facts or circumstances that would significantly impact such exposures in the near-term. Interest rate swaps are used to hedge underlying debt obligations. These swaps hedge specific debt issuances and qualify for hedge accounting. The interest rate differential is reflected as an adjustment to interest expense over the life of the instruments. Additionally, the company has interest rate swaps in foreign currencies. These swaps are designated as hedges of the company's related debt issuance in the same currency. If the company sustained a 100 basis point change in interest rates for all variable rate debt in all currencies, the change would affect annualized interest expense by approximately $35 million at December 31, 1998. Based on the company's overall interest rate exposure at December 31, 1998, including derivative and other interest rate sensitive instruments, a near-term 100 basis point change in interest rates would not materially affect the consolidated financial statements. The company has investments in the United Kingdom and Germany. For these investments, the company uses long-term cross-currency agreements to reduce a substantial portion of its exposure to fluctuations in the British pound sterling and German Deutschemark. These instruments are used to hedge the net investments in these countries. As a result of these swaps, a 10 percent 11-15 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report sustained decline of the British pound sterling and German Deutschemark versus the U.S. dollar would not materially affect the consolidated financial statements. The company also has investments in various emerging market countries where the net investments are not hedged, including Argentina, Brazil, Chile, Trinidad, Bahamas, Philippines, and China. The company relies on either currency pegs or contractual or regulatory links to the U.S. dollar to mitigate currency risk attributable to these investments. The company does not believe it has a material exposure to changes in exchange rates between the U.S. dollar and the currencies of these countries. Based on availability and economics, the company also uses currency swaps and forward agreements to hedge dollar-denominated debt issued by subsidiaries with a functional currency other than the U.S. dollar. These swaps offset the dollar cash flows, thereby effectively converting debt to the respective company's reporting currency. Gains and losses related to qualified hedges of foreign currency firm commitments are deferred and included in the basis of the underlying transactions. To the extent that a qualifying hedge is terminated or ceases to be effective as a hedge, any deferred gains and losses to that point continue to be deferred and are included in the basis of the underlying transaction. In addition to the non-trading activities, the company is exposed to market risks through its electricity and natural gas commodity trading business, which is primarily conducted through the company's joint venture relationship with Vastar. While this joint venture relationship is accounted for under the equity method of accounting, Southern Company -- through guarantees it has made jointly with Vastar -- is exposed to market risk. Southern Company and Vastar have agreed to indemnify each other against losses under such guarantees in proportion to their respective ownership shares of the joint venture. At December 31, 1998, outstanding guarantees related to the estimated fair value of net contractual commitments were approximately $152 million. Based upon the joint venture's statistical analysis of its credit risk, Southern Company's potential exposure under these contractual commitments would not materially differ from the estimated fair value. The joint venture's gross revenues and cost of sales for 1998 were $9.2 billion and $9.1 billion, respectively. To estimate and manage the market risk of its trading and marketing portfolio, the joint venture employs a daily Value at Risk (VAR) methodology. VAR is used to describe a probabilistic approach to measuring the exposure to market risk. VAR models are relatively sophisticated. However, the quantitative risk information is limited by the parameters established in creating the model. The instruments being evaluated may have features that may trigger a potential loss in excess of calculated amounts if the changes in commodity prices exceed the confidence level of the model used. The calculation utilizes the standard deviation of seasonally adjusted historical changes in the value of the market risk sensitive commodity-based financial instruments to estimate the amount of change (i.e., volatility) in the current value of these instruments that could occur at a specified confidence level over a specified holding interval. The parameters used in the calculation include holding intervals ranging from five to 20 days, depending upon the type of instrument, the term of the instrument, the liquidity of the underlying market, and other factors. The models employ a 95 percent confidence level based on historical price movement. Based on the joint venture's VAR analysis of its overall commodity price risk exposure at December 31, 1998, management does not anticipate a materially adverse effect on the company's consolidated financial statements as a result of market fluctuations. In the United Kingdom, the company utilizes contracts to mitigate its exposure to volatility in the prices of electricity purchased through the wholesale electricity market. These contracts allow the company to effectively convert the majority of its anticipated wholesale electricity purchases from market prices to fixed prices. The gains and losses on these contracts are deferred and recognized as electricity is purchased. Recently, a market has developed for trading these contracts in the United Kingdom. However, due to the immaturity of this market and the complexity of the company's existing contracts, it is not practicable to estimate the fair value of these contracts. Due to cost-based rate regulations, the operating companies have limited exposure to market volatility in interest rates, commodity fuel prices, and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the operating companies enter into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statement as incurred. At December 31, 1998, exposure from these activities was not material to the consolidated financial statements. For additional information, see Note 1 to the financial statements under "Financial Instruments for Non-Trading and Trading Activities." II-16 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report Capital Structure Southern Company achieved a ratio of common equity to total capitalization -- including short-term debt -- of 37.4 percent in 1998, compared with 38.6 percent in 1997, and 45.1 percent in 1996. During 1998, the subsidiary companies sold, through public authorities, $210 million of pollution control revenue bonds. In addition, preferred stock of $200 million and capital and preferred securities of $435 million were issued in 1998. The companies continued to reduce financing costs by retiring higher-cost bonds and preferred stock. Retirements, including maturities, of bonds totaled $1.7 billion during 1998, $507 million during 1997, and $600 million during 1996. As a result, the composite interest rate on long-term debt decreased from 7.1 percent at December 31, 1995 to 6.42 percent at December 31, 1998. Retirements of preferred stock totaled $239 million during 1998, $660 million during 1997, and $179 million during 1996. In 1998, Southern Company raised net proceeds of $109 million from the issuance of common stock under the company's various stock plans. At the close of 1998, the company's common stock had a market value of 29 1/16 per share, compared with a book value of $14.04 per share. The market-to-book value ratio was 207 percent at the end of 1998, compared with 186 percent at year-end 1997, and 166 percent at year-end 1996. Capital Requirements for Construction The construction program of Southern Company is budgeted at $2.6 billion for 1999, $2.1 billion for 2000, and $2.1 billion for 2001. Actual construction costs may vary from this estimate because of changes in such factors as: business conditions; environmental regulations; nuclear plant regulations; load projections; the cost and efficiency of construction labor, equipment, and materials; and the cost of capital. In addition, there can be no assurance that costs related to capital expenditures will be fully recovered. The operating companies have approximately 2,700 megawatts of combined cycle generation scheduled to be placed in service by 2001. Southern Energy has under construction some 1,300 megawatts of owned capacity. Significant construction of transmission and distribution facilities and upgrading of generating plants will be continuing for the core business in the Southeast. Other Capital Requirements In addition to the funds needed for the construction program, approximately $2.6 billion will be required by the end of 2001 for present improvement fund requirements and maturities of long-term debt. Also, the subsidiaries will continue to retire higher-cost debt and preferred stock and replace these obligations with lower-cost capital if market conditions permit. In late 1998, Southern Energy announced plans to acquire $801 million and $480 million of generating assets in California and New York, respectively. These transactions are expected to close in 1999. Environmental Matters In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act -- the acid rain compliance provision of the law -- significantly affected Southern Company. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating units of Southern Company. As a result of the company's compliance strategy, an additional 22 generating units were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected plants by switching to low-sulfur coal, which required some equipment upgrades. Construction expenditures for Phase I compliance totaled approximately $300 million. For Phase II sulfur dioxide compliance, Southern Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Also, equipment to control nitrogen oxide emissions will be installed on additional system fossil-fired units as necessary to meet Phase II limits and ozone non-attainment requirements for metropolitan Atlanta through 2000. Current compliance strategy for Phase II and ozone non-attainment could require total estimated construction expenditures of approximately $70 million, of which $16 million remains to be spent. A significant portion of costs related to the acid rain provision of the Clean Air Act is expected to be recovered through existing ratemaking provisions. However, there can be no assurance that all Clean Air Act costs will be recovered. 11-17 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the new rules. The final rules affect 22 states including Alabama and Georgia. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various other matters including: nitrogen oxide emission control strategies for ozone non-attainment areas; additional controls for hazardous air pollutant emissions; control strategies to reduce regional haze; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. Southern Company must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the subsidiaries could incur substantial costs to clean up properties. The subsidiaries conduct studies to determine the extent of any required cleanup costs and have recognized in their respective financial statements costs to clean up known sites. These costs for Southern Company amounted to $6 million in 1998 and $4 million in 1997. In 1996, the company was reimbursed $6 million for amounts previously expensed. Additional sites may require environmental remediation for which the subsidiaries may be liable for a portion or all required cleanup costs. See Note 3 to the financial statements for information regarding Georgia Power's potentially responsible party status at a site in Brunswick, Georgia. Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; and the Endangered Species Act. Changes to these laws could affect many areas of Southern Company's operations. The full impact of any such changes cannot be determined at this time. Compliance with possible additional legislation related to global climate change, electromagnetic fields, and other environmental and health concerns could significantly affect Southern Company. The impact of new legislation -- if any -- will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for liability as the result of lawsuits alleging damages caused by electromagnetic fields. Sources of Capital The amount and timing of additional equity capital to be raised in 1999 -- as well as in subsequent years -- will be contingent on Southern Company's investment opportunities. Equity capital can be provided from any combination of public offerings, private placements, or the company's stock plans. Any portion of the common stock required during 1999 for the company's stock plans that is not provided from the issuance of new stock will be acquired on the open market in accordance with the terms of such plans. The operating companies plan to obtain the funds required for construction and other purposes from sources similar to those used in the past, which were primarily from internal sources. However, the type and timing of any financings - - - - - - - -- if needed -- will depend on market conditions and regulatory approval. The operating companies historically have relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for their benefit by public authorities, to meet their long-term external financing requirements. Recently, the operating companies' financings have consisted of unsecured debt and trust preferred securities. In this regard, the operating companies sought and obtained stockholder approval in 1997 or 1998 to amend their respective corporate charters eliminating restrictions on the amounts of unsecured indebtedness they may incur. To meet short-term cash needs and contingencies, Southern Company had approximately $872 million of cash and cash equivalents and $4.6 billion of unused credit arrangements with banks at the beginning of 1999. Cautionary Statement Regarding Forward-Looking Information Southern Company's 1998 Annual Report contains forward-looking and historical information. The company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such II-18 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Southern Company and Subsidiary Companies 1998 Annual Report indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the markets of the subsidiary companies; potential business strategies - - - - - - - --including acquisitions or dispositions of assets or internal restructuring -- that may be pursued by the company; state and federal rate regulation in the United States; Year 2000 issues; changes in or application of environmental and other laws and regulations to which the company and its subsidiaries are subject; political, legal and economic conditions and developments in the United States and in foreign countries in which the subsidiaries operate; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; the performance of projects undertaken by the non-traditional business and the success of efforts to invest in and develop new opportunities; and other factors discussed in the reports -- including Form 10-K -- filed from time to time by the company with the SEC. II-19 CONSOLIDATED STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Southern Company and Subsidiary Companies 1998 Annual Report
1998 1997 1996 ============================================================================================================================ (in millions) Operating Revenues $11,403 $12,611 $10,358 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation -- Fuel 2,371 2,281 2,245 Purchased power 1,243 3,033 1,103 Other 2,112 1,930 1,860 Maintenance 887 763 782 Depreciation and amortization 1,539 1,367 1,133 Taxes other than income taxes 599 572 634 Income taxes 678 725 747 Write down of South American assets (Note 5) 308 - - Write down of Rocky Mountain plant (Note 3) 34 - - Income tax benefit for write down of assets (121) - - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total operating expenses 9,650 10,671 8,504 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Operating Income 1,753 1,940 1,854 Other Income: Interest income 243 152 54 Equity in earnings of unconsolidated subsidiaries 123 35 6 Other, net 57 24 40 Income tax benefits (expenses) applicable to other income 8 34 (10) Windfall profits tax assessed in United Kingdom (Note 8) - (148) - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Income Before Interest Charges 2,184 2,037 1,944 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Interest Charges and Other: Interest on long-term debt 712 678 530 Interest on notes payable 108 112 107 Amortization of debt discount, premium, and expense, net 65 34 33 Other interest charges 68 49 27 Minority interests in subsidiaries 80 29 13 Distributions on capital and preferred securities of subsidiary companies 149 120 22 Preferred dividends of subsidiary companies 25 43 85 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Interest charges and other, net 1,207 1,065 817 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Consolidated Net Income $ 977 $ 972 $ 1,127 ============================================================================================================================= Common Stock Data: (Note 9) Average number of shares of common stock outstanding (in millions) 697 685 673 Basic and diluted earnings per share of common stock $1.40 $1.42 $1.68 Cash dividends paid per share of common stock $1.34 $1.30 $1.26 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- The accompanying notes are an integral part of these statements.
II-20 CONSOLIDATED STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Southern Company and Subsidiary Companies 1998 Annual Report
1998 1997 1996 ============================================================================================================================= (in millions) Operating Activities: Consolidated net income $ 977 $ 972 $ 1,127 Adjustments to reconcile consolidated net income to net cash provided from operating activities -- Depreciation and amortization 1,773 1,592 1,338 Deferred income taxes and investment tax credits (22) (5) 57 Gain on asset sales (61) (25) (59) Write down of South American assets 308 - - Write down of Rocky Mountain plant 34 - - Other, net (199) (64) 50 Changes in certain current assets and liabilities excluding effects from acquisitions -- Receivables, net 151 (229) (25) Fossil fuel stock (35) 53 57 Materials and supplies (10) 21 47 Accounts payable (17) 138 19 Other (151) 172 (210) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Net cash provided from operating activities 2,748 2,625 2,401 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Investing Activities: Gross property additions (2,005) (1,859) (1,229) Southern Energy business acquisitions, net of cash acquired (998) (2,925) - Sales of property 281 32 211 Other 86 (13) (275) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Net cash used for investing activities (2,636) (4,765) (1,293) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Financing Activities: Proceeds -- Common stock 234 360 171 Preferred stock 200 - - Capital and preferred securities 435 1,321 322 First mortgage bonds - - 85 Other long-term debt 2,973 2,499 1,570 Redemptions -- Common stock repurchased (125) - - Preferred stock (239) (660) (179) First mortgage bonds (1,487) (168) (426) Other long-term debt (599) (802) (1,754) Increase (decrease) in notes payable, net (353) 509 (268) Payment of common stock dividends (933) (889) (846) Miscellaneous 53 126 (110) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Net cash provided from (used for) financing activities 159 2,296 (1,435) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Net Increase (Decrease) in Cash and Cash Equivalents 271 156 (327) Cash and Cash Equivalents at Beginning of Year 601 445 772 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Cash and Cash Equivalents at End of Year $ 872 $ 601 $ 445 ============================================================================================================================= Supplemental Cash Flow Information: Cash paid during the year for -- Interest (net of amount capitalized) $998 $876 $677 Income taxes $839 $823 $706 Southern Energy business acquisitions -- Fair value of assets acquired $1,072 $4,768 $- Less cash paid for common stock 998 2,925 - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Liabilities assumed $ 74 $1,843 $- ============================================================================================================================= The accompanying notes are an integral part of these statements.
11-21 CONSOLIDATED BALANCE SHEETS At December 31, 1998 and 1997 Southern Company and Subsidiary Companies 1998 Annual Report
============================================================================================================================== Assets 1998 1997 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ (in millions) Utility Plant: Plant in service (Note 1) $35,364 $34,044 Less accumulated provision for depreciation 13,239 11,934 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- 22,125 22,110 Nuclear fuel, at amortized cost 217 230 Construction work in progress (Note 4) 1,782 1,312 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 24,124 23,652 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Other Property and Investments: Goodwill, net of accumulated amortization of $106 million in 1998 and $55 million in 1997 (Note 13) 2,067 1,888 Property rights, net of accumulated amortization of $169 million in 1998 and $108 million in 1997 1,185 1,389 Equity investments in unconsolidated subsidiaries 1,560 1,168 Nuclear decommissioning trusts 516 387 Miscellaneous 644 742 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 5,972 5,574 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 872 601 Special deposits 87 103 Receivables, less accumulated provisions for uncollectible accounts of $113 million in 1998 and $77 million in 1997 1,797 2,007 Fossil fuel stock, at average cost 252 218 Materials and supplies, at average cost 515 493 Prepayments 102 98 Vacation pay deferred 81 79 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 3,706 3,599 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Deferred Charges and Other Assets: Deferred charges related to income taxes (Note 8) 1,036 1,142 Prepaid pension costs 491 383 Debt expense, being amortized 129 101 Premium on reacquired debt, being amortized 294 285 Miscellaneous 440 519 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 2,390 2,430 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total Assets $36,192 $35,255 ============================================================================================================================= The accompanying notes are an integral part of these balance sheets.
11-22 CONSOLIDATED BALANCE SHEETS (continued) At December 31, 1998 and 1997 Southern Company and Subsidiary Companies 1998 Annual Report
============================================================================================================================= Capitalization and Liabilities 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- (in millions) Capitalization (See accompanying statements): Common stock equity $ 9,797 $ 9,647 Preferred stock of subsidiaries 369 493 Company or subsidiary obligated mandatorily redeemable capital and preferred securities 2,179 1,744 Long-term debt 10,472 10,274 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 22,817 22,158 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Amount of securities due within one year 1,526 784 Notes payable 1,828 2,064 Accounts payable 1,027 1,049 Customer deposits 125 133 Taxes accrued -- Federal and state income 50 120 Other 299 259 Interest accrued 233 262 Vacation pay accrued 112 108 Miscellaneous 542 608 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 5,742 5,387 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 8) 4,481 4,650 Deferred credits related to income taxes (Note 8) 715 746 Accumulated deferred investment tax credits 723 754 Employee benefits provisions 474 431 Minority interests in subsidiaries 535 435 Prepaid capacity revenues 96 110 Department of Energy assessments 64 72 Disallowed Plant Vogtle capacity buyback costs 54 56 Storm damage reserves 24 38 Miscellaneous 467 418 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 7,633 7,710 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 1, 2, 3, 4, 5, 7, 12, and 13) Total Capitalization and Liabilities $36,192 $35,255 ============================================================================================================================= The accompanying notes are an integral part of these balance sheets.
11-23 CONSOLIDATED STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Southern Company and Subsidiary Companies 1998 Annual Report
================================================================================================================================= 1998 1997 1998 1997 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (in millions) (percent of total) Common Stock Equity: Common stock, par value $5 per share -- Authorized -- 1 billion shares Issued -- 1998: 700 million shares -- 1997: 693 million shares Par value $ 3,499 $ 3,467 Paid-in capital 2,463 2,331 Treasury, at cost (Note 9) (58) - Retained earnings (Note 9) 3,878 3,842 Accumulated other comprehensive income 15 7 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Total common stock equity 9,797 9,647 42.9% 43.5% - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Cumulative Preferred Stock of Subsidiaries: $100 par or stated value -- 4.20% to 7.00% 135 136 $25 par or stated value -- 5.20% to 6.80% 200 131 Adjustable and auction rates -- at 1/1/99: 4.00% to 4.30% 120 226 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Total (annual dividend requirement -- $23 million) 455 493 Less amount due within one year 86 - - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Total excluding amount due within one year 369 493 1.6 2.2 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Company or Subsidiary Obligated Mandatorily Redeemable Capital and Preferred Securities (Note 10): $25 liquidation value -- 6.85% to 7.00% 235 - 7.13% to 7.38% 297 97 7.60% to 7.63% 415 415 7.75% 649 649 8.14% to 9.00% 583 583 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Total (annual distribution requirement -- $168 million) 2,179 1,744 9.6 7.9 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Long-Term Debt of Subsidiaries: First mortgage bonds -- Maturity Interest Rates -------- -------------- 1998 5.00% to 8.67% - 238 1999 6.13% to 8.67% 373 373 2000 6.00% to 8.67% 209 349 2001 8.67% 9 9 2002 6.85% to 8.67% 10 260 2003 6.13% to 8.67% 635 635 2004 through 2008 6.07% to 8.67% 197 372 2009 through 2013 8.67% 75 75 2014 through 2018 8.67% 56 56 2019 through 2023 7.30% to 8.75% 614 1,298 2024 through 2028 6.88% to 9.00% 287 287
11-24 CONSOLIDATED STATEMENTS OF CAPITALIZATION (continued) At December 31, 1998 and 1997 Southern Company and Subsidiary Companies 1998 Annual Report
=========================================================================================================================== 1998 1997 1998 1997 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in millions) (percent of total) Other long-term debt -- Pollution control revenue bonds -- Collateralized: 4.38% to 6.75% due 2000-2026 954 1,154 Variable rates (3.10% to 5.25% at 1/1/99) due 2011-2025 639 639 Non-collateralized: 6.75% to 7.25% due 2003-2020 110 110 5.80% due 2022 - 10 Variable rates (3.15% to 5.33% at 1/1/99) due 2021-2037 880 670 Long-term notes payable -- 5.21% to 11.00% due 1998-2002 - 481 6.13% to 11.00% due 1999-2002 437 - 5.35% to 10.00% due 2003-2004 361 47 5.49% to 10.50% due 2005 551 73 6.80% to 8.14% due 2006 582 578 7.16% to 10.25% due 2007 447 475 3.66% to 10.56% due 2008-2015 959 362 6.38% to 8.12% due 2018-2038 803 20 6.88% to 7.13% due 2047-2048 729 194 Adjustable rates (5.23% to 7.10% at 1/1/99) due 1998-2001 397 710 Adjustable rates (6.58% at 1/1/99) due 2002 793 847 Adjustable rates (3.96% at 1/1/99) due 2004 516 478 Adjustable rates (6.93% to 7.57% at 1/1/99) due 2005-2007 252 201 Capitalized lease obligations 135 142 Unamortized debt premium (discount), net (98) (85) - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement -- $771 million) 11,912 11,058 Less amount due within one year (Note 11) 1,440 784 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 10,472 10,274 45.9 46.4 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total Capitalization $22,817 $22,158 100.0% 100.0% =========================================================================================================================== The accompanying notes are an integral part of these statements.
11-25 CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME For the Years Ended December 31, 1998, 1997, and 1996 Southern Company and Subsidiary Companies 1998 Annual Report
================================================================================================================================= 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- (in millions) Consolidated Net Income $977 $972 $1,127 Other comprehensive income: Foreign currency translation adjustments 12 (10) 31 Gain on investments realized in net income - - (42) Less applicable income taxes (benefits) 4 (3) (4) - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Consolidated Comprehensive Income $985 $965 $1,120 ================================================================================================================================== CONSOLIDATED STATEMENTS OF PAID-IN CAPITAL For the Years Ended December 31, 1998, 1997, and 1996 ================================================================================================================================= 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- (in millions) Balance at Beginning of Year $2,331 $2,053 $1,920 Proceeds from sales of common stock over the par value -- 6.3 million, 16.4 million, and 7.5 million shares in 1998, 1997, and 1996, respectively 132 278 133 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Balance at End of Year $2,463 $2,331 $2,053 ================================================================================================================================== CONSOLIDATED STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 ================================================================================================================================== 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- (in millions) Balance at Beginning of Year $3,842 $3,764 $3,483 Consolidated net income 977 972 1,127 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- 4,819 4,736 4,610 Cash dividends on common stock 933 889 846 Capital and preferred stock transactions, net 8 5 - - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Balance at End of Year (Note 9) $3,878 $3,842 $3,764 ================================================================================================================================== CONSOLIDATED STATEMENTS OF ACCUMULATED OTHER COMPREHENSIVE INCOME For the Years Ended December 31, 1998, 1997, and 1996 =================================================================================================================================== 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (in millions) Balance at Beginning of Year $ 7 $14 $21 Change during the year 8 (7) (7) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Balance at End of Year $15 $ 7 $14 ==================================================================================================================================== The accompanying notes are an integral part of these statements.
11-26 NOTES TO FINANCIAL STATEMENTS Southern Company and Subsidiary Companies 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Southern Company is the parent company of five operating companies, a system service company, Southern Communications Services (Southern LINC), Southern Company Energy Solutions, Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), and other direct and indirect subsidiaries. The operating companies -- Alabama Power, Georgia Power, Gulf Power, Mississippi Power, and Savannah Electric -- provide electric service in four southeastern states. Contracts among the operating companies -- dealing with jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power --are regulated by the Federal Energy Regulatory Commission (FERC) and/or the Securities and Exchange Commission (SEC). The system service company provides, at cost, specialized services to Southern Company and subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Southern Company Energy Solutions develops new business opportunities related to energy products and services. Worldwide, Southern Energy develops and manages electricity and other energy related projects, including domestic energy trading and marketing. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both the company and its subsidiaries are subject to the regulatory provisions of the PUHCA. The operating companies also are subject to regulation by the FERC and their respective state public service commissions. The companies follow generally accepted accounting principles and comply with the accounting policies and practices prescribed by their respective commissions. The preparation of financial statements in conformity with generally accepted accounting principles requires the use of estimates, and the actual results may differ from those estimates. All material intercompany items have been eliminated in consolidation. The consolidated financial statements reflect investments in controlled subsidiaries on a consolidated basis and other investments on an equity basis. Certain prior years' data presented in the consolidated financial statements have been reclassified to conform with the current year presentation. Regulatory Assets and Liabilities The operating companies are subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the operating companies associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Consolidated Balance Sheets at December 31 relate to the following: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Deferred income taxes $1,036 $1,142 Deferred Plant Vogtle costs - 50 Premium on reacquired debt 294 285 Demand-side programs - 11 Department of Energy assessments 57 63 Vacation pay 81 79 Deferred fuel charges - 4 Postretirement benefits 36 38 Work force reduction costs 17 37 Deferred income tax credits (715) (746) Storm damage reserves (24) (36) Other, net 145 152 - - - - - - - --------------------------------------------------------------- Total $ 927 $1,079 =============================================================== In the event that a portion of an operating company's operations is no longer subject to the provisions of FASB Statement No. 71, the company would be required to write off related net regulatory assets and liabilities that are not specifically recoverable through regulated rates. In addition, the company would be required to determine if any impairment to other assets exists, including plant, and write down the assets, if impaired, to their fair value. Revenues and Fuel Costs The operating companies accrue revenues for service rendered but unbilled at the end of each fiscal period. Fuel costs are expensed as the fuel is used. The operating companies' electric rates include provisions to adjust billings for fluctuations in fuel costs, the energy component of purchased power costs, and 11-27 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report certain other costs. Revenues are adjusted for differences between recoverable fuel costs and amounts actually recovered in current rates. Southern Company has a diversified base of customers. No single customer or industry comprises 10 percent or more of revenues. For all periods presented, uncollectible accounts continued to average less than 1 percent of revenues. Fuel expense includes the amortization of the cost of nuclear fuel and a charge, based on nuclear generation, for the permanent disposal of spent nuclear fuel. Total charges for nuclear fuel included in fuel expense amounted to $133 million in 1998, $144 million in 1997, and $142 million in 1996. Alabama Power and Georgia Power have contracts with the U.S. Department of Energy (DOE) that provide for the permanent disposal of spent nuclear fuel. Although disposal was scheduled to begin in 1998, the actual year this service will begin is uncertain. The DOE failed to begin disposing of spent fuel in January 1998, as required by the contracts, and the companies are pursuing legal remedies against the government for breach of contract. Sufficient storage capacity currently is available to permit operation into 2003 at Plant Hatch, into 2017 at Plant Vogtle, and into 2009 and 2013 at Plant Farley units 1 and 2, respectively. Plant Vogtle's spent fuel storage capacity includes the installation in 1998 of additional rack capacity. Activities for adding dry cask storage capacity at Plant Hatch by as early as 1999 are in progress. Also, the Energy Policy Act of 1992 required the establishment in 1993 of a Uranium Enrichment Decontamination and Decommissioning Fund, which is funded in part by a special assessment on utilities with nuclear plants. This assessment is being paid over a 15-year period, which began in 1993. This fund will be used by the DOE for the decontamination and decommissioning of its nuclear fuel enrichment facilities. The law provides that utilities will recover these payments in the same manner as any other fuel expense. Alabama Power and Georgia Power -- based on its ownership interests -- estimate their respective remaining liability at December 31, 1998, under this law to be approximately $31 million and $24 million. These obligations are recorded in the Consolidated Balance Sheets. Depreciation and Nuclear Decommissioning Depreciation of the original cost of depreciable utility plant in service is provided primarily by using composite straight-line rates, which approximated 3.4 percent in 1998, 3.4 percent in 1997, and 3.3 percent in 1996. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost -- together with the cost of removal, less salvage -- is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Depreciation expense includes an amount for the expected costs of decommissioning nuclear facilities and removal of other facilities. Georgia Power recorded additional depreciation of electric plant amounting to $316 million in 1998, $159 million in 1997, and $24 million in 1996. The accumulated depreciation related to these charges is $505 million at December 31, 1998. See Note 3 under "Georgia Power 1998 Retail Rate Order" for additional information. The Nuclear Regulatory Commission (NRC) requires all licensees operating commercial power reactors to establish a plan for providing, with reasonable assurance, funds for decommissioning. Alabama Power and Georgia Power have external trust funds to comply with the NRC's regulations. Amounts previously recorded in internal reserves are being transferred into the external trust funds over periods approved by the respective state public service commissions. The NRC's minimum external funding requirements are based on a generic estimate of the cost to decommission the radioactive portions of a nuclear unit based on the size and type of reactor. Alabama Power and Georgia Power have filed plans with the NRC to ensure that -- over time -- the deposits and earnings of the external trust funds will provide the minimum funding amounts prescribed by the NRC. Site study cost is the estimate to decommission a specific facility as of the site study year, and ultimate cost is the estimate to decommission a specific facility as of its retirement date. The estimated costs of decommissioning -- both site study costs and ultimate costs -- based on the most current study as 11-28 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report of December 31, 1998, for Alabama Power's Plant Farley and Georgia Power's ownership interests in plants Hatch and Vogtle were as follows: Plant Plant Plant Farley Hatch Vogtle - - - - - - - --------------------------------------------------------------- Site study basis (year) 1998 1997 1997 Decommissioning periods: Beginning year 2017 2014 2027 Completion year 2031 2027 2038 - - - - - - - --------------------------------------------------------------- (in millions) Site study costs: Radiated structures $629 $372 $317 Non-radiated structures 60 33 44 - - - - - - - --------------------------------------------------------------- Total $689 $405 $361 =============================================================== (in millions) Ultimate costs: Radiated structures $1,868 $722 $ 922 Non-radiated structures 178 65 129 - - - - - - - ---------------------------------------------------------------- Total $2,046 $787 $1,051 ================================================================ Significant assumptions: Inflation rate 4.5% 3.6% 3.6% Trust earning rate 7.0 6.5 6.5 - - - - - - - ---------------------------------------------------------------- The decommissioning cost estimates are based on prompt dismantlement and removal of the plant from service. The actual decommissioning costs may vary from the above estimates because of changes in the assumed date of decommissioning, changes in NRC requirements, or changes in the assumptions used in making these estimates. Annual provisions for nuclear decommissioning are based on an annuity method as approved by the respective state public service commissions. The amount expensed in 1998 and fund balances were as follows: Plant Plant Plant Farley Hatch Vogtle - - - - - - - --------------------------------------------------------------- (in millions) Amount expensed in 1998 $ 18 $ 11 $ 9 Accumulated provisions: Balance in external trust funds $232 $172 $112 Balance in internal reserves 42 19 12 - - - - - - - --------------------------------------------------------------- Total $274 $191 $124 =============================================================== Alabama Power's decommissioning costs for ratemaking are based on the site study. For Georgia Power effective January 1, 1999, the GPSC increased the annual provision for decommissioning expenses to $26 million. This amount is based on the NRC generic estimate to decommission the radioactive portion of the facilities as of 1997. The estimates are $526 million and $438 million for plants Hatch and Vogtle, respectively. The ultimate costs associated with the 1997 NRC minimum funding requirements are $1.1 billion and $1.3 billion for plants Hatch and Vogtle, respectively. Significant assumptions include an estimated inflation rate of 3.6 percent and an estimated trust earnings rate of 6.5 percent. Alabama Power and Georgia Power expect their respective state public service commissions to periodically review and adjust, if necessary, the amounts collected in rates for the anticipated cost of decommissioning. Income Taxes Southern Company uses the liability method of accounting for deferred income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. Utility Plant Utility plant is stated at original cost less regulatory disallowances. Original cost includes: materials; labor; minor items of property; appropriate administrative and general costs; payroll-related costs such as taxes, pensions, and other benefits; and the estimated cost of funds used during construction. The cost of maintenance, repairs, and replacement of minor items of property is charged to maintenance expense. The cost of replacements of property -- exclusive of minor items of property -- is charged to utility plant. Property Rights Included in property rights are leasehold interests in Southern Energy's power generation facilities that are developed under build, operate, and transfer agreements with foreign governments. Southern Energy's construction costs are initially recorded as construction work in progress, and -- after completion -- these costs are recorded as leasehold interests. These costs are amortized over the length of time the facility is operated before transferring ownership to the local government. Also included in property rights is a concession agreement assigned in 1993 by the Argentine government to Southern Energy for the operation of a hydroelectric plant. Cash and Cash Equivalents For purposes of the consolidated financial statements, temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. 11-29 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Materials and Supplies Generally, materials and supplies include the costs of transmission, distribution, and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when installed. Foreign Currency Translation Assets and liabilities of Southern Company's international operations, where the local currency is the functional currency, have been translated at year-end exchange rates, and revenues and expenses have been translated using average exchange rates prevailing during the year. Adjustments resulting from translation have been recorded in other comprehensive income. The financial statements of international operations, where the U.S. dollar is the functional currency, reflect certain transactions denominated in the local currency that have been remeasured in U.S. dollars. The remeasurement of local currencies into U.S. dollars creates gains and losses from foreign currency transactions that are included in consolidated net income. Foreign exchange gains and losses are not material for all periods presented. Comprehensive Income In 1998, Southern Company adopted FASB Statement No. 130, Reporting Comprehensive Income. This statement establishes rules for the reporting and display of comprehensive income and its components. Comprehensive income consists of net income and foreign currency translation adjustments and is presented in the consolidated financial statements. The objective of the statement is to report a measure of all changes in common stock equity of an enterprise that result from transactions and other economic events of the period other than transactions with owners. Financial Instruments for Non-Trading Activities Non-trading derivative financial instruments are used to hedge exposures to fluctuations in interest rates, foreign currency exchange rates, and certain commodity prices. Gains and losses on qualifying hedges are deferred and recognized either in income or as an adjustment to the carrying amount when the hedged transaction occurs. The company utilizes interest rate swaps and cross currency interest rate swaps to minimize borrowing costs by changing the interest rate and currency of the original borrowing. For qualifying hedges, the interest rate differential is reflected as an adjustment to interest expense over the life of the swaps. Southern Company's international operations are exposed to the effects of foreign currency exchange rate fluctuations. To protect against this exposure, the company utilizes currency swaps to hedge its net investment in certain foreign subsidiaries, which has the effect of converting foreign currency cash inflows into U.S. dollars at fixed exchange rates. Gains or losses on these currency swaps, designated as hedges of net investments, are offset against the translation effects reflected in other comprehensive income, net of tax. Non-trading financial derivative instruments held at December 31, 1998, were as follows: Year of Unrecognized Maturity or Notional Gain Type Termination Amount (Loss) - - - - - - - ------------------------------- ---------------------------- (in millions) Interest rate swaps: 2002-2016 $928 $(69) 2001-2012 (pound)600 $(130) 2002-2007 DM691 $(30) Cross currency swaps 2001-2007 (pound)429 $11 Cross currency swaption 2003 DM555 $(18) - - - - - - - ---------------------------------------------------------------- (pound) - Denotes British pound sterling. DM - Denotes Deutschemark. The company is exposed to losses related to financial instruments in the event of counterparties' nonperformance. The company has established controls to determine and monitor the creditworthiness of counterparties in order to mitigate the company's exposure to counterparty credit risk. The company is unaware of any counterparties that will fail to meet their obligations. In the United Kingdom, the company utilizes contracts to mitigate its exposure to volatility in the prices of electricity purchased through the wholesale electricity market. These contracts allow the company to effectively convert the majority of its anticipated wholesale electricity purchases from market prices to fixed prices. The gains and losses on these contracts are deferred and recognized as electricity is purchased. Recently, a market has developed for trading these contracts in the United Kingdom. However, due to the immaturity of this market and the complexity of the company's existing contracts, it is not practicable to estimate the fair value of these contracts. 11-30 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Other Southern Company financial instruments for which the carrying amount did not equal fair value at December 31 were as follows: Carrying Fair Amount Value - - - - - - - ---------------------------------------------------------------- (in millions) Long-term debt: At December 31, 1998 $11,777 $11,626 At December 31, 1997 10,916 11,160 Capital and preferred securities: At December 31, 1998 2,179 2,288 At December 31, 1997 1,744 1,826 - - - - - - - ---------------------------------------------------------------- The fair values for long-term debt and capital and preferred securities were based on either closing market price or closing price of comparable instruments. Financial Instruments for Trading Activities Effective in January 1998, Southern Energy and Vastar Resources, Inc. (Vastar) combined their energy trading and marketing activities to form a joint venture. Southern Energy's investment in the joint venture is accounted for under the equity method of accounting. See Note 5 under "Energy Trading and Marketing Commitments" for additional information. Financial statement disclosure related to Southern Energy's energy trading and marketing activities for 1997 -- prior to the formation of the joint venture was presented as follows: Derivative financial instruments used for trading purposes primarily relate to commodities associated with the energy sector, such as electricity, natural gas, and crude oil. These instruments were recorded at fair value for balance sheet purposes. The determination of fair value considers various factors, such as closing exchange prices, broker price quotations, and model pricing. Model pricing considers time value and volatility factors underlying any options and contractual commitments. These transactions were accounted for using the mark-to-market method of accounting in which the unrealized gains or losses resulting from the impact of price movements are recognized as net gains or losses in the consolidated statements of income. If the company has a master netting agreement with counterparties, net positions were recognized for consolidated balance sheet and income statement purposes. In 1997, the company provided price risk management services by entering into a variety of contractual commitments such as price cap and floor agreements, futures contracts, forward purchase and sale agreements, and option contracts. These contracts generally require future settlement, and are either executed on an exchange or traded as over-the-counter (OTC) instruments. Contractual commitments had widely varying terms and durations that ranged from a few hours to a number of years depending on the instrument. The majority of the company's transactions at December 31, 1997, were short-term in duration, with a weighted average maturity of approximately 1.3 years. All contractual commitments used for trading purposes were recorded at fair value. Contracts in a net receivable position, as well as options held, were reported as assets. Similarly, contractual commitments in a net payable position, as well as options written, were reported as liabilities. The net unrealized gain from risk management services amounted to $8 million at December 31, 1997. Contractual commitments reflected in the Consolidated Balance Sheets at December 31, 1997 were as follows: Net Notional Fair Value Amounts -------------------- 1997 (Kilowatt-Hours) Assets Liabilities - - - - - - - ----- ------------------------------------------- (in millions) Exchange-issued products: Futures contracts 904 $14 $15 Other 958 1 1 - - - - - - - --------------------------------------------------------------- Total 1,862 15 16 - - - - - - - --------------------------------------------------------------- OTC products: Forward contracts 2,643 69 62 Swaps (473) 1 - Other 639 9 8 - - - - - - - --------------------------------------------------------------- Total 2,809 79 70 - - - - - - - --------------------------------------------------------------- Total 4,671 $94 $86 =============================================================== Notional amounts -- stated in equivalent millions of kilowatt-hours -- are indicative only of the volume of activity and are not a measure of market risk. Notional amounts of natural gas and crude oil positions are reflected in equivalent kilowatt-hours based on standard conversion rates. 11-31 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report The annual average gross balances of the company's options and contractual commitments used for trading purposes, based on month-end balances were as follows: Average Fair Value ----------------------------- 1997 Assets Liabilities - - - - - - - ---- ----------------------------- (in millions) Commodity instruments: Electricity $97 $94 Gas 6 6 Other 7 6 - - - - - - - ----------------------------------------------------------------- 2. RETIREMENT BENEFITS Southern Company has defined benefit, trusteed, pension plans that cover substantially all employees. In the United States, Southern Company provides certain medical care and life insurance benefits for retired employees. Substantially all these employees may become eligible for such benefits when they retire. The operating companies fund trusts to the extent deductible under federal income tax regulations or to the extent required by their respective regulatory commissions. In 1998, Southern Company adopted FASB Statement No. 132 Employers' Disclosure about Pensions and Other Postretirement Benefits. The measurement date is September 30 for each year. Pension Plans Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $3,701 $3,624 Service cost 99 94 Interest cost 273 271 Benefits paid (201) (163) Actuarial (gain) loss 298 (125) - - - - - - - ---------------------------------------------------------------- Balance at end of year $4,170 $3,701 ================================================================ Plan Assets -------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Balance at beginning of year $5,931 $5,212 Actual return on plan assets 223 911 Employer contributions 4 9 Benefits paid (180) (201) - - - - - - - --------------------------------------------------------------- Balance at end of year $5,978 $5,931 =============================================================== The accrued pension costs recognized in the Consolidated Balance Sheet were as follows: 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Funded status $ 1,808 $ 2,230 Unrecognized transition obligation (89) (101) Unrecognized prior service cost 119 126 Unrecognized net gain (1,347) (1,874) Fourth quarter contributions - 2 - - - - - - - ---------------------------------------------------------------- Prepaid asset recognized in the Consolidated Balance Sheets $ 491 $ 383 ================================================================ Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ---------------------------------------------------------------- (in millions) Service cost $ 99 $ 94 $ 99 Interest cost 273 271 267 Expected return on plan assets (425) (394) (378) Recognized net gain (47) (42) (29) Net amortization (9) (9) (12) - - - - - - - ---------------------------------------------------------------- Net pension cost (income) $(109) $ (80) $ (53) ================================================================ The weighted average rates assumed in the actuarial calculations for both the pension plans and postretirement benefits were: 1998 1997 - - - - - - - ----------------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25 5.00 Long-term return on plan assets 8.50 8.50 - - - - - - - ----------------------------------------------------------------- Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations ------------------ 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $ 935 $870 Service cost 18 18 Interest cost 69 67 Benefits paid (35) (27) Actuarial (gain) loss 50 7 - - - - - - - ---------------------------------------------------------------- Balance at end of year $1,037 $935 ================================================================ 11-32 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Plan Assets --------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $294 $260 Actual return on plan assets 8 32 Employer contributions 69 29 Benefits paid (35) (27) - - - - - - - ---------------------------------------------------------------- Balance at end of year $336 $294 ================================================================= The accrued postretirement costs recognized in the Consolidated Balance Sheet were as follows: 1998 1997 - - - - - - - ----------------------------------------------------------------- (in millions) Funded status $(701) $(641) Unrecognized transition obligation 219 233 Unrecognized prior service cost - (4) Unrecognized net loss (gain) 117 68 Fourth quarter contributions 30 41 - - - - - - - ----------------------------------------------------------------- Accrued liability recognized in the Consolidated Balance Sheets $(335) $(303) ================================================================= Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ----------------------------------------------------------------- (in millions) Service cost $ 18 $ 18 $ 20 Interest cost 69 66 60 Expected return on plan assets (21) (18) (14) Recognized net gain 2 3 3 Net amortization 14 17 15 - - - - - - - -------------------------------------------------------------- Net postretirement cost $ 82 $ 86 $ 84 ============================================================== An additional assumption used in measuring the accumulated postretirement benefit obligation was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005, and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would affect the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows: 1 Percent 1 Percent Increase Decrease - - - - - - - ---------------------------------------------------------------- (in millions) Benefit obligation $75 $(63) Service and interest costs 7 (6) - - - - - - - ---------------------------------------------------------------- Work Force Reduction Programs Southern Company has incurred additional costs for work force reduction programs. The costs related to these programs were $32 million, $50 million, and $85 million, for the years 1998, 1997, and 1996, respectively. In addition, certain costs of these programs were deferred and are being amortized in accordance with regulatory treatment. The unamortized balance of these costs was $17 million at December 31, 1998. 3. LITIGATION AND REGULATORY MATTERS Alabama Power Appliance Warranty Litigation In 1996, a class action against Alabama Power was filed charging Alabama Power with fraud and non-compliance with regulatory statutes relating to the offer, sale, and financing of "extended service contracts" in connection with the sale of electric appliances. The plaintiffs seek damages in an unspecified amount. Alabama Power has offered extended service agreements to its customers since January 1984, and approximately 175,000 extended service agreements could be involved in these proceedings. The trial court has granted partial summary judgment in favor of the plaintiffs. Alabama Power has appealed this decision to the Supreme Court of Alabama. The final outcome of this case cannot now be determined. Alabama Power Environmental Litigation On November 30, 1998, total judgments of nearly $53 million were entered in favor of five plaintiffs against Alabama Power and two large textile manufacturers. The plaintiffs alleged that the manufacturers had discharged certain polluting substances into a stream that empties into Lake Martin, a hydroelectric reservoir owned by Alabama Power, and that such discharges had reduced the value of the plaintiffs' residential lots on Lake Martin. Of the total amount of the judgments, $155 thousand was compensatory damages and the remainder was punitive damages. The damages were assessed against all three defendants jointly. Post-trial motions have been filed, and, if relief is not granted at the trial court level, Alabama Power will appeal these judgments to the Supreme Court of Alabama. While Alabama Power believes that these judgments should be reversed or set aside, the final outcome of this matter cannot now be determined. 11-33 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Georgia Power Potentially Responsible Party Status In January 1995, Georgia Power and four other unrelated entities were notified by the Environmental Protection Agency (EPA) that they have been designated as potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act with respect to a site in Brunswick, Georgia. As of December 31, 1998, Georgia Power had recorded approximately $5 million in cumulative expenses associated with the site. This represents Georgia Power's agreed-upon share of the removal and remedial investigation and feasibility study costs. The final outcome of this matter cannot now be determined. However, based on the nature and extent of Georgia Power's activities relating to the site, management believes that the company's portion of any remaining remediation costs should not be material to the financial statements. FERC Review of Equity Returns On September 21, 1998, the FERC entered separate orders affirming the outcome of the administrative law judge's opinions in two proceedings in which the return on common equity component of formula rates contained in substantially all of the operating companies' wholesale power contracts was being challenged as unreasonably high. These orders resulted in no change in the wholesale power contracts that were the subject of such proceedings. The FERC also dismissed a complaint filed by three customers under long-term power sales agreements seeking to lower the equity return component in such agreements. These customers have filed applications for rehearing regarding each FERC order. In response to a requirement of the September 1998 FERC orders, Southern Company filed a new equity return component on the long-term power sales contracts, to be effective January 5, 1999. The proposed equity return was lowered from 13.75 percent to 12.50 percent. If the filed equity return is approved, the estimated impact on Southern Company's revenues will be approximately $7 million annually. The FERC placed the new rates into effect subject to refund. Also, this filing was consolidated with the new proceeding discussed below. On December 28, 1998, the FERC staff filed a motion asking the FERC to initiate a new proceeding regarding the equity return and other issues involving the operating companies' formula rate contracts. The motion was submitted pursuant to review procedures applicable to these contracts, and would be applicable to billings under such contracts on and after January 1, 1999. Southern Company Tax Litigation In August 1997, Southern Company and the Internal Revenue Service (IRS) entered into a settlement agreement related to tax issues for the years 1984 through 1987. The agreement received final approval by the Joint Congressional Committee on Taxation in June 1998 and as a result, Alabama Power and Georgia Power recognized interest income in 1998 of $14 million and $69 million, respectively. The refund by the IRS has been received and this matter is now concluded. Mobile Energy Services Petition for Bankruptcy On January 14, 1999, Mobile Energy Services Company, LLC (MESC) -- an indirect subsidiary of Southern Company -- filed a petition for Chapter 11 bankruptcy relief in the U.S. Bankruptcy Court for the Southern District of Alabama. MESC is the owner and operator of a facility that generates electricity, produces steam, and processes black liquor as part of a pulp and paper complex in Mobile, Alabama. This action is in response to Kimberly-Clark Tissue Company's announcement in May 1998 of plans to close its pulp mill, effective September 1, 1999. As a part of the filing, MESC also is seeking payment for damages from Kimberly-Clark Tissue Company. MESC will continue to operate the facility as debtors-in possession, subject to the supervision and orders of the bankruptcy court. A reorganization plan has not yet been filed by MESC. Southern Company's equity investment in MESC was $20 million and MESC's total assets were $392 million at December 31, 1998. MESC contributed $4 million and $6 million to consolidated net income in 1998 and 1997, respectively. At December 31, 1998, MESC had senior debt outstanding of $234 million of first mortgage bonds and $85 million related to tax-exempt bonds. MESC paid in January 1999 its regular semi-annual payment of $17 million to its bondholders. The final outcome of this matter cannot now be determined. Alabama Power Rate Adjustment Procedures In November 1982, the Alabama Public Service Commission (APSC) adopted rates that provide for periodic adjustments based upon Alabama Power's earned return on end-of-period retail common equity. The rates also provide for adjustments to recognize the placing of new generating facilities in retail service. Both increases and decreases have been placed into effect since the adoption of these rates. The rate adjustment procedures allow a return on common equity range of 13 percent to 14.5 percent and limit increases or decreases in rates to 4 percent in any calendar year. 11-34 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report In June 1995, the APSC issued a rate order granting Alabama Power's request for gradual adjustments to move toward parity among customer classes. This order also calls for a moratorium on any periodic retail rate increases (but not decreases) until July 2001. In December 1995, the APSC issued an order authorizing Alabama Power to reduce balance sheet items -- such as plant and deferred charges -- at any time the company's actual base rate revenues exceed the budgeted revenues. In April 1997, the APSC issued an additional order authorizing Alabama Power to reduce balance sheet asset items. This order authorizes the reduction of such items up to an amount equal to five times the total estimated annual revenue reduction resulting from future rate reductions initiated by Alabama Power. In 1998, Alabama Power -- in accordance with the 1995 rate order -- recorded $33 million of additional amortization of premium on reacquired debt. The ratemaking procedures will remain in effect until the APSC votes to modify or discontinue them. Georgia Power Investment in Rocky Mountain In its 1985 financing order, the GPSC concluded that completion of the Rocky Mountain pumped storage hydroelectric plant in 1991 as then planned was not economically justifiable and reasonable and withheld authorization for Georgia Power to spend funds from approved securities issuances on that plant. In 1988, Georgia Power and Oglethorpe Power Corporation (OPC) entered into a joint ownership agreement for OPC to assume responsibility for the construction and operation of the plant. The plant went into commercial operation in 1995. In June 1996, the GPSC initiated a review of this plant. On January 14, 1998, the GPSC ordered that Georgia Power be allowed to include approximately $108 million of its $142 million investment in rate base as of December 31, 1998. In December 1998, Georgia Power recorded a write down of $34 million -- $21 million after taxes -- on its investment in Rocky Mountain as a result of the GPSC's 1998 retail rate order discussed later. This matter is now concluded. Georgia Power 1998 Retail Rate Order As required by the GPSC, Georgia Power filed a general rate case in 1998. On December 18, 1998, the GPSC approved a new three-year rate order for Georgia Power. Under the terms of the order, Georgia Power's earnings will continue to be evaluated against a retail return on common equity range of 10 percent to 12.5 percent. Georgia Power's annual retail rates will be decreased by $262 million effective January 1, 1999, and by an additional $24 million effective January 1, 2000. The order further provides for $85 million each year, and up to an additional $50 million annually in 2000 and 2001 of any earnings in excess of the 12.5 percent return, to be applied to accelerated amortization or depreciation of assets. Two-thirds of any additional earnings in excess of the 12.5 percent return in any year will be applied to rate reductions and the remaining one-third retained by Georgia Power. During the term of the order, Georgia Power will not file for a general base rate increase unless its projected retail return on common equity falls below 10 percent. Georgia Power is required to file a general rate case on July 1, 2001. At that time, the GPSC would be expected to determine whether the rate order should be continued, modified, or discontinued. 4. CONSTRUCTION PROGRAM Southern Company is engaged in continuous construction programs, currently estimated to total some $2.6 billion in 1999, $2.1 billion in 2000, and $2.1 billion in 2001. The construction programs are subject to periodic review and revision, and actual construction costs may vary from the above estimates because of numerous factors. These factors include: changes in business conditions; acquisition of additional generating assets; revised load growth estimates; changes in environmental regulations; changes in existing nuclear plants to meet new regulatory requirements; increasing costs of labor, equipment, and materials; and cost of capital. At December 31, 1998, significant purchase commitments were outstanding in connection with the construction program. The operating companies have approximately 2,700 megawatts of combined cycle generation scheduled to be placed in service by 2001. Southern Energy has under construction some 1,300 megawatts of owned capacity. In addition, significant construction will continue related to transmission and distribution facilities and the upgrading of generating plants. See Management's Discussion and Analysis under "Environmental Matters" for information on the impact of the Clean Air Act Amendments of 1990 and other environmental matters. 5. INVESTMENTS, FINANCING, AND COMMITMENTS Investments In December 1998, Southern Energy designed and implemented a plan to dispose of its Argentinean and Chilean investments by December 31, 1999. As a result, 11-35 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Southern Energy recorded an after-tax write down of approximately $200 million in 1998 to reflect the difference between the carrying value of these assets and the estimated fair value of the businesses. Southern Energy estimated the fair value of the businesses held for sale based upon bids received from prospective buyers, if available, or the discounted expected future cash flows to be generated by the assets. The adjusted carrying value of these assets held for disposal at December 31, 1998 was $90 million. These assets impacted the Consolidated Statements of Income as follows: Operating Operating Consolidated Year Revenues Income Net Income - - - - - - - ---- --------------------------------------------- 1998 $180 $39 $ 5 1997 180 38 5 1996 157 20 (5) Depreciation expense was suspended beginning January 1999, and the after-tax amount of depreciation recorded in 1998 was $16 million. Southern Energy is actively pursuing and/or negotiating with potential buyers. However at this time, a definitive agreement has not been entered into. Southern Energy acquired $670 million of generating assets in 1998 and sold an additional 26 percent interest in its United Kingdom subsidiary for $170 million. In late 1998, Southern Energy announced plans to acquire $801 million and $480 million of generating assets in California and New York, respectively. These transactions are expected to close in 1999. At December 31, 1998, Southern Energy's total assets amounted to $12 billion. Financing The amount and timing of additional equity capital to be raised in 1999 -- as well as in subsequent years -- will be contingent on Southern Company's investment opportunities. Equity capital can be provided from any combination of public offerings, private placements, or the company's stock plans. The operating companies' construction programs are expected to be financed primarily from internal sources. Short-term debt is often utilized and the amounts available are discussed below. The companies may issue additional long-term debt and preferred securities primarily for debt maturities and for redeeming higher-cost securities if market conditions permit. Bank Credit Arrangements At the beginning of 1999, unused credit arrangements with banks totaled $4.6 billion, of which $2.7 billion expires during 1999, $304 million during 2000 to 2001, $1.0 billion during 2002, and $593 million during 2003 and 2004. The following table outlines the credit arrangements by company: Amount of Credit ----------------------------------------- Expires -------------------- 2000 & Company Total Unused 1999 beyond - - - - - - - -------- ----------------------------------------- (in millions) Alabama Power $ 758 $ 758 $ 678 $ 80 Georgia Power 1,252 1,252 722 530 Gulf Power 103 97 97 - Mississippi Power 96 76 56 20 Savannah Electric 61 61 41 20 Southern Company 2,000 2,000 1,000 1,000 Southern Energy 907 340 71 269 Other 70 54 54 - - - - - - - - ----------------------------------------------------------------- Total $5,247 $4,638 $2,719 $1,919 ================================================================= Approximately $2.0 billion of the credit facilities allows for term loans ranging from one to three years. Most of the agreements include stated borrowing rates but also allow for competitive bid loans. All of the credit arrangements require payment of commitment fees based on the unused portion of the commitments or the maintenance of compensating balances with the banks. These balances are not legally restricted from withdrawal. Of the total $4.6 billion in unused credit, $1.7 billion and $1.0 billion are syndicated credit arrangements of Southern Company and Georgia Power, respectively. These facilities also require the payment of agent fees. A portion of the $4.6 billion unused credit with banks is allocated to provide liquidity support to the companies' variable rate pollution control bonds. At December 31, 1998, the amount of the credit lines allocated for this purpose was $1.4 billion. In addition, the companies from time to time borrow under uncommitted lines of credit with banks. Also, Southern Company, Alabama Power, Georgia Power, and Southern Energy borrow through commercial paper programs that have the liquidity support of committed bank credit arrangements. 11-36 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Fuel and Purchased Power Commitments To supply a portion of the fuel requirements of the generating plants, Southern Company has entered into various long-term commitments for the procurement of fossil and nuclear fuel. In most cases, these contracts contain provisions for price escalations, minimum purchase levels, and other financial commitments. Also, Southern Company has entered into various long-term commitments for the purchase of electricity. Total estimated long-term obligations at December 31, 1998, were as follows: Purchased Year Fuel Power - - - - - - - ----- ---------------------------- (in millions) 1999 $1,674 $ 161 2000 1,248 168 2001 1,048 170 2002 860 173 2003 824 177 2004 and thereafter 3,464 1,522 - - - - - - - ---------------------------------------------------------------- Total commitments $9,118 $2,371 ================================================================ Operating Leases Southern Company has operating lease agreements with various terms and expiration dates. These expenses totaled $50 million, $33 million, and $25 million for 1998, 1997, and 1996, respectively. At December 31, 1998, estimated minimum rental commitments for noncancelable operating leases were as follows: Year Amounts - - - - - - - ----- --------- (in millions) 1999 $ 46 2000 39 2001 31 2002 30 2003 29 2004 and thereafter 304 - - - - - - - --------------------------------------------------------------- Total minimum payments $479 =============================================================== Energy Trading and Marketing Commitments In January 1998, Southern Energy and Vastar combined their energy trading and marketing activities to form a joint venture, Southern Company Energy Marketing (SCEM). Southern Company and Vastar have separately made guarantees to certain counterparties regarding performance of contractual commitments by the joint venture. Southern Company and Vastar have agreed to indemnify each other against losses under such guarantees in proportion to their respective ownership shares of SCEM. Southern Company's ownership interest is 60 percent. At December 31, 1998, outstanding guarantees related to the estimated fair value of net contractual commitments were approximately $152 million. Based upon the SCEM's statistical analysis of its credit risk, Southern Company's potential exposure under these contractual commitments would not materially differ from the estimated fair value. SCEM's gross revenues and cost of sales for 1998 were $9.2 billion and $9.1 billion, respectively. Southern Energy has guaranteed certain minimum annual cash distributions, subject to exclusions, payable by SCEM to Vastar. These distributions before adjustments total $105 million for the period 1999-2002. Vastar has the right -- exercisable in the period from December 1, 2002 through the first business day of 2003 -- to sell its remaining interest in SCEM to Southern Energy. The price will range from $130 million to $210 million depending on the interest owned by Vastar at that time, plus certain other contractual considerations. Assets Subject to Lien Each of Southern Company's subsidiaries is organized as a legal entity, separate, and apart from Southern Company and its other subsidiaries. The subsidiary companies' mortgages, which secure the first mortgage bonds issued by the companies, constitute a direct first lien on substantially all of the companies' respective fixed property and franchises. There are no agreements or other arrangements among the subsidiary companies under which the assets of one company have been pledged or otherwise made available to satisfy obligations of Southern Company or any of its other subsidiaries. 6. FACILITY SALES AND JOINT OWNERSHIP AGREEMENTS Alabama Power owns an undivided interest in units 1 and 2 of Plant Miller and related facilities jointly with Alabama Electric Cooperative, Inc. Georgia Power owns undivided interests in plants Vogtle, Hatch, Scherer, and Wansley in varying amounts, together with transmission facilities, jointly with OPC, the Municipal Electric Authority of Georgia, and the city of Dalton, Georgia. In addition, Georgia Power has joint ownership agreements with OPC for 11-37 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report the Rocky Mountain project and with Florida Power Corporation (FPC) for a combustion turbine unit at Intercession City, Florida. At December 31, 1998, Alabama Power's and Georgia Power's ownership and investment (exclusive of nuclear fuel) in jointly owned facilities with the above entities were as follows: Jointly Owned Facilities ------------------------------------------ Percent Amount of Accumulated Ownership Investment Depreciation --------- ------------ ---------------- (in millions) Plant Vogtle (nuclear) 45.7% $3,296 $1,514 Plant Hatch (nuclear) 50.1 840 538 Plant Miller (coal) Units 1 and 2 91.8 717 330 Plant Scherer (coal) Units 1 and 2 8.4 112 48 Plant Wansley (coal) 53.5 298 141 Rocky Mountain (pumped storage) 25.4 169 61 Intercession City (combustion turbine) 33.3 12 * - - - - - - - ----------------------------------------------------------------- *Less than $1 million. Alabama Power and Georgia Power have contracted to operate and maintain the jointly owned facilities -- except for the Rocky Mountain project and Intercession City -- as agents for their respective co-owners. The companies' proportionate share of their plant operating expenses is included in the corresponding operating expenses in the Consolidated Statements of Income. 7. LONG-TERM POWER SALES AGREEMENTS The operating companies have long-term contractual agreements for the sale of capacity and energy to certain non-affiliated utilities located outside the system's service area. These agreements -- expiring at various dates discussed below -- are firm and pertain to capacity related to specific generating units. Because the energy is generally sold at cost under these agreements, profitability is primarily affected by revenues from capacity sales. The capacity revenues amounted to $196 million in 1998, $203 million in 1997, and $217 million in 1996. Unit power from specific generating plants is currently being sold to Florida Power & Light Company (FP&L), FPC, Jacksonville Electric Authority (JEA), and the city of Tallahassee, Florida. Under these agreements, approximately 1,600 megawatts of capacity is scheduled to be sold in 1999. Thereafter, these sales will decline to some 1,500 megawatts and remain at that approximate level -- unless reduced by FP&L, FPC, and JEA for the periods after 1999 with a minimum of three years notice -- until the expiration of the contracts in 2010. 8. INCOME TAXES At December 31, 1998, the tax-related regulatory assets and liabilities were $1.0 billion and $715 million, respectively. These assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. These liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of income tax provisions are as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Total provision for income taxes: Federal -- Currently payable $ 451 $ 547 $569 Deferred -- current year 195 188 116 -- reversal of prior years (208) (160) (74) - - - - - - - --------------------------------------------------------------- 438 575 611 - - - - - - - --------------------------------------------------------------- State -- Currently payable 106 104 82 Deferred -- current year 28 15 23 -- reversal of prior years (31) (19) (9) - - - - - - - --------------------------------------------------------------- 103 100 96 - - - - - - - --------------------------------------------------------------- International -- Windfall profits tax assessed in United Kingdom - 148 - Other 8 16 50 - - - - - - - --------------------------------------------------------------- Total 549 839 757 Less income taxes charged (credited) to other income (8) 114 10 - - - - - - - --------------------------------------------------------------- Total income taxes charged to operations $ 557 $ 725 $747 =============================================================== The first half of the windfall profits tax assessed in the United Kingdom was paid in December 1997, and the remainder in December 1998. 11-38 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities, are as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Deferred tax liabilities: Accelerated depreciation $3,315 $3,345 Property basis differences 1,667 1,756 Other 403 269 - - - - - - - --------------------------------------------------------------- Total 5,385 5,370 - - - - - - - --------------------------------------------------------------- Deferred tax assets: Federal effect of state deferred taxes 104 108 Other property basis differences 239 245 Deferred costs 132 116 Pension and other benefits 79 72 Other 293 197 - - - - - - - --------------------------------------------------------------- Total 847 738 - - - - - - - --------------------------------------------------------------- Net deferred tax liabilities 4,538 4,632 Portion included in current assets, net (57) 18 - - - - - - - --------------------------------------------------------------- Accumulated deferred income taxes in the Consolidated Balance Sheets $4,481 $4,650 =============================================================== Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation in the Consolidated Statements of Income. Credits amortized in this manner amounted to $38 million in 1998, $30 million in 1997, and $33 million in 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. A reconciliation of the federal statutory income tax rate to the effective income tax rate is as follows: 1998 1997 1996 - - - - - - - ---------------------------------------------------------------- Federal statutory rate 35.0% 35.0% 35.0% State income tax, net of federal deduction 4.1 3.4 3.2 Non-deductible book depreciation 4.1 2.3 1.8 International tax credits (6.4) - - Windfall profits tax - 8.0 - Difference in prior years' deferred and current tax rate (1.3) (1.5) (1.0) Other (1.8) (1.9) (0.5) - - - - - - - ---------------------------------------------------------------- Effective income tax rate 33.7% 45.3% 38.5% ================================================================ Southern Company files a consolidated federal income tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. The undistributed earnings of certain foreign subsidiaries aggregated $251 million as of December 31, 1998, which, under existing tax law, will not be subject to U.S. income tax until distributed. Because the earnings have been or are intended to be indefinitely reinvested, no provision has been made for any taxes that may be applicable. It is not practicable to estimate the amount of unrecognized deferred U.S. income taxes on undistributed earnings. 9. COMMON STOCK Treasury Stock In July 1998, Southern Company's Board of Directors authorized the company to make open market purchases of its common stock in an aggregate amount not to exceed $300 million through March 31, 1999. The purpose of the program is to provide shares of common stock for the purchase requirements of Southern Company's various stockholder, employee, and outside director stock purchase plans. Under the program, 4.4 million shares have been repurchased and 2.4 million shares were reissued through December 31, 1998. Shares Reserved At December 31, 1998, a total of 45 million shares was reserved for issuance pursuant to the Southern Investment Plan, the Employee Savings Plan, the Outside Directors Stock Plan, and the Performance Stock Plan. Performance Stock Plan As of December 31, 1998, 302 current and former employees participated in the Performance Stock Plan. The maximum number of shares of common stock that may be issued under the new plan may not exceed 40 million. The prices of options granted to date have been at the fair market value of the shares on the dates of grant. Options granted to date become exercisable pro rata over a maximum period of four years from the date of grant. Options outstanding will expire no later than 10 years after the date of grant, unless terminated earlier by the Southern 11-39 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Company Board of Directors in accordance with the plan. Stock option activity in 1997 and 1998 for the plan is summarized below: Shares Average Subject Option Price To Option Per Share - - - - - - - -------------------------------------------------------------- Balance at December 31, 1996 3,825,164 $21.11 Options granted 1,776,094 21.25 Options canceled (64,326) 22.10 Options exercised (137,426) 19.72 - - - - - - - -------------------------------------------------------------- Balance at December 31, 1997 5,399,506 21.15 Options granted 1,659,519 27.03 Options canceled (23,495) 23.18 Options exercised (603,195) 20.92 - - - - - - - -------------------------------------------------------------- Balance at December 31, 1998 6,432,335 $23.92 ============================================================== Shares reserved for future grants: At December 31, 1996 668,062 At December 31, 1997 38,241,376 At December 31, 1998 36,598,001 - - - - - - - -------------------------------------------------------------- Options exercisable: At December 31, 1997 2,006,511 At December 31, 1998 2,653,591 - - - - - - - -------------------------------------------------------------- Southern Company accounts for its stock-based compensation plans in accordance with Accounting Principles Board Opinion No. 25. Accordingly, no compensation expense has been recognized. The pro forma impact on earnings of fair-value accounting for options granted - - - - - - - -- as required by FASB Statement No. 123, Accounting for Stock-Based Compensation -- is less than 1 cent per share and is not significant to the consolidated financial statements. Earnings Per Share FASB Statement No. 128, Earnings per Share simplifies the methodology for computing both basic and diluted earnings per share. The only difference in the two methods for computing Southern Company's per share amounts is attributable to outstanding options under the Performance Stock Plan. The effect of the stock options was determined using the treasury stock method. Consolidated net income as reported was not affected. Shares used to compute diluted earnings per share are as follows: Average Common Stock Shares -------------------------------- 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in thousands) As reported shares 696,944 685,033 672,590 Effect of options 739 201 200 - - - - - - - --------------------------------------------------------------- Diluted shares 697,683 685,234 672,790 =============================================================== Common Stock Dividend Restrictions The income of Southern Company is derived primarily from equity in earnings of its subsidiaries. At December 31, 1998, consolidated retained earnings included $3.4 billion of undistributed retained earnings of the subsidiaries. Of this amount, $2.0 billion was restricted against the payment by the subsidiary companies of cash dividends on common stock under terms of bond indentures. 10. CAPITAL AND PREFERRED SECURITIES Company or subsidiary obligated mandatorily redeemable capital and preferred securities have been issued by special purpose financing entities of Southern Company and its subsidiaries. Substantially all the assets of these special financing entities are junior subordinated notes issued by the related company seeking financing. Each of these companies considers that the mechanisms and obligations relating to the capital or preferred securities issued for its benefit, taken together, constitute a full and unconditional guarantee by it of the respective special financing entities' payment obligations with respect to the capital or preferred securities. At December 31, 1998, capital securities of $950 million and preferred securities of $1.2 billion were outstanding. Southern Company guarantees the notes related to $950 million of capital securities issued on its behalf. 11. LONG-TERM DEBT DUE WITHIN ONE YEAR A summary of the improvement fund requirements and scheduled maturities and redemptions of long-term debt due within one year at December 31 is as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Bond improvement fund requirements $ 23 $ 38 Less: Portion to be satisfied by certifying property additions 14 3 - - - - - - - --------------------------------------------------------------- Cash requirements 9 35 First mortgage bond maturities and redemptions 868 349 Other long-term debt maturities 563 400 - - - - - - - --------------------------------------------------------------- Total $1,440 $784 =============================================================== The first mortgage bond improvement fund requirements amount to 1 percent of each outstanding series of bonds authenticated under the indentures prior to 11-40 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report January 1 of each year, other than those issued to collateralize pollution control revenue bonds and other obligations. The requirements may be satisfied by depositing cash or reacquiring bonds, or by pledging additional property equal to 166 2/3 percent of such requirements. With respect to the collateralized pollution control revenue bonds, the operating companies have authenticated and delivered to trustees a like principal amount of first mortgage bonds as security for obligations under installment sale or loan agreements. The principal and interest on the first mortgage bonds will be payable only in the event of default under the agreements. Improvement fund requirements and/or serial maturities through 2003 applicable to other long-term debt are as follows: $563 million in 1999; $385 million in 2000; $433 million in 2001; $1,035 million in 2002; and $387 million in 2003. 12. NUCLEAR INSURANCE Under the Price-Anderson Amendments Act of 1988, Alabama Power and Georgia Power maintain agreements of indemnity with the NRC that, together with private insurance, cover third-party liability arising from any nuclear incident occurring at the companies' nuclear power plants. The act provides funds up to $9.7 billion for public liability claims that could arise from a single nuclear incident. Each nuclear plant is insured against this liability to a maximum of $200 million by private insurance, with the remaining coverage provided by a mandatory program of deferred premiums that could be assessed, after a nuclear incident, against all owners of nuclear reactors. A company could be assessed up to $88 million per incident for each licensed reactor it operates, but not more than an aggregate of $10 million per incident to be paid in a calendar year for each reactor. Such maximum assessment, excluding any applicable state premium taxes, for Alabama Power and Georgia Power -- based on its ownership and buyback interests -- is $176 million and $178 million, respectively, per incident, but not more than an aggregate of $20 million per company to be paid for each incident in any one year. Alabama Power and Georgia Power are members of Nuclear Electric Insurance Limited (NEIL), a mutual insurer established to provide property damage insurance in an amount up to $500 million for members' nuclear generating facilities. Additionally, both companies have policies that currently provide decontamination, excess property insurance, and premature decommissioning coverage up to $2.25 billion for losses in excess of the $500 million primary coverage. This excess insurance is also provided by NEIL. NEIL also covers the additional costs that would be incurred in obtaining replacement power during a prolonged accidental outage at a member's nuclear plant. Members can be insured against increased costs of replacement power in an amount up to $3.5 million per week -- starting 17 weeks after the outage -- for one year and up to $2.8 million per week for the second and third years. Under each of the NEIL policies, members are subject to assessments if losses each year exceed the accumulated funds available to the insurer under that policy. The current maximum annual assessments for Alabama Power and Georgia Power under the three NEIL policies would be $21 million and $25 million, respectively. For all on-site property damage insurance policies for commercial nuclear power plants, the NRC requires that the proceeds of such policies issued or renewed on or after April 2, 1991, shall be dedicated first for the sole purpose of placing the reactor in a safe and stable condition after an accident. Any remaining proceeds are to be applied next toward the costs of decontamination and debris removal operations ordered by the NRC, and any further remaining proceeds are to be paid either to the company or to its bond trustees as may be appropriate under the policies and applicable trust indentures. All retrospective assessments -- whether generated for liability, property, or replacement power -- may be subject to applicable state premium taxes. 13. PURCHASE METHOD ACQUISITION Southern Energy completed in 1997 the acquisition of a 100 percent interest in Consolidated Electric Power Asia (CEPA) for a total net investment of some $2.1 billion. CEPA is the largest independent power producer in Asia. The CEPA 11-41 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report acquisition has been accounted for under the purchase method of accounting. The acquisition cost exceeded the fair market value of net assets by approximately $1.6 billion. This amount is considered goodwill and is being amortized on a straight-line basis over 40 years. CEPA has been included in the consolidated financial statements since January 29, 1997. The following unaudited pro forma results of operations have been prepared assuming the acquisition of CEPA, effective January 1, 1996. The pro forma results assume acquisition financing of $716 million of short-term borrowings, $792 million of long-term notes, and $600 million of capital securities. Southern Company's assumed effective composite interest rate on these obligations for each period was 6.82 percent. These unaudited pro forma results are not necessarily indicative of the actual results that would have been realized had the acquisition occurred on the assumed dates, nor are they necessarily indicative of future results. Pro forma operating results are for information purposes only and are as follows:
1997 1996 ---------------------------------------------------------- As Pro As Pro Reported Forma Reported Forma - - - - - - - ----------------------------------------------------------------------------------------------------- Operating revenues (in millions) $12,611 $12,632 $10,358 $10,506 Consolidated net income (in millions) $972 $977 $1,127 $1,109 Earnings per share $1.42 $1.43 $1.68 $1.65
14. SEGMENT AND RELATED INFORMATION Effective December 31, 1997, Southern Company adopted FASB Statement No. 131, Disclosure About Segments of an Enterprise and Related Information. Southern Company's principal business segment -- or its traditional core business -- is the five regulated electric utility operating companies that provide electric service in four southeastern states. The other reportable business segment is non-traditional energy services to retail and wholesale customers provided by Southern Energy, which develops and manages electricity and other energy-related projects both in the United States and abroad including domestic energy trading and marketing for 1997 and 1996. Intersegment revenues are not material. Financial data for business segments, products and services, and geographic areas are as follows: Business Segments
Regulated Southern Energy Domestic Non-Traditional Services All Electric ------------------------------------------ Other Reconciling Year Utilities International Domestic Total (Note) Eliminations Consolidated - - - - - - - ---- ------------- ----------------------------------------------------------------------------------- (in millions) 1998 - - - - - - - ----- Operating revenues $ 9,363 $1,766 $ 137 $ 1,903 $ 166 $ (29) $11,403 Depreciation and amortization 1,289 216 18 234 16 - 1,539 Interest income 150 86 61 147 57 (111) 243 Net interest charges 654 318 91 409 97 (58) 1,102 Income taxes from operations 721 (123) (4) (127) (18) (19) 557 Writedown of generating assets 34 308 - 308 - - 342 Net income from equity method subsidiaries 2 126 (5) 121 - - 123 Segment net income (loss) 1,083 23 16 39 (110) (35) 977 Total assets 24,476 9,578 2,869 12,447 1,428 (2,159) 36,192 Investments in equity method subsidiaries 10 1,363 176 1,539 - 11 1,560 Gross property additions 1,298 586 63 649 58 - 2,005 Increase in goodwill - 30 200 230 - - 230 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------
11-42 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report
Regulated Southern Energy Domestic Non-Traditional Services All Electric ---------------------------------------- Other Reconciling Year Utilities International Domestic Total (Note) Eliminations Consolidated - - - - - - - ----- --------------------------------------------------------------------------------------------------- (in millions) 1997 - - - - - - - ---- Operating revenues $ 8,688 $1,748 $2,089 $ 3,837 $ 98 $ (12) $12,611 Depreciation and amortization 1,156 179 15 194 17 - 1,367 Interest income 51 96 42 138 21 (58) 152 Net interest charges 588 289 73 362 84 (41) 993 Income taxes from operations 735 24 (11) 13 (17) (6) 725 Windfall profits tax - 148 - 148 - - 148 Net income from equity method subsidiaries 1 41 7 48 - (14) 35 Segment net income (loss) 1,105 (4) 5 1 (123) (11) 972 Total assets 24,555 9,225 1,832 11,057 1,224 (1,581) 35,255 Investments in equity method subsidiaries 10 1,023 135 1,158 - - 1,168 Gross property additions 1,080 720 1 721 58 - 1,859 Increase in goodwill - 1,649 - 1,649 - - 1,649 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Regulated Southern Energy Domestic Non-Traditional Services All Electric ---------------------------------------- Other Reconciling Year Utilities International Domestic Total (Note) Eliminations Consolidated - - - - - - - ----- --------------------------------------------------------------------------------------------------- (in millions) 1996 - - - - - - - ---- Operating revenues $ 8,639 $1,506 $177 $1,683 $ 50 $(14) $10,358 Depreciation and amortization 1,019 95 13 108 6 - 1,133 Interest income 36 15 2 17 20 (19) 54 Net interest charges 546 126 31 157 18 (2) 719 Income taxes from operations 755 16 (4) 12 (14) (6) 747 Net income from equity method subsidiaries 1 11 - 11 - (6) 6 Segment net income (loss) 1,086 88 4 92 (40) (11) 1,127 Total assets 24,899 4,320 604 4,924 450 (87) 30,186 Investments in equity method subsidiaries 8 227 - 227 - (8) 227 Gross property additions 1,033 157 8 165 31 - 1,229 Increase in goodwill - - - - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (Note) The all other category includes parent Southern Company, which does not allocate operating expenses to business segments. Also, this category includes segments below the quantitative threshold for separate disclosure. These segments include a wireless communication company and a developmental company for energy products and services. Non-traditional services exclude interest expense to parent Southern Company.
11-43 NOTES (continued) Southern Company and Subsidiary Companies 1998 Annual Report Products and Services
Revenues ------------------------------------------------------------------------------------------------------------- Regulated Domestic Southern Energy Electric Utilities Non-Traditional Energy Services ----------------------------------- ---------------------------------------------------------------------- Energy Trading Year Retail Wholesale Other Total Generation Distribution Marketing Other Total - - - - - - - ---- ------------------------------------------------------------------------------------------------------------------------- (in millions) 1998 $8,272 $896 $195 $9,363 $578 $1,273 $ - $52 $1,903 1997 7,647 886 155 8,688 513 1,282 1,982 60 3,837 1996 7,665 838 136 8,639 242 1,309 77 55 1,683 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Geographic Areas Revenues ----------------------------------------------------------------------------------------------------- International ------------------------------------------------------------- United Southeast All Year Domestic Kingdom Asia Other Total Consolidated - - - - - - - ---- ----------------------------------------------------------------------------------------------------- (in millions) 1998 $9,637 $1,273 $273 $220 $1,766 $11,403 1997 10,863 1,282 247 219 1,748 12,611 1996 8,852 1,309 - 197 1,506 10,358 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Long-Lived Assets ------------------------------------------------------------------------------------ International ------------------------------------------------------------- United Southeast All Year Domestic Kingdom Asia Other Total Consolidated - - - - - - - ---- ----------------------------------------------------------------------------------------------------- (in millions) 1998 $22,005 $2,463 $3,772 $1,856 $8,091 $30,096 1997 21,282 2,428 3,628 1,888 7,944 29,226 1996 21,190 2,473 108 999 3,580 24,770 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- 15. QUARTERLY FINANCIAL INFORMATION (UNAUDITED) Summarized quarterly financial data for 1998 and 1997 are as follows: Per Common Share --------------------------------------------------- Price Range Operating Operating Consolidated -------------------- Quarter Ended Revenues Income Net Income Earnings Dividends High Low - - - - - - - -------------- ------------------------------------ ----------------------------------------------------- (in millions) March 1998 $2,495 $437 $242 $0.35 $0.335 28 11/16 23 15/16 June 1998 2,913 490 270 0.39 0.335 29 25 1/16 September 1998 3,457 752 517 0.74 0.335 29 13/16 25 1/4 December 1998 2,538 74 (52) (0.08) 0.335 31 9/16 27 3/16 March 1997 $2,585 $397 $187 $0.28 $0.325 23 3/8 20 3/4 June 1997 2,717 429 215 0.31 0.325 22 1/4 19 7/8 September 1997 4,071 720 375 0.55 0.325 23 20 13/16 December 1997 3,238 394 195 0.28 0.325 26 1/4 22 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Southern Company's business is influenced by seasonal weather conditions. Earnings for the fourth quarter 1998 declined by $221 million, or 32 cents per share, as a result of write downs in certain generating assets as discussed in Notes 3 and 5. Earnings for the third quarter 1997 declined by $111 million, or 16 cents per share, as a result of a windfall profits tax being assessed in the United Kingdom.
11-44 SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 Southern Company and Subsidiary 1998 Annual Report
1998 1997 1996 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Operating Revenues (in millions) $11,403 $12,611 $10,358 Consolidated Net Income (in millions) $977 $972 $1,127 Basic and Diluted Earnings Per Share of Common Stock $1.40 $1.42 $1.68 Cash Dividends Paid Per Share of Common Stock $1.34 $1.30 $1.26 Return on Average Common Equity (percent) 10.04 10.30 12.53 Total Assets (in millions) $36,192 $35,255 $30,230 Gross Property Additions (in millions) $2,005 $1,859 $1,229 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Capitalization (in millions): Common stock equity $ 9,797 $ 9,647 $ 9,216 Preferred stock and securities 2,548 2,237 1,402 Long-term debt 10,472 10,274 7,938 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Total excluding amounts due within one year $22,817 $22,158 $18,556 ================================================================================================================= Capitalization Ratios (percent): Common stock equity 42.9 43.5 49.7 Preferred stock and securities 11.2 10.1 7.6 Long-term debt 45.9 46.4 42.7 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Total excluding amounts due within one year 100.0 100.0 100.0 ================================================================================================================= Other Common Stock Data: Book value per share (year-end) $14.04 $13.91 $13.61 Market price per share: High 31 9/16 26 1/4 25 7/8 Low 23 15/16 19 7/8 21 1/8 Close 29 1/16 25 7/8 22 5/8 Market-to-book ratio (year-end) (percent) 207.0 186.0 166.2 Price-earnings ratio (year-end) (times) 20.8 18.2 13.5 Dividends paid (in millions) $933 $889 $846 Dividend yield (year-end) (percent) 4.6 5.0 5.6 Dividend payout ratio (percent) 95.6 91.5 75.1 Cash coverage of dividends (year-end) (times) 3.2 2.8 2.9 Proceeds from sales of stock (in millions) $234 $360 $171 Shares outstanding (in thousands): Average 696,944 685,033 672,590 Year-end 697,805 693,423 677,036 Stockholders of record (year-end) 187,053 200,508 215,246 - - - - - - - ----------------------------------------------------------------------------------------------------------------- First Mortgage Bonds (in millions): Issued $ - $- $85 Retired 1,487 168 426 Preferred Stock and Capital and Preferred Securities (in millions): Issued $635 $1,321 $322 Retired 239 660 179 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Traditional Core Business Customers (year-end) (in thousands): Residential 3,277 3,220 3,157 Commercial 497 479 464 Industrial 15 16 17 Other 5 5 5 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Total 3,794 3,720 3,643 ================================================================================================================= Employees (year-end): Traditional core business 25,206 24,682 25,034 Southern Energy 6,642 5,620 3,743 - - - - - - - ----------------------------------------------------------------------------------------------------------------- Total 31,848 30,302 28,777 =================================================================================================================
11-45 SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 (continued) Southern Company and Subsidiary Companies 1998 Annual Report
1995 1994 1993 1992 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in millions) $9,180 $8,297 $8,489 $8,073 Consolidated Net Income (in millions) $1,103 $989 $1,002 $953 Basic and Diluted Earnings Per Share of Common Stock $1.66 $1.52 $1.57 $1.51 Cash Dividends Paid Per Share of Common Stock $1.22 $1.18 $1.14 $1.10 Return on Average Common Equity (percent) 13.01 12.47 13.43 13.42 Total Assets (in millions) $30,522 $27,042 $25,911 $20,038 Gross Property Additions (in millions) $1,401 $1,536 $1,441 $1,105 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Capitalization (in millions): Common stock equity $ 8,772 $ 8,186 $ 7,684 $ 7,234 Preferred stock and securities 1,432 1,432 1,333 1,359 Long-term debt 8,274 7,593 7,412 7,241 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total excluding amounts due within one year $18,478 $17,211 $16,429 $15,834 ============================================================================================================================== Capitalization Ratios (percent): Common stock equity 47.5 47.6 46.8 45.7 Preferred stock and securities 7.7 8.3 8.1 8.6 Long-term debt 44.8 44.1 45.1 45.7 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total excluding amounts due within one year 100.0 100.0 100.0 100.0 ============================================================================================================================== Other Common Stock Data: Book value per share (year-end) $13.10 $12.47 $11.96 $11.43 Market price per share: High 25 22 23 5/8 19 1/2 Low 19 3/8 17 18 3/8 15 1/8 Close 24 5/8 20 22 19 1/4 Market-to-book ratio (year-end) (percent) 188.0 160.4 183.9 168.4 Price-earnings ratio (year-end) (times) 14.8 13.2 14.0 12.7 Dividends paid (in millions) $811 $766 $726 $695 Dividend yield (year-end) (percent) 5.0 5.9 5.2 5.7 Dividend payout ratio (percent) 73.5 77.5 72.4 72.9 Cash coverage of dividends (year-end) (times) 2.9 2.7 2.9 2.8 Proceeds from sales of stock (in millions) $277 $279 $204 $30 Shares outstanding (in thousands): Average 665,064 649,927 637,319 631,844 Year-end 669,543 656,528 642,662 632,917 Stockholders of record (year-end) 225,739 234,927 237,105 247,378 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- First Mortgage Bonds (in millions): Issued $375 $185 $2,185 $1,815 Retired 538 241 2,178 2,575 Preferred Stock and Capital and Preferred Securities (in millions): Issued $- $100 $426 $410 Retired 1 1 516 326 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Traditional Core Business Customers (year-end) (in thousands): Residential 3,100 3,046 2,996 2,950 Commercial 450 439 427 414 Industrial 17 17 18 18 Other 5 5 4 4 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 3,572 3,507 3,445 3,386 =============================================================================================================================== Employees (year-end): Traditional core business 26,452 27,480 28,516 28,872 Southern Energy 5,430 1,400 745 213 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ 31,882 28,880 29,261 29,085 ==============================================================================================================================
11-46A
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 Southern Company and Subsidiary Companies 1998 Annual Report 1991 1990 1989 1988 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in millions) $8,050 $8,053 $7,620 $7,287 Consolidated Net Income (in millions) $876 $604 $846 $846 Basic and Diluted Earnings Per Share of Common Stock $1.39 $0.96 $1.34 $1.36 Cash Dividends Paid Per Share of Common Stock $1.07 $1.07 $1.07 $1.07 Return on Average Common Equity (percent) 12.74 8.85 12.49 13.03 Total Assets (in millions) $19,863 $19,955 $20,092 $19,731 Gross Property Additions (in millions) $1,123 $1,185 $1,346 $1,754 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Capitalization (in millions): Common stock equity $ 6,976 $ 6,783 $ 6,861 $ 6,686 Preferred stock and securities 1,333 1,358 1,400 1,465 Long-term debt 7,992 8,458 8,575 8,433 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total excluding amounts due within one year $16,301 $16,599 $16,836 $16,584 ================================================================================================================================== Capitalization Ratios (percent): Common stock equity 42.8 40.9 40.8 40.3 Preferred stock and securities 8.2 8.2 8.3 8.8 Long-term debt 49.0 50.9 50.9 50.9 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total excluding amounts due within one year 100.0 100.0 100.0 100.0 ================================================================================================================================== Other Common Stock Data: Book value per share (year-end) $11.05 $10.74 $10.87 $10.60 Market price per share: High 17 3/8 14 5/8 14 7/8 12 1/8 Low 12 7/8 11 1/2 11 10 1/8 Close 17 1/8 13 7/8 14 1/2 11 1/8 Market-to-book ratio (year-end) (percent) 155.5 129.7 134.0 105.5 Price-earnings ratio (year-end) (times) 12.4 14.6 10.9 8.2 Dividends paid (in millions) $676 $676 $675 $661 Dividend yield (year-end) (percent) 6.2 7.7 7.3 9.6 Dividend payout ratio (percent) 77.1 111.8 79.8 78.1 Cash coverage of dividends (year-end) (times) 2.5 2.8 2.6 2.3 Proceeds from sales of stock (in millions) $- $- $4 $194 Shares outstanding (in thousands): Average 631,307 631,307 631,303 622,292 Year-end 631,307 631,307 631,307 630,898 Stockholders of record (year-end) 254,568 263,046 273,751 290,725 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- First Mortgage Bonds (in millions): Issued $380 $300 $280 $335 Retired 881 146 201 273 Preferred Stock and Capital and Preferred Securities (in millions): Issued $100 $- $- $120 Retired 125 96 21 10 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Traditional Core Business Customers (year-end) (in thousands): Residential 2,903 2,865 2,824 2,781 Commercial 403 396 392 384 Industrial 18 18 18 18 Other 4 4 4 4 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total 3,328 3,283 3,238 3,187 ================================================================================================================================== Employees (year-end): Traditional core business 30,144 30,087 30,368 32,366 Southern Energy 258 176 162 157 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total 30,402 30,263 30,530 32,523 ==================================================================================================================================
11-46B
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 Southern Company and Subsidiary Companies 1998 Annual Report 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------- Operating Revenues (in millions): Residential $ 3,163 $ 2,837 $ 2,894 Commercial 2,763 2,595 2,559 Industrial 2,267 2,139 2,136 Other 79 76 76 - - - - - - - -------------------------------------------------------------------------------------------------------- Total retail 8,272 7,647 7,665 Sales for resale within service area 374 376 409 Sales for resale outside service area 522 510 429 - - - - - - - -------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 9,168 8,533 8,503 Southern Energy 1,903 3,837 1,683 Other revenues 332 241 172 - - - - - - - -------------------------------------------------------------------------------------------------------- Total $11,403 $12,611 $10,358 ======================================================================================================== Kilowatt-Hour Sales (in millions): Residential 43,503 39,217 40,117 Commercial 41,737 38,926 37,993 Industrial 55,331 54,196 52,798 Other 929 903 911 - - - - - - - -------------------------------------------------------------------------------------------------------- Total retail 141,500 133,242 131,819 Sales for resale within service area 9,847 9,884 10,935 Sales for resale outside service area 12,988 13,761 10,777 - - - - - - - -------------------------------------------------------------------------------------------------------- Total 164,335 156,887 153,531 ======================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.27 7.23 7.21 Commercial 6.62 6.67 6.74 Industrial 4.10 3.95 4.04 Total retail 5.85 5.74 5.81 Sales for resale 3.92 3.75 3.86 Total sales 5.58 5.44 5.54 Average Annual Kilowatt-Hour Use Per Residential Customer 13,379 12,296 12,824 Average Annual Revenue Per Residential Customer $972.89 $889.50 $925.12 Plant Nameplate Capacity Owned (year-end) (megawatts) 31,161 31,146 31,076 Maximum Peak-Hour Demand (megawatts): Winter 21,108 22,969 22,631 Summer 28,934 27,334 27,190 System Reserve Margin (at peak) (percent) 12.8 15.0 14.0 Annual Load Factor (percent) 60.0 59.4 62.3 Plant Availability (percent): Fossil-steam 85.2 88.2 86.4 Nuclear 87.8 88.8 89.7 - - - - - - - -------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 72.8 74.7 73.3 Nuclear 15.4 16.5 16.7 Hydro 3.9 4.3 4.1 Oil and gas 3.3 1.7 1.5 Purchased power 4.6 2.8 4.4 - - - - - - - -------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 ======================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 9,690 10,035 10,257 Cost of fuel per million BTU(cents) 152.89 145.81 144.02 Average cost of fuel per net kilowatt-hour generated (cents) 1.48 1.46 1.48 - - - - - - - --------------------------------------------------------------------------------------------------------
II-47
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 Southern Company and Subsidiary Companies 1998 Annual Report 1995 1994 1993 1992 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Operating Revenues (in millions): Residential $2,840 $2,560 $2,696 $2,402 Commercial 2,485 2,357 2,313 2,181 Industrial 2,206 2,162 2,200 2,126 Other 72 70 68 64 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total retail 7,603 7,149 7,277 6,773 Sales for resale within service area 399 360 447 409 Sales for resale outside service area 415 505 613 797 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 8,417 8,014 8,337 7,979 Southern Energy 643 185 54 - Other revenues 120 98 98 94 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total $9,180 $8,297 $8,489 $8,073 ===================================================================================================================== Kilowatt-Hour Sales (in millions): Residential 39,147 35,836 36,807 33,627 Commercial 35,938 34,080 32,847 31,025 Industrial 51,644 50,311 48,738 47,816 Other 863 844 814 777 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total retail 127,592 121,071 119,206 113,245 Sales for resale within service area 9,472 8,151 13,258 12,107 Sales for resale outside service area 9,143 10,769 12,445 16,632 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total 146,207 139,991 144,909 141,984 ===================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.25 7.14 7.32 7.14 Commercial 6.91 6.92 7.04 7.03 Industrial 4.27 4.30 4.51 4.45 Total retail 5.96 5.90 6.10 5.98 Sales for resale 4.38 4.57 4.12 4.20 Total sales 5.76 5.72 5.75 5.62 Average Annual Kilowatt-Hour Use Per Residential Customer 12,722 11,851 12,378 11,490 Average Annual Revenue Per Residential Customer $922.83 $846.48 $906.60 $820.67 Plant Nameplate Capacity Owned (year-end) (megawatts) 30,733 29,932 29,513 29,830 Maximum Peak-Hour Demand (megawatts): Winter 21,422 22,254 19,432 19,121 Summer 27,420 24,546 25,937 24,146 System Reserve Margin (at peak) (percent) 9.4 19.3 13.2 14.3 Annual Load Factor (percent) 59.5 63.5 59.4 60.3 Plant Availability (percent): Fossil-steam 86.7 85.2 87.9 88.6 Nuclear 88.3 89.8 85.9 85.2 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 72.5 70.8 73.0 71.7 Nuclear 16.4 17.9 16.3 16.2 Hydro 4.1 4.7 3.9 4.6 Oil and gas 1.7 0.9 0.9 0.5 Purchased power 5.3 5.7 5.9 7.0 - - - - - - - --------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 ===================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,099 10,010 9,994 9,976 Cost of fuel per million BTU(cents) 151.70 155.81 166.85 162.58 Average cost of fuel per net kilowatt-hour generated (cents) 1.53 1.56 1.67 1.62 - - - - - - - ---------------------------------------------------------------------------------------------------------------------
11-48A
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 1988-1998 Southern Company and Subsidiary Companies 1998 Annual Report 1991 1990 1989 1988 - - - - - - - ------------------------------------------------------------------------------------------------------------------------ Operating Revenues (in millions): Residential $2,391 $2,342 $2,194 $2,103 Commercial 2,122 2,062 1,965 1,835 Industrial 2,088 2,085 2,011 1,945 Other 65 64 60 56 - - - - - - - ------------------------------------------------------------------------------------------------------------------------ Total retail 6,666 6,553 6,230 5,939 Sales for resale within service area 417 412 401 480 Sales for resale outside service area 884 977 928 777 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 7,967 7,942 7,559 7,196 Southern Energy - - - - Other revenues 83 111 61 91 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total $8,050 $8,053 $7,620 $7,287 ========================================================================================================================= Kilowatt-Hour Sales (in millions): Residential 33,622 33,118 31,627 31,041 Commercial 30,379 29,658 28,454 27,005 Industrial 46,050 45,974 45,022 43,675 Other 817 806 787 763 - - - - - - - ------------------------------------------------------------------------------------------------------------------------ Total retail 110,868 109,556 105,890 102,484 Sales for resale within service area 12,320 11,134 11,419 14,806 Sales for resale outside service area 19,839 24,402 24,228 15,860 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total 143,027 145,092 141,537 133,150 ========================================================================================================================= Average Revenue Per Kilowatt-Hour (cents): Residential 7.11 7.07 6.94 6.77 Commercial 6.99 6.96 6.91 6.79 Industrial 4.53 4.53 4.47 4.45 Total retail 6.01 5.98 5.88 5.80 Sales for resale 4.05 3.91 3.73 4.10 Total sales 5.57 5.47 5.34 5.40 Average Annual Kilowatt-Hour Use Per Residential Customer 11,659 11,637 11,287 11,255 Average Annual Revenue Per Residential Customer $829.18 $822.93 $782.90 $762.42 Plant Nameplate Capacity Owned (year-end) (megawatts) 29,915 29,532 29,532 27,552 Maximum Peak-Hour Demand (megawatts): Winter 19,166 17,629 20,772 18,685 Summer 25,261 25,981 24,399 23,641 System Reserve Margin (at peak) (percent) 16.5 14.0 21.0 15.0 Annual Load Factor (percent) 58.3 56.6 58.6 59.8 Plant Availability (percent): Fossil-steam 91.3 91.9 92.2 91.3 Nuclear 83.4 83.0 87.0 78.4 - - - - - - - ------------------------------------------------------------------------------------------------------------------------ Source of Energy Supply (percent): Coal 72.6 72.1 71.5 77.7 Nuclear 16.2 15.6 15.7 14.5 Hydro 4.4 4.4 5.2 2.3 Oil and gas 0.6 1.3 1.1 0.7 Purchased power 6.2 6.6 6.5 4.8 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 ======================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,022 10,065 10,086 10,094 Cost of fuel per million BTU(cents) 168.28 172.81 171.00 170.36 Average cost of fuel per net kilowatt-hour generated (cents) 1.69 1.74 1.72 1.72 - - - - - - - ------------------------------------------------------------------------------------------------------------------------
11-48B ALABAMA POWER COMPANY FINANCIAL SECTION II-49 MANAGEMENT'S REPORT Alabama Power Company 1998 Annual Report The management of Alabama Power Company has prepared -- and is responsible for - - - - - - - -- the financial statements and related information included in this report. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances and necessarily include amounts that are based on the best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that the books and records reflect only authorized transactions of the Company. Limitations exist in any system of internal controls, however, based on a recognition that the cost of the system should not exceed its benefits. The Company believes its system of internal accounting controls maintains an appropriate cost/benefit relationship. The Company's system of internal accounting controls is evaluated on an ongoing basis by the Company's internal audit staff. The Company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, composed of directors who are not employees, provides a broad overview of management's financial reporting and control functions. Periodically, this committee meets with management, the internal auditors and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal controls, and financial reporting matters. The internal auditors and independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the Company's operations are conducted according to a high standard of business ethics. In management's opinion, the financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of Alabama Power Company in conformity with generally accepted accounting principles. /s/ Elmer B. Harris Elmer B. Harris President and Chief Executive Officer /s/ William B. Hutchins, III William B. Hutchins, III Executive Vice President, Chief Financial Officer, and Treasurer February 10, 1999 II-50 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Alabama Power Company: We have audited the accompanying balance sheets and statements of capitalization of Alabama Power Company (an Alabama corporation and a wholly owned subsidiary of Southern Company) as of December 31, 1998 and 1997, and the related statements of income, retained earnings, paid-in capital, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates ade by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements (pages II-61 through II-79) referred to above present fairly, in all material respects, the financial position of Alabama Power Company as of December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Arthur Andersen LLP Birmingham, Alabama February 10, 1999 II-51 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Alabama Power Company 1998 Annual Report RESULTS OF OPERATIONS Earnings Alabama Power Company's 1998 net income after dividends on preferred stock was $377 million, representing a $1.3 million (0.3 percent) increase from the prior year. This improvement can be attributed primarily to increased retail energy sales as a result of hot weather in the second quarter of 1998, compared to very mild weather for the same period in 1997 and a strong economy in the Company's service territory. However, earnings were offset by an increase in non-fuel operation and maintenance expenses and an increase in the amortization of debt discount, premium, and expense, net pursuant to an Alabama Public Service Commission (APSC) order. See Note 3 to the financial statements under "Retail Rate Adjustment Procedures" for additional details. In 1997, earnings were $376 million, representing a 1.2 percent increase from the prior year. This increase was due to lower non-fuel related operating expenses. Despite the mild weather experienced during 1997, retail kilowatt-hour (KWH) sales increased approximately 2 percent. However, the expected net income effect was offset by the effect of reductions in certain industrial and commercial prices. The return on average common equity for 1998 was 13.63 percent compared to 13.76 percent in 1997, and 13.75 percent in 1996. Revenues Operating revenues for 1998 were $3.4 billion, reflecting a 7.5 percent increase from 1997. The following table summarizes the principal factors that affected operating revenues for the past three years: Increase (Decrease) From Prior Year ----------------------------------------- 1998 1997 1996 ----------------------------------------- (in thousands) Retail -- Growth and price change $ 75,642 $ 33,813 $ 42,385 Weather 55,282 (22,973) (29,660) Fuel cost recovery and other 138,944 31,353 (30,846) - - - - - - - ------------------------------------------------------------------- Total retail 269,868 42,193 (18,121) ------------------------------------------------------------------ Sales for resale -- Non-affiliates 17,950 39,354 21,529 Affiliates (58,233) (54,825) 88,890 ------------------------------------------------------------------ Total sales for resale (40,283) (15,471) 110,419 Other operating revenues 7,677 1,614 3,703 - - - - - - - ------------------------------------------------------------------- Total operating revenues $237,262 $ 28,336 $ 96,001 ---------------------------------------------------------------- Percent change 7.5% 0.9% 3.2% =================================================================== Retail revenues of $2.8 billion in 1998 increased $270 million (10.7 percent) from the prior year, compared with an increase of $42 million (1.7 percent) in 1997. The predominant factors causing the rise in revenues in 1998 were the positive impact of weather on energy sales, continued growth throughout the state, and increased fuel revenues. Fuel revenues were higher in the current year due to higher fuel costs and an increase in purchased power. Retail revenues in 1997 increased $42 million (1.7 percent) over 1996. The primary reason for this increase was an increase in fuel revenues due to slightly higher generation and higher fuel costs in 1997 as compared to 1996. Fuel revenues generally represent the direct recovery of fuel expense, including the fuel component of purchased energy, and therefore have no effect on net income. II-52 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report Revenues from sales to utilities outside the service area under long-term contracts consist of capacity and energy components. Capacity revenues reflect the recovery of fixed costs and a return on investment under the contracts. Energy is generally sold at variable cost. These capacity and energy components were: 1998 1997 1996 ------------------------------------------- (in thousands) Capacity $141,814 $136,248 $150,797 Energy 118,252 134,498 107,996 ------------------------------------------------------------ Total $260,066 $270,746 $258,793 ============================================================= Capacity revenues from non-affiliates increased 4.1 percent in 1998 compared to the prior year. Capacity revenues from non-affiliates in 1997 decreased 9.6 percent compared to 1996 primarily due to a one-time unit power sales adjustment in 1997. Revenues from sales to affiliated companies within the Southern electric system, as well as purchases of energy, will vary from year to year depending on demand and the availability and cost of generating resources at each company. These transactions do not have a significant impact on earnings. KWH sales for 1998 and the percent change by year were as follows: KWH Percent Change ------------------------------------------- 1998 1998 1997 1996 ------------------------------------------- (millions) Residential 15,795 10.2% (1.8)% 1.5% Commercial* 11,905 5.1 3.9 8.6 Industrial* 21,585 4.2 3.6 0.7 Other 196 8.3 (6.3) 3.1 ----------- Total retail 49,481 6.2 1.9 2.7 Sales for resale - Non-affiliates 11,841 (3.2) 29.9 18.0 Affiliates 5,976 (33.5) (12.6) 53.5 ----------- Total 67,298 (0.9)% 3.7% 10.5% ================================================================== *The KWH sales for 1996 reflect a reclassification of approximately 200 customers from industrial to commercial, which resulted in a shift of 473 million KWH. Absent the reclassification, the percentage change in KWH sales for commercial and industrial would have been 3.9% and 3.1%, respectively. The increases in 1998 and 1997 retail energy sales were primarily due to the strength of business and economic conditions in the Company's service area. In 1998, residential energy sales experienced a 10.2 percent increase over the prior year primarily as a result of hot weather in the second quarter, compared to very mild weather in the second quarter of 1997. Assuming normal weather, sales to retail customers are projected to grow approximately 2.3 percent annually on average during 1999 through 2003. Expenses Total operating expenses of $2.7 billion for 1998 were up $207 million or 8.2 percent compared with 1997. This increase was mainly due to a $107 million increase in purchased power expenses, accompanied by a $58 million increase in maintenance expense. Total operating expenses of $2.5 billion for 1997 were up $18 million or 0.7 percent compared with 1996. This increase was primarily due to a $19 million increase in fuel costs and a $10 million increase in epreciation and amortization expense. These increases were somewhat offset by a $16 million decrease in maintenance expenses. Fuel costs constitute the single largest expense for the Company. The mix of fuel sources for generation of electricity is determined primarily by system load, the unit cost of fuel consumed, and the availability of hydro and nuclear generating units. The amount and sources of generation and the average cost of fuel per net KWH generated were as follows: -------------------------- 1998 1997 1996 -------------------------- Total generation (billions of KWHs) 63 65 65 Sources of generation (percent) -- Coal 72 72 72 Nuclear 18 20 20 Hydro 8 8 8 Oil & Gas 2 * * Average cost of fuel per net KWH generated (cents) -- 1.54 1.49 1.46 ============================================================== * Not meaningful because of minimal generation from fuel source. II-53 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report Total fuel and purchased power costs of $1.1 billion in 1998 increased $111 million (11 percent) over 1997 primarily due to lower levels of nuclear and hydro generation, which were replaced by the use of peaking units and purchased power. Fuel and purchased power costs in 1997 increased $27 million (3 percent) over 1996 due primarily to slightly higher generation and fuel costs in 1997. Purchased power consists primarily of purchases from the affiliates of the Southern electric system. Purchased power transactions among the Company and its affiliates will vary from period to period depending on demand, the availability, and the variable production cost of generating resources at each company. Total KWH purchases increased 24.5 percent from the prior year. The 23.8 percent increase in maintenance expense in 1998 as compared to 1997 is attributable to (i) an increase in the maintenance of overhead lines, (ii) the write-off of obsolete steam and nuclear generating plant inventory, and (iii) additional accruals to partially replenish the natural disaster reserve. The 6.1 percent decrease in maintenance expenses in 1997 is attributable primarily to a decrease in distribution expenses. Depreciation and amortization expense increased 2.6 percent in 1998 and 3.2 percent in 1997. These increases reflect additions to utility plant. Total net interest and other charges increased $55.7 million (22 percent) in 1998. This increase results primarily from an increase in the amortization of debt discount, premium, and expense, net pursuant to an APSC order. See Note 3 to the financial statements under "Retail Rate Adjustment Procedures" for additional details. Total net interest and other charges increased $25.4 million (11.2 percent) in 1997 primarily due to an increase in company obligated mandatorily redeemable preferred securities outstanding. This increase was offset by a $12 million (45.2 percent) decrease in dividends on preferred stock. Effects of Inflation The Company is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the Company is recovering its costs of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on the Company because of the large investment in utility plants with long economic life. Conventional accounting for historical cost does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations, such as long-term debt and preferred securities. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings potential. The level of future earnings depends on numerous factors ranging from energy sales growth to a less regulated more competitive environment. The Company currently operates as a vertically integrated utility providing electricity to customers within its traditional service area located in the state of Alabama. Prices for electricity provided by the Company to retail customers are set by the APSC under cost-based regulatory principles. Future earnings in the near term will depend upon growth in electric sales, which are subject to a number of factors. Traditionally, these factors have included weather, competition, changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, and the rate of economic growth in the Company's service area. The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Energy Act allows independent power producers (IPPs) to access a utility's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for a utility's large industrial and commercial customers and sell excess energy generation to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. The Company is aggressively working to maintain and expand its share of wholesale business in the Southeastern power markets. II-54 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While various restructuring and competition initiatives have been or are being discussed in Alabama, Florida, Georgia, and Mississippi, none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. The inability of the Company to recover its investments, including the regulatory assets described in Note 1 to the financial statements, could have a material adverse effect on the financial condition of the Company. The Company is attempting to minimize or reduce stranded cost exposure. Continuing to be a low-cost producer could provide opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless the Company remains a low-cost producer and provides quality service, the Company's retail energy sales growth could be limited, and this could significantly erode earnings. Rates to retail customers served by the Company are regulated by the APSC. Rates for the Company can be adjusted periodically within certain limitations based on earned retail rate of return compared with an allowed return. In June 1995, the APSC issued an order granting the Company's request for gradual adjustments to move toward parity among customer classes. This order also calls for a moratorium on any periodic retail rate increases (but not decreases) until 2001. In December 1995, the APSC issued an order authorizing the Company to reduce balance sheet items -- such as plant and deferred charges -- at any time the Company's actual base rate revenues exceed the budgeted revenues. In April 1997, the APSC issued an additional order authorizing the Company to reduce balance sheet asset items. This order authorizes the reduction of such items up to an amount equal to five times the total estimated annual revenue reduction resulting from future rate reductions initiated by the Company. See Note 3 to the financial statements for information about this and other matters. The Company is involved in various matters being litigated. See Note 3 to the financial statements for information regarding material issues that could possibly affect future earnings. Compliance costs related to current and future environmental laws and regulations could affect earnings if such costs are not fully recovered. The Clean Air Act and other important environmental items are discussed later under "Environmental Matters." The staff of the Securities and Exchange Commission has questioned certain of the current accounting practices of the electric utility industry -- including the Company -- regarding the recognition, measurement, and classification in the financial statements of decommissioning costs for nuclear generating facilities. In response to these questions, the Financial Accounting Standards Board (FASB) has decided to review the accounting for liabilities related to the retirement of long-lived assets, including nuclear decommissioning. If the FASB issues new accounting rules, the estimated costs of retiring the Company's nuclear and other facilities may be required to be recorded as liabilities in the Balance Sheets. Also, the annual provisions for such costs could change. Because of the Company's current ability to recover asset retirement costs through rates, these changes would not have a significant adverse effect on results of operations. See Note 1 to the financial statements under "Depreciation and Nuclear Decommissioning" for additional information. The Company is subject to the provisions of FASB Statement No. 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of the Company's operations is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. II-55 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard-coded into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space, was used until the mid-1990s. Unless corrected before the Year 2000, affected software systems and devices containing a chip or microprocessor with date and time functions could incorrectly process dates or the systems may cease to function. The Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. The Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year 2000 and beyond. Critical systems include, but are not limited to, reactor control systems, safe shutdown systems, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status The Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated what it believes to be adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. The Company's Year 2000 program was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in this phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices, and applications into the Year 2000. The Southern Company has completed more than 70 percent of the activities contained in its work plan. The percentage of completion and projected completion by function are as follows: - - - - - - - ------------------------------------------------------------------------------ Work Plan ------------------------------------------------------ Remediation Project Inventory Assessment Testing Completion - - - - - - - ------------------------------------------------------------------------------ Generation 100% 100% 70% 6/99 - - - - - - - ------------------------------------------------------------------------------ Energy Management 100 100 90 6/99 - - - - - - - ------------------------------------------------------------------------------ Transmission and Distribution 100 100 100 1/99 - - - - - - - ------------------------------------------------------------------------------ Telecommunications 100 100 50 6/99 - - - - - - - ------------------------------------------------------------------------------ Corporate Applications 100 100 90 3/99 - - - - - - - ------------------------------------------------------------------------------ Year 2000 Costs Current projected total costs for Year 2000 readiness, including the Company's share of costs of Southern Nuclear Operating Company, are approximately $36 million. These costs include labor necessary to identify, test, and renovate affected devices and systems. From its inception through December 31, 1998, the Year 2000 program costs, recognized primarily as expense, amounted to $21 million. Year 2000 Risks The Company is implementing a detailed process to minimize the possibility of service interruptions related to the Year 2000. The Company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operation. The Company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruptions in service that may occur within the service territory to be isolated and short in duration. The Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the service loss of any single bulk transmission II-56 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report element in its service territory. The Company has followed a proven methodology for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, the Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council-coordinated national drills during 1999. The Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to the Company's operations. Among such critical third parties are fuel, transportation, telecommunications, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to the Company are being developed. There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their Year 2000 issues. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the Company is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, the Company is drawing on that experience to make risk assessments and is developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. The Company is identifying critical operational locations, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the service territory isolated and short in duration. Exposure to Market Risk Due to cost-based rate regulation, the Company has limited exposure to market volatility in interest rates and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the Company enters into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statement as incurred. At December 31, 1998, exposure from these activities was not material to the Company's financial position, results of operations, or cash flows. Also, based on the Company's overall interest rate exposure at December 31, 1998, a near-term 100 basis point change in interest rates would not materially affect the financial statements. New Accounting Standards The FASB has issued Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments - including certain derivative instruments embedded in other contracts - and for hedging activities. The Company has not yet quantified the impact of adopting this statement on its financial statements; however, the adoption could increase volatility in earnings. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Costs of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, with gains and losses reflected rather than revenues and purchased power. Energy trading contracts are defined as energy contracts entered into with the objective of generating profits on or from exposure to II-57 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report shifts or changes in market prices. The Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the financial statements. FINANCIAL CONDITION Overview The Company's financial condition remained stable in 1998. This stability is the continuation over recent years of growth in retail energy sales and cost control measures combined with a significant lowering of the cost of capital, achieved through the refinancing and/or redemption of higher-cost long-term debt and preferred stock. The Company had gross property additions of $610 million in 1998. The majority of funds needed for gross property additions for the last several years has been provided from operating activities, principally from earnings and non-cash charges to income such as depreciation and deferred income taxes. The Statements of Cash Flows provide additional details. Capital Structure The Company's ratio of common equity to total capitalization -- including short-term debt -- was 42.4 percent in 1998, compared with 44.7 percent in 1997, and 45.3 percent in 1996. During 1998, the Company issued $1.4 billion of senior notes, the proceeds of which were used primarily to redeem first mortgage bonds and repay short-term indebtedness. Additionally in 1998, the Company redeemed $8 million of preferred stock and issued an additional $200 million. Capital Requirements Capital expenditures are estimated to be $875 million for 1999, $653 million for 2000, and $668 million for 2001. The total is $2.2 billion for the three years. Included in these estimates are the following: the Company will replace all six steam generators at Plant Farley at a total cost of approximately $234 million. Additionally, the Company plans to construct and install 1,075 megawatts of new generating capacity and associated substation facilities at Plant Barry. The projected capital expenditures for this project amount to approximately $384 million. Actual capital costs may vary from estimates because of factors such as changes in business conditions; revised load growth projections; changes in environmental regulations; changes in the existing nuclear plant to meet new regulatory requirements; increasing costs of labor, equipment, and materials; and cost of capital. In addition, there can be no assurance that costs related to capital expenditures will be fully recovered. Other Capital Requirements In addition to the funds needed for the capital budget, approximately $270 million will be required by the end of 2000 for maturities of first mortgage bonds. Also, the Company will continue to retire higher-cost debt and preferred stock and replace these obligations with lower-cost capital if market conditions permit. Environmental Matters In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act -- the acid rain compliance provision of the law - significantly impacted the operating companies of Southern Company, including Alabama Power. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating units of Southern Company. As a result of Southern Company's compliance strategy, an additional 22 generating units were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected plants by switching to low-sulfur coal, which required some equipment upgrades. Construction expenditures for Phase I compliance totaled approximately $25 million for the Company. For Phase II sulfur dioxide compliance, the Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Also equipment to control nitrogen oxide emissions will be installed on additional system fossil-fired units as necessary to meet Phase II limits. Current II-58 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report compliance strategy for Phase II could require total estimated construction expenditures of approximately $38 million, of which $19 million remains to be spent. A significant portion of costs related to the acid rain provision of the Clean Air Act is expected to be recovered through existing ratemaking provisions. However, there can be no assurance that all Clean Air Act costs will be recovered. In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the new rules. The final rules affect 22 states including Alabama. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various other matters including: nitrogen oxide emission control strategies for ozone nonattainment areas; additional controls for hazardous air pollutant emissions; control strategies to reduce regional haze; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. The Company must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the Company could incur costs to clean up properties. The Company conducts studies to determine the extent of any required cleanup costs and has recognized in the financial statements costs to clean up known sites. Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; and the Endangered Species Act. Changes to these laws could affect many areas of the Company's operations. The full impact of any such changes cannot be determined at this time. Compliance with possible additional legislation related to global climate change, electromagnetic fields, and other environmental and health concerns could significantly affect Southern Company. The impact of new legislation -- if any -- will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for liability as the result of lawsuits alleging damages caused by electromagnetic fields. Sources of Capital The Company historically has relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for its benefit by public authorities, to meet its long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. In this regard, the Company sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness it may incur. To issue additional debt and equity securities, the Company must comply with certain earnings coverage requirements designated in its mortgage indenture and corporate charter. The Company's coverages are at a level that would permit any necessary amount of security sales at current interest and dividend rates. As required by the Nuclear Regulatory Commission and as ordered by the APSC, the Company has established external trust funds for nuclear decommissioning costs. In 1994, the Company also established an external trust fund for postretirement benefits as ordered by the APSC. The cumulative effect of funding these items over a long period will diminish internally funded capital and may require capital from other sources. For additional information concerning nuclear decommissioning costs, see Note 1 to the financial statements under "Depreciation and Nuclear Decommissioning." II-59 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Alabama Power Company 1998 Annual Report Cautionary Statement Regarding Forward-Looking Information The Company's 1998 Annual Report contains forward-looking and historical information. The Company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the Company's markets; potential business strategies -- including acquisitions or dispositions of assets or internal restructuring -- that may be pursued by Southern Company; state and federal rate regulation; Year 2000 issues; changes in or application of environmental and other laws and regulations to which the Company is subject; political, legal and economic conditions and developments; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; and other factors discussed in the reports--including Form 10-K--filed from time to time by the Company with the Securities and Exchange Commission. II-60 STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Alabama Power Company 1998 Annual Report
================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Revenues: Revenues (Notes 1, 3, and 7) $ 3,282,811 $ 2,987,316 $ 2,904,155 Revenues from affiliates 103,562 161,795 216,620 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total operating revenues 3,386,373 3,149,111 3,120,775 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation -- Fuel 900,309 896,014 877,076 Purchased power from non-affiliates 92,998 41,795 36,813 Purchased power from affiliates 150,897 95,538 91,500 Other 527,954 510,203 505,884 Maintenance 300,383 242,691 258,482 Depreciation and amortization 338,822 330,377 320,102 Taxes other than income taxes 193,049 185,062 186,172 Federal and state income taxes (Note 8) 224,922 220,228 228,108 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total operating expenses 2,729,334 2,521,908 2,504,137 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Operating Income 657,039 627,203 616,638 Other Income (Expense): Allowance for equity funds used during construction (Note 1) 3,811 - - Equity in earnings of subsidiaries (Note 6) 5,271 5,250 4,676 Charitable foundation - - (6,800) Interest income 68,553 37,844 28,318 Other, net (40,861) (39,506) (39,878) Income taxes applicable to other income 6,347 12,351 22,400 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Income Before Interest Charges and Other 700,160 643,142 625,354 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Interest Charges and Other: Interest on long-term debt 192,426 167,172 169,390 Allowance for debt funds used during construction (Note 1) (4,664) (4,787) (6,480) Interest on interim obligations 11,012 22,787 20,617 Amortization of debt discount, premium, and expense, net (Note 3) 42,494 9,645 9,508 Other interest charges 44,672 36,037 27,510 Distributions on preferred securities of Alabama Power Capital Trust I & II (Note 9) 22,354 21,763 6,717 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Interest charges and other, net 308,294 252,617 227,262 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net Income 391,866 390,525 398,092 Dividends on Preferred Stock 14,643 14,586 26,602 ------------------------------------------------------------------------------------------------------------------------------- Net Income After Dividends on Preferred Stock $ 377,223 $ 375,939 $ 371,490 ================================================================================================================================ The accompanying notes are an integral part of these statements. II-61
STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Alabama Power Company 1998 Annual Report
=============================================================================================================================== 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Activities: Net income $ 391,866 $ 390,525 $ 398,092 Adjustments to reconcile net income to net cash provided from operating activities-- Depreciation and amortization 425,167 394,572 383,438 Deferred income taxes and investment tax credits, net 79,430 (12,429) 16,585 Allowance for equity funds used during construction (3,811) - - Other, net (62,928) (11,353) 6,247 Changes in certain current assets and liabilities -- Receivables, net 49,747 (30,268) 3,958 Inventories 2,880 13,709 36,234 Payables 26,583 (9,745) 1,006 Taxes accrued 4,570 6,191 (5,756) Energy cost recovery, retail (95,427) 7,108 25,771 Other (14,373) 7,127 8,205 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net cash provided from operating activities 803,704 755,437 873,780 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Investing Activities: Gross property additions (610,132) (451,167) (425,024) Other (52,940) (51,791) (61,119) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net cash used for investing activities (663,072) (502,958) (486,143) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Financing Activities: Proceeds: Company obligated mandatorily redeemable preferred securities - 200,000 97,000 Capital contributions 30,000 - - Preferred stock 200,000 - - Other long-term debt 1,462,990 258,800 21,000 Retirements: Preferred stock (88,000) (184,888) - First mortgage bonds (771,108) (74,951) (83,797) Other long-term debt (107,776) (951) (21,907) Interim obligations, net (306,882) (57,971) (25,163) Payment of preferred stock dividends (15,596) (22,524) (26,665) Payment of common stock dividends (367,100) (339,600) (347,500) Miscellaneous (66,869) (16,024) (3,634) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net cash used for financing activities (30,341) (238,109) (390,666) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net Change in Cash and Cash Equivalents 110,291 14,370 (3,029) Cash and Cash Equivalents at Beginning of Year 23,957 9,587 12,616 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Cash and Cash Equivalents at End of Year $ 134,248 $ 23,957 $ 9,587 =============================================================================================================================== Supplemental Cash Flow Information: Cash paid during the year for -- Interest (net of amount capitalized) $ 234,360 $ 209,919 $ 193,871 Income taxes (net of refunds) 188,942 207,653 195,214 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- ( ) Denotes use of cash. The accompanying notes are an integral part of these statements.
II-62 BALANCE SHEETS At December 31, 1998 and 1997 Alabama Power Company 1998 Annual Report
================================================================================================================================ ASSETS 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Utility Plant: Plant in service, at original cost (Note 1) $11,352,838 $11,070,323 Less accumulated provision for depreciation 4,666,513 4,384,180 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- 6,686,325 6,686,143 Nuclear fuel, at amortized cost 95,575 103,272 Construction work in progress 525,359 311,223 ------------------------------------------------------------------------------------------------------------------------------- Total 7,307,259 7,100,638 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Other Property and Investments: Equity investments in subsidiaries (Note 6) 34,298 34,373 Nuclear decommissioning trusts, at market (Note 1) 232,183 193,008 Miscellaneous 12,915 12,832 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 279,396 240,213 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 134,248 23,957 Receivables- Customer accounts receivable 343,630 368,255 Other accounts and notes receivable 32,394 28,921 Affiliated companies 39,981 50,353 Accumulated provision for uncollectible accounts (1,855) (2,272) Refundable income taxes 52,117 - Fossil fuel stock, at average cost 83,238 74,186 Materials and supplies, at average cost 149,669 161,601 Prepayments 17,160 20,453 Vacation pay deferred 28,390 28,783 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 878,972 754,237 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Charges and Other Assets: Deferred charges related to income taxes (Note 8) 362,953 384,549 Debt expense, being amortized 8,602 7,276 Premium on reacquired debt, being amortized 83,440 81,417 Prepaid pension costs 169,393 130,733 Department of Energy assessments (Note 1) 31,088 34,416 Miscellaneous 104,595 79,388 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 760,071 717,779 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total Assets $9,225,698 $8,812,867 ================================================================================================================================ The accompanying notes are an integral part of these balance sheets.
II-63
BALANCE SHEETS At December 31, 1998 and 1997 Alabama Power Company 1998 Annual Report ================================================================================================================================ CAPITALIZATION AND LIABILITIES 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Capitalization (See accompanying statements): Common stock equity $2,784,067 $2,750,569 Preferred stock 317,512 255,512 Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding Company Junior Subordinated Notes (Note 9) 297,000 297,000 Long-term debt 2,646,566 2,473,202 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 6,045,145 5,776,283 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Preferred stock due within one year (Note 11) 50,000 - Long-term debt due within one year (Note 11) 471,209 75,336 Commercial paper - 306,882 Accounts payable- Affiliated companies 79,844 79,822 Other 188,074 159,146 Customer deposits 29,235 34,968 Taxes accrued- Federal and state income 82,219 21,177 Other 17,559 15,309 Interest accrued 38,166 50,722 Vacation pay accrued 28,390 28,783 Miscellaneous 79,095 103,602 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 1,063,791 875,747 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 8) 1,202,971 1,192,265 Accumulated deferred investment tax credits 271,611 282,873 Prepaid capacity revenues, net (Note 7) 96,080 109,982 Department of Energy assessments (Note 1) 27,202 30,592 Deferred credits related to income taxes (Note 8) 315,735 327,328 Natural disaster reserve (Note 1) 19,385 22,416 Miscellaneous 183,778 195,381 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 2,116,762 2,160,837 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 1 through 7, and 12) Total Capitalization and Liabilities $9,225,698 $8,812,867 ================================================================================================================================= The accompanying notes are an integral part of these balance sheets.
II-64
STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Alabama Power Company 1998 Annual Report ==================================================================================================================================== 1998 1997 1998 1997 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (in thousands) (percent of total) Common Stock Equity: Common stock, par value $40 per share -- Authorized -- 6,000,000 shares Outstanding -- 5,608,955 shares in 1998 and 1997 $ 224,358 $ 224,358 Paid-in capital 1,334,645 1,304,645 Premium on preferred stock 99 99 Retained earnings (Note 13) 1,224,965 1,221,467 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Total common stock equity 2,784,067 2,750,569 46.1 % 47.6 % - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Cumulative Preferred Stock: $1 par value -- Authorized -- 27,500,000 shares Outstanding -- 1998: 10,500,200 shares -- 1997: 6,020,200 shares $25 stated capital -- 5.20% 162,000 - 5.83% 38,000 - 6.40% - 50,000 6.80% - 38,000 Adjustable rate 4.00% - at January 1, 1999 50,000 50,000 $100 stated capital -- Auction rate - 4.30% at January 1, 1999 50,000 50,000 $100,000 stated capital -- Auction rate - 4.08% at January 1, 1999 20,000 20,000 $100 par value -- Authorized -- 3,850,000 shares Outstanding -- 475,115 shares in 1998 and 1997 4.20% to 4.52% 18,512 18,512 4.60% to 4.92% 29,000 29,000 - - - - - - - ------------------------------------------------------------------------------------------------------------- Total cumulative preferred stock (annual dividend requirement -- $17,767,000) 367,512 255,512 Less amount due within one year (Note 11) 50,000 - - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Cumulative preferred stock excluding amount due within one year 317,512 255,512 5.2 4.4 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Company Obligated Mandatorily Redeemable Preferred Securities (Note 9): $25 liquidation value -- 7.375% 97,000 97,000 $25 liquidation value -- 7.60% 200,000 200,000 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total (annual distribution requirement -- $22,354,000) 297,000 297,000 4.9 5.2 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Long-Term Debt: First mortgage bonds -- Maturity Interest Rates February 1, 1998 5 1/2% - 50,000 August 1, 1999 6 3/8% 170,000 170,000 March 1, 2000 6% 100,000 100,000 August 1, 2002 6.85% - 100,000 January 1, 2003 7% 125,000 125,000 February 1, 2003 6 3/4% 175,000 175,000 August 1, 2007 7 1/4% - 175,000 2023 through 2024 7.30% to 9% 500,000 946,108 - - - - - - - ------------------------------------------------------------------------------------------------------------- Total first mortgage bonds 1,070,000 1,841,108 - - - - - - - ------------------------------------------------------------------------------------------------------------- Other long-term debt (Note 10) -- Pollution control obligations -- Collateralized - 5.5% to 6.5% due 2023-2024 126,050 223,040 Variable rates (3.80% to 5.00% at 1/1/99) due 2015-2017 89,800 89,800
II-65
STATEMENTS OF CAPITALIZATION (continued) At December 31, 1998 and 1997 Alabama Power Company 1998 Annual Report ==================================================================================================================================== 1998 1997 1998 1997 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (in thousands) (percent of total) Pollution control obligations -- (continued) Non-collateralized - 7.25% due 2003 1,000 1,000 5.8% due 2022 - 9,800 Variable rates (4.80% to 5.33% at 1/1/99) due 2021-2028 324,290 217,500 - - - - - - - ------------------------------------------------------------------------------------------------------------- Total pollution control obligations 541,140 541,140 - - - - - - - ------------------------------------------------------------------------------------------------------------- Senior notes -- Maturity Interest Rates -------- -------------- November 15, 2003 5.35% 156,200 - November 1, 2005 5.49% 225,000 - October 1, 2008 5 3/8% 160,000 - September 30, 2010 6.25% 100,000 - September 30, 2018 6.375% 100,000 - September 30, 2018 6.5% 225,000 - December 1, 2047 7 1/8% 193,800 193,800 December 31, 2047 7% 200,000 - March 31, 2048 7% 190,000 - - - - - - - - ------------------------------------------------------------------------------------------------------------- Total senior notes 1,550,000 193,800 - - - - - - - ------------------------------------------------------------------------------------------------------------- Capitalized lease obligations 6,119 7,105 Unamortized debt premium (discount), net (49,484) (34,615) - - - - - - - ------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement -- $204,003,000) 3,117,775 2,548,538 Less amount due within one year (Note 11) 471,209 75,336 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 2,646,566 2,473,202 43.8 42.8 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total Capitalization $ 6,045,145 $ 5,776,283 100.0 % 100.0 % ================================================================================================================================== The accompanying notes are an integral part of these statements.
II-66
STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 Alabama Power Company 1998 Annual Report ================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Year $ 1,221,467 $ 1,185,128 $ 1,161,225 Net income after dividends on preferred stock 377,223 375,939 371,490 Cash dividends on common stock (367,100) (339,600) (347,500) Preferred stock transactions, net (6,137) (45) (7) Other adjustments to retained earnings (488) 45 (80) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Balance at End of Year (Note 13) $ 1,224,965 $ 1,221,467 $ 1,185,128 ================================================================================================================================ STATEMENTS OF PAID-IN CAPITAL For the Years Ended December 31, 1998, 1997, and 1996 Alabama Power Company 1998 Annual Report ===============================================================================================================================- 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Period $ 1,304,645 $ 1,304,645 $ 1,304,645 Capital contributions from parent company 30,000 - - - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Balance at End of Period $ 1,334,645 $ 1,304,645 $ 1,304,645 ================================================================================================================================ The accompanying notes are an integral part of these statements. II-67
NOTES TO FINANCIAL STATEMENTS Alabama Power Company 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Alabama Power Company (the Company) is a wholly owned subsidiary of Southern Company, which is the parent company of five operating companies, Southern Company Services (SCS), a system service company, Southern Communications Services (Southern LINC), Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), Southern Company Energy Solutions, and other direct and indirect subsidiaries. The operating companies (Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company) provide electric service in four southeastern states. Contracts among the companies--dealing with jointly-owned generating facilities, interconnecting transmission lines, and the exchange of electric power--are regulated by the Federal Energy Regulatory Commission (FERC) or the Securities and Exchange Commission (SEC). The system service company provides, at cost, specialized services to Southern Company and subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Southern Energy designs, builds, owns and operates power production and delivery facilities and provides a broad range of energy related services in the United States and international markets. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Company Energy Solutions develops new business opportunities related to energy products and services. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both Southern Company and its subsidiaries are subject to the regulatory provisions of the PUHCA. The Company is also subject to regulation by the FERC and the Alabama Public Service Commission (APSC). The Company follows generally accepted accounting principles (GAAP) and complies with the accounting policies and practices prescribed by the respective regulatory commissions. The preparation of financial statements in conformity with GAAP requires the use of estimates, and the actual results may differ from those estimates. Certain prior years' data presented in the financial statements have been reclassified to conform with current year presentation. Regulatory Assets and Liabilities The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the Company associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Balance Sheets at December 31 relate to the following: 1998 1997 ----------------------- (in thousands) Deferred income taxes $ 362,953 $ 384,549 Deferred income tax credits (315,735) (327,328) Premium on reacquired debt 83,440 81,417 Department of Energy assessments 31,088 34,416 Vacation pay 28,390 28,783 Natural disaster reserve (19,385) (22,416) Work force reduction costs 4,082 19,316 Other, net 46,672 59,726 - - - - - - - ---------------------------------------------------------------- Total $ 221,505 $ 258,463 ================================================================ In the event that a portion of the Company's operations is no longer subject to the provisions of Statemen No. 71, the Company would be required to write off related net regulatory assets and liabilities that are not specifically recoverable through regulated rates. In addition, the Company would be required to determine if any impairment to other assets exists, including plant, and write down the assets, if impaired, to their fair value. II-68 NOTES (continued) Alabama Power Company 1998 Annual Report Revenues and Fuel Costs The Company currently operates as a vertically integrated utility providing electricity to retail customers within its traditional service area located within the state of Alabama, and to wholesale customers in the southeast. Revenues by type of service were as follows: 1998 1997 1996 -------------------------------- (in millions) Retail $2,781 $2,511 $2,469 Non-affiliated wholesale 449 431 391 Other 53 45 44 - - - - - - - --------------------------------------------------------------- Total $3,283 $2,987 $2,904 - - - - - - - --------------------------------------------------------------- The Company accrues revenues for services rendered but unbilled at the end of each fiscal period. Fuel costs are expensed as the fuel is used. The Company's electric rates include provisions to adjust billings for fluctuations in fuel and the energy component of purchased power costs. Revenues are adjusted for differences between recoverable fuel costs and amounts actually recovered in current rates. The Company has a diversified base of customers. No single customer or industry comprises 10 percent or more of revenues. For all periods presented, uncollectible accounts continued to average less than 1 percent of revenues. Fuel expense includes the amortization of the cost of nuclear fuel and a charge, based on nuclear generation, for the permanent disposal of spent nuclear fuel. Total charges for nuclear fuel included in fuel expense amounted to $59 million in 1998, $68 million in 1997, and $64 million in 1996. The Company has a contract with the U.S. Department of Energy (DOE) that provides for the permanent disposal of spent nuclear fuel. The DOE failed to begin disposing of spent fuel in January 1998 as required by contracts, and the Company is pursuing legal remedies against the government for breach of contract. Sufficient storage capacity currently is available to permit operation into 2009 and 2013 at Plant Farley units 1 and 2, respectively. Also, the Energy Policy Act of 1992 required the establishment in 1993 of a Uranium Enrichment Decontamination and Decommissioning Fund, which is to be funded in part by a special assessment on utilities with nuclear plants. This assessment will be paid over a 15-year period, which began in 1993. This fund will be used by the DOE for the decontamination and decommissioning of its nuclear fuel enrichment facilities. The law provides that utilities will recover these payments in the same manner as any other fuel expense. The Company estimates its remaining liability at December 31, 1998, under this law to be approximately $31 million. This obligation is recognized in the accompanying Balance Sheets. Depreciation and Nuclear Decommissioning Depreciation of the original cost of depreciable utility plant in service is provided primarily by using composite straight-line rates, which approximated 3.2 percent in 1998 and 3.3 percent in both 1997 and 1996. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost -- together with the cost of removal, less salvage -- is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Depreciation expense includes an amount for the expected cost of decommissioning nuclear facilities and removal of other facilities. Nuclear Regulatory Commission (NRC) regulations require all licensees operating commercial nuclear power reactors to establish a plan for providing, with reasonable assurance, funds for decommissioning. The Company has established external trust funds to comply with the NRC's regulations. Amounts previously recorded in internal reserves are being transferred into the external trust funds over periods approved by the APSC. The NRC's minimum external funding requirements are based on a generic estimate of the cost to decommission the radioactive portions of a nuclear unit based on the size and type of reactor. The Company has filed plans with the NRC to ensure that -- over time -- the deposits and earnings of the external trust funds will provide the minimum funding amounts prescribed by the NRC. II-69 NOTES (continued) Alabama Power Company 1998 Annual Report Site study cost is the estimate to decommission the facility as of the site study year, and ultimate cost is the estimate to decommission the facility as of retirement date. The estimated costs of decommissioning -- both site study costs and ultimate costs -- at December 31, 1998, for Plant Farley were as follows: Site study basis (year) 1998 Decommissioning periods: Beginning year 2017 Completion year 2031 ------------------------------------------------------------- (in millions) Site study costs: Radiated structures $ 629 Non-radiated structures 60 -------------------------------------------------------------- Total $ 689 ============================================================= (in millions) Ultimate costs: Radiated structures $1,868 Non-radiated structures 178 ------------------------------------------------------------- Total $2,046 ============================================================= The decommissioning cost estimates are based on prompt dismantlement and removal of the plant from service. The actual decommissioning costs may vary from the above estimates because of changes in the assumed date of decommissioning, changes in NRC requirements, or changes in the assumptions used in making estimates. Annual provisions for nuclear decommissioning are based on an annuity method as approved by the APSC. The amounts expensed in 1998 and fund balance as of December 31, 1998 were: (in millions) Amount expensed in 1998 $ 18 ------------------------------------------------------------- Accumulated provisions: Balance in external trust funds $ 232 Balance in internal reserves 42 ------------------------------------------------------------- Total $ 274 ============================================================= All of the Company's decommissioning costs are approved for ratemaking. Significant assumptions include an estimated inflation rate of 4.5 percent and an estimated trust earnings rate of 7.0 percent. Income Taxes The Company uses the liability method of accounting for deferred income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. Allowance For Funds Used During Construction (AFUDC) AFUDC represents the estimated debt and equity costs of capital funds that are necessary to finance the construction of new facilities. While cash is not realized currently from such allowance, it increases the revenue requirement over the service life of the plant through a higher rate base and higher depreciation expense. The composite rate used to determine the amount of allowance was 9.0 percent in 1998 and 5.8 percent in both 1997 and 1996. AFUDC, net of income tax, as a percent of net income after dividends on preferred stock was 1.8 percent in 1998, 0.8 percent in 1997 and 1.1 percent in 1996. Utility Plant Utility plant is stated at original cost. Original cost includes: materials; labor; minor items of property; appropriate administrative and general costs; payroll-related costs such as taxes, pensions, and other benefits; and the estimated cost of funds used during construction. The cost of maintenance, repairs and replacement of minor items of property is charged to maintenance expense. The cost of replacements of property (exclusive of minor items of property) is charged to utility plant. Financial Instruments The Company's only financial instruments for which the carrying amount did not approximate fair value at December 31 are as follows: Carrying Fair Amount Value ------------------------- (in millions) Long-term debt: At December 31, 1998 $3,112 $3,195 At December 31, 1997 2,541 2,638 Preferred Securities: At December 31, 1998 297 307 At December 31, 1997 297 300 -------------------------------------------------------------- II-70 NOTES (continued) Alabama Power Company 1998 Annual Report The fair value for long-term debt and preferred securities was based on either closing market prices or closing prices of comparable instruments. Cash and Cash Equivalents For purposes of the financial statements, temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. Materials and Supplies Generally, materials and supplies include the cost of transmission, distribution, and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when installed. Natural Disaster Reserve In September 1994, in response to a request by the Company, the APSC issued an order allowing the Company to establish a Natural Disaster Reserve. Regulatory treatment allows the Company to accrue $250 thousand per month, until the maximum accumulated provision of $32 million is attained. However, in December 1995, the APSC approved higher accruals to restore the reserve to its authorized level whenever the balance in the reserve declines below $22.4 million. 2. RETIREMENT BENEFITS The Company has defined benefit, trusteed, pension plans that cover substantially all employees. The Company provides certain medical care and life insurance benefits for retired employees. Substantially all these employees may become eligiblefor such benefits when they retire. The Company funds trusts to the extent deductible under federal income tax regulations or to the extent required by the APSC and FERC. In 1998, the Company adopted FASB Statement No. 132, Employers' Disclosure about Pensions and Other Postretirement Benefits. The measurement date is September 30 of each year. The weighted average rates assumed in the actuarial calculations for both the pension and postretirement benefit plans were: 1998 1997 - - - - - - - --------------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25 5.00 Long-term return on plan assets 8.50 8.50 - - - - - - - --------------------------------------------------------------- Pension Plan Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Balance at beginning of year $813 $814 Service cost 22 20 Interest cost 59 58 Benefits paid (51) (38) Actuarial (gain) loss and employee transfers 25 (41) - - - - - - - --------------------------------------------------------------- Balance at end of year $868 $813 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Balance at beginning of year $1,521 $1,334 Actual return on plan assets 9 250 Benefits paid (51) (38) Employee transfers (18) (25) - - - - - - - --------------------------------------------------------------- Balance at end of year $1,461 $1,521 =============================================================== The accrued pension costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Funded status $ 593 $ 708 Unrecognized transition obligation (30) (35) Unrecognized prior service cost 39 43 Unrecognized net actuarial gain (433) (585) - - - - - - - --------------------------------------------------------------- Prepaid asset recognized in the Balance Sheets $ 169 $ 131 =============================================================== II-71 NOTES (continued) Alabama Power Company 1998 Annual Report Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Service cost $ 22 $ 20 $ 21 Interest cost 59 58 60 Expected return on plan assets (102) (95) (93) Recognized net actuarial gain (16) (13) (9) Net amortization (2) (2) (3) - - - - - - - --------------------------------------------------------------- Net pension cost (income) $ (39) $ (32) $ (24) =============================================================== Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Balance at beginning of year $252 $242 Service cost 5 4 Interest cost 19 18 Benefits paid (12) (8) Actuarial (gain) loss and employee transfers 14 (4) - - - - - - - --------------------------------------------------------------- Balance at end of year $278 $252 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Balance at beginning of year $125 $108 Actual return on plan assets 4 16 Employer contributions 20 9 Benefits Paid (12) (8) - - - - - - - --------------------------------------------------------------- Balance at end of year $137 $125 =============================================================== The accrued postretirement costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Funded status $(141) $(127) Unrecognized transition obligation 57 61 Unrecognized net actuarial loss 22 3 Fourth quarter contributions 8 10 - - - - - - - --------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $ (54) $ (53) =============================================================== Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Service cost $ 5 $ 4 $ 5 Interest cost 18 18 17 Expected return on plan assets (9) (7) (6) Recognized net gain - - 1 Net amortization 4 4 4 - - - - - - - ------------------------------------------------------ -------- Net postretirement cost $ 18 $ 19 $ 21 =============================================================== An additional assumption used in measuring the accumulated postretirement benefit obligations was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005, and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would affect the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows: 1 Percent 1 Percent Increase Decrease - - - - - - - --------------------------------------------------------------- (in millions) Benefit obligation $ 18 $ (15) Service and interest costs 2 (1) =============================================================== Work Force Reduction Programs The Company has incurred additional costs for work force reduction programs. The costs related to these programs were $19.4 million, $33.0 million and $26.7 million for the years 1998, 1997 and 1996, respectively. In addition, certain costs of these programs were deferred and are being amortized in accordance with regulatory treatment. The unamortized balance of these costs was $4.1 million at December 31, 1998. 3. LITIGATION AND REGULATORY MATTERS Retail Rate Adjustment Procedures In November 1982, the APSC adopted rates that provide for periodic adjustments based upon the Company's earned return on end-of-period retail common equity. The rates also provide for adjustments to recognize the placing of new generating facilities in retail service. Both increases and decreases have been placed into effect since the adoption of these rates. The rate adjustment II-72 NOTES (continued) Alabama Power Company 1998 Annual Report procedures allow a return on common equity range of 13.0 percent to 14.5 percent and limit increases or decreases in rates to 4 percent in any calendar year. In June 1995, the APSC issued a rate order granting the Company's request for gradual adjustments to move toward parity among customer classes. This order also calls for a moratorium on any periodic retail rate increases (but not decreases) until July 2001. In December 1995, the APSC issued an order authorizing the Company to reduce balance sheet items -- such as plant and deferred charges -- at any time the Company's actual base rate revenues exceed the budgeted revenues. In April 1997, the APSC issued an additional order authorizing the Company to reduce balance sheet asset items. This order authorizes the reduction of such items up to an amount equal to five times the total estimated annual revenue reduction resulting from future rate reductions initiated by the Company. In 1998, the Company - in accordance with the 1995 rate order - recorded $33 million of additional amortization of premium on reacquired debt. The ratemaking procedures will remain in effect until the APSC votes to modify or discontinue them. Appliance Warranty Litigation In 1996, a class action against the Company was filed charging the Company with fraud and non-compliance with regulatory statutes relating to the offer, sale, and financing of "extended service contracts" in connection with the sale of electric appliances. The plaintiffs seek damages in an unspecified amount. The Company has offered extended service agreements to its customers since January 1984, and approximately 175,000 extended service agreements could be involved in these proceedings. The trial court has granted partial summary judgment in favor of the plaintiffs. The Company has appealed this decision to the Supreme Court of Alabama. The final outcome of this case cannot now be determined. Environmental Litigation On November 30, 1998, total judgments of nearly $53 million were entered in favor of five plaintiffs against the Company and two large textile manufacturers. The plaintiffs alleged that the manufacturers had discharged certain polluting substances into a stream that empties into Lake Martin, a hydroelectric reservoir owned by the Company, and that such discharges had reduced the value of the plaintiffs' residential lots on Lake Martin. Of the total amount of the judgments, $155 thousand was compensatory damages and the remainder was punitive damages. The damages were assessed against all three defendants jointly. Post-trial motions have been filed, and, if relief is not granted at the trial court level, the Company will appeal these judgements to the Supreme Court of Alabama. While the Company believes that these judgments should be reversed or set aside, the final outcome of this matter cannot now be determined. FERC Reviews Equity Returns On September 21, 1998, the FERC entered separate orders affirming the outcome of the administrative law judge's opinions in two proceedings in which the return on common equity component of formula rates contained in substantially all of the operating companies' wholesale power contracts was being challenged as unreasonably high. These orders resulted in no change in the wholesale power contracts that were the subject of such proceedings. The FERC also dismissed a complaint filed by three customers under long-term power sales agreements seeking to lower the equity return component in such agreements. These customers have filed applications for rehearing regarding each FERC order. In response to a requirement of the September 1998 FERC order, Southern Company filed a new equity return component on the long-term power sales contracts, to be effective January 5, 1999. The proposed equity return was lowered from 13.75 percent to 12.50 percent. If the filed equity return is approved, the estimated impact on the Company's revenues will be approximately $5 million annually. The FERC placed the new rates into effect, subject to refund. Also, this filing was consolidated with the new proceeding discussed below. On December 28, 1998, the FERC staff filed a motion asking the FERC to initiate a new proceeding regarding the equity return and other issues involving the Company's formula rate contracts. The motion was submitted pursuant to review procedures applicable to these contracts, and would be applicable to billings under such contracts on and after January 1, 1999. Tax Litigation In August 1997, Southern Company and the Internal Revenue Service (IRS) entered into a settlement agreement related to tax issues for the years 1984 through 1987. The agreement received final approval by the Joint Congressional II-73 NOTES (continued) Alabama Power Company 1998 Annual Report Committee on Taxation in June 1998 and as a result, the Company recognized interest income in 1998 of $14 million. The refund by the IRS has been made and this matter is now concluded. 4. CAPITAL BUDGET The Company's capital expenditures are currently estimated to total $875 million in 1999, $653 million in 2000, and $668 million in 2001. Included in these estimates are the following: the Company will replace all six steam generators at Plant Farley at a total cost of approximately $234 million. Additionally, the Company plans to construct and install 1,075 megawatts of new generating capacity and associated substation facilities at Plant Barry. The projected capital expenditures for this project amount to approximately $384 million. The capital budget is subject to periodic review and revision, and actual capital costs incurred may vary from the above estimates because of numerous factors. These factors include: changes in business conditions; revised load growth projections; changes in environmental regulations; changes in the existing nuclear plant to meet new regulatory requirements; increasing costs of labor, equipment, and materials; and cost of capital. In addition, significant construction will continue related to transmission and distribution facilities and the upgrading of generating plants. 5. FINANCING, INVESTMENT, AND COMMITMENTS General To the extent possible, the Company's construction program is expected to be financed primarily from internal sources. Short-term debt is often utilized and the amounts available are discussed below. The Company may issue additional long-term debt and preferred securities for debt maturities, redeeming higher-cost securities, and meeting additional capital requirements. Financing The ability of the Company to finance its capital budget depends on the amount of funds generated internally and the funds it can raise by external financing. The Company historically has relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for its benefit by public authorities, to meet its long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. In this regard, the Company sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness it may incur. In order to issue additional debt and equity securities, the Company must comply with certain earnings coverage requirements designated in its mortgage indenture and corporate charter. The most restrictive of these provisions requires, for the issuance of additional first mortgage bonds, that before-income-tax earnings, as defined, cover pro forma annual interest charges on outstanding first mortgage bonds at least twice; and for the issuance of additional preferred stock, that gross income available for interest cover pro forma annual interest charges and preferred stock dividends at least one and one-half times. The Company's coverages are at a level that would permit any necessary amount of security sales at current interest and dividend rates. Bank Credit Arrangements The Company maintains committed lines of credit in the amount of $757.7 million (including $315 million of such lines under which are dedicated to funding purchase obligations relating to variable rate pollution control bonds). Of these lines, $677.7 million expire at various times during 1999 and $80 million expires in 2003. In certain cases, such lines require payment of a commitment fee based on the unused portion of the commitment or the maintenance of compensating balances with the banks. Because the arrangements are based on an average balance, the Company does not consider any of its cash balances to be restricted as of any specific date. Moreover, the Company borrows from time to time pursuant to arrangements with banks for uncommitted lines of credit. At December 31, 1998, the Company had regulatory approval to have outstanding up to $750 million of short-term borrowings. Assets Subject to Lien The Company's mortgage, as amended and supplemented, securing the first mortgage bonds issued by the Company, constitutes a direct lien on substantially all of the Company's fixed property and franchises. II-74 NOTES (continued) Alabama Power Company 1998 Annual Report Fuel Commitments To supply a portion of the fuel requirements of its generating plants, the Company has entered into various long-term commitments for the procurement of fossil and nuclear fuel. In most cases, these contracts contain provisions for price escalations, minimum purchase levels and other financial commitments. Total estimated long-term obligations at December 31, 1998, were as follows: Year Amounts ---------------- (in millions) 1999 $ 825 2000 547 2001 497 2002 376 2003 381 2004 - 2014 2,417 - - - - - - - --------------------------------------------------------------- Total commitments $ 5,043 =============================================================== Operating Leases The Company has entered into coal rail car rental agreements with various terms and expiration dates. These expenses totaled $5.8 million in 1998, and $3.0 million each for 1997 and 1996. At December 31, 1998, estimated minimum rental commitments for noncancellable operating leases were as follows: Year Amounts ---------------- (in millions) 1999 $ 11.4 2000 9.7 2001 7.3 2002 5.9 2003 5.7 2004 - 2018 51.4 - - - - - - - --------------------------------------------------------------- Total minimum payments $ 91.4 =============================================================== 6. JOINT OWNERSHIP AGREEMENTS The Company and Georgia Power Company own equally all of the outstanding capital stock of Southern Electric Generating Company (SEGCO), which owns electric generating units with a total rated capacity of 1,020 megawatts, together with associated transmission facilities. The capacity of these units is sold equally to the Company and Georgia Power Company under a contract which, in substance, requires payments sufficient to provide for the operating expenses, taxes, interest expense and a return on equity, whether or not SEGCO has any capacity and energy available. The term of the contract extends automatically for two-year periods, subject to either party's right to cancel upon two year's notice. The Company's share of expenses totaled $74 million in 1998, $73 million in 1997 and $75 million in 1996, and is included in "Purchased power from affiliates" in the Statements of Income. In addition, the Company has guaranteed unconditionally the obligation of SEGCO under an installment sale agreement for the purchase of certain pollution control facilities at SEGCO's generating units, pursuant to which $24.5 million principal amount of pollution control revenue bonds are outstanding. Georgia Power Company has agreed to reimburse the Company for the pro rata portion of such obligation corresponding to its then proportionate ownership of stock of SEGCO if the Company is called upon to make such payment under its guaranty. At December 31, 1998, the capitalization of SEGCO consisted of $49 million of equity and $70 million of long-term debt on which the annual interest requirement is $4.1 million. SEGCO paid dividends totaling $8.7 million in 1998, $10.6 million in 1997, and $10.1 million in 1996, of which one-half of each was paid to the Company. SEGCO's net income was $7.5 million, $8.5 million, and $7.7 million for 1998, 1997 and 1996, respectively. The Company's percentage ownership and investment in jointly-owned generating plants at December 31, 1998, follows: Total Megawatt Company Facility (Type) Capacity Ownership --------------------- ------------ ------------- Greene County 500 60.00% (1) (coal) Plant Miller Units 1 and 2 1,320 91.84% (2) (coal) ================================================================ (1) Jointly owned with an affiliate, Mississippi Power Company. (2) Jointly owned with Alabama Electric Cooperative, Inc. Company Accumulated Facility Investment Depreciation --------------------- -------------- --------------- (in millions) Greene County $ 94 $ 42 Plant Miller Units 1 and 2 717 330 ---------------------------------------------------------- II-75 NOTES (continued) Alabama Power Company 1998 Annual Report 7. LONG-TERM POWER SALES AGREEMENTS General The Company and the operating affiliates of Southern Company have entered into long-term contractual agreements for the sale of capacity and energy to certain non-affiliated utilities located outside the system's service area. These agreements -- expiring at various dates discussed below -- are firm and pertain to capacity related to specific generating units. Because the energy is generally sold at cost under these agreements, profitability is primarily affected by revenues from capacity sales. The Company's capacity revenues amounted to $142 million in 1998, $136 million in 1997, and $151 million in 1996. Unit power from Plant Miller is being sold to Florida Power Corporation (FPC), Florida Power & Light Company (FP&L), Jacksonville Electric Authority (JEA) and the City of Tallahassee, Florida. Under these agreements, approximately 1,200 megawatts of capacity are scheduled to be sold through 1999. Thereafter, these sales will remain at that approximate level -- unless reduced by FP&L, FPC, and JEA for the periods after 1999 with a minimum of three years notice -- until the expiration of the contracts in 2010. Alabama Municipal Electric Authority (AMEA) Capacity Contracts In August 1986, the Company entered into a firm power sales contract with AMEA entitling AMEA to scheduled amounts of capacity (to a maximum 100 megawatts) for a period of 15 years commencing September 1, 1986 (1986 Contract). In October 1991, the Company entered into a second firm power sales contract with AMEA entitling AMEA to scheduled amounts of additional capacity (to a maximum 80 megawatts) for a period of 15 years commencing October 1, 1991 (1991 Contract). In both contracts the power will be sold to AMEA for its member municipalities that previously were served directly by the Company as wholesale customers. Under the terms of the contracts, the Company received payments from AMEA representing the net present value of the revenues associated with the respective capacity entitlements, discounted at effective annual rates of 9.96 percent and 11.19 percent for the 1986 and 1991 contracts, respectively. These payments are being recognized as operating revenues and the discounts are being amortized to other interest expense as scheduled capacity is made available over the terms of the contracts. In order to secure AMEA's advance payments and the Company's performance obligation under the contracts, the Company issued and delivered to an escrow agent first mortgage bonds representing the maximum amount of liquidated damages payable by the Company in the event of a default under the contracts. No principal or interest is payable on such bonds unless and until a default by the Company occurs. As the liquidated damages decline under the contracts, a portion of the bonds equal to the decreases are returned to the Company. At December 31, 1998, $99.4 million of such bonds was held by the escrow agent under the contracts. 8. INCOME TAXES At December 31, 1998, the tax-related regulatory assets and liabilities were $363 million and $316 million, respectively. These assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. These liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of the federal and state income tax provisions are as follows: 1998 1997 1996 -------------------------------- (in thousands) Total provision for income taxes: Federal -- Currently payable $123,384 $197,159 $172,911 Deferred -- current year 59,162 32,884 (6,309) reversal of prior years 12,984 (44,300) 18,948 - - - - - - - ----------------------------------------------------------------- 195,530 185,743 185,550 - - - - - - - ----------------------------------------------------------------- State -- Currently payable 15,761 23,147 16,212 Deferred -- current year 4,811 1,409 697 reversal of prior years 2,473 (2,422) 3,249 - - - - - - - ----------------------------------------------------------------- 23,045 22,134 20,158 - - - - - - - ----------------------------------------------------------------- Total 218,575 207,877 205,708 Less income taxes credited to other income (6,347) (12,351) (22,400) - - - - - - - ----------------------------------------------------------------- Total income taxes charged to operations $224,922 $220,228 $228,108 ================================================================= II-76 NOTES (continued) Alabama Power Company 1998 Annual Report The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities, are as follows: 1998 1997 ------------------ (in millions) Deferred tax liabilities: Accelerated depreciat $ 861 $ 847 Property basis differences 435 463 Premium on reacquired debt 29 30 Pensions 50 20 Other 46 11 ---------------------------------------------------------------- Total 1,421 1,371 - - - - - - - ------------------------------------------------------------------ Deferred tax assets: Capacity prepayments 28 31 Other deferred costs 25 33 Postretirement benefits 20 18 Unbilled revenue 16 16 Other 56 66 Total 145 164 ---------------------------------------------------------------- Net deferred tax liabilities 1,276 1,207 Portion included in current assets (liabilities), net (73) (15) - - - - - - - ---------------------------------------------------------------- Accumulated deferred income taxes in the Balance Sheets $ 1,203 $ 1,192 ================================================================ Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation in the Statements of Income. Credits amortized in this manner amounted to $11 million in 1998, 1997, and 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. A reconciliation of the federal statutory income tax rate to the effective income tax rate is as follows: 1998 1997 1996 -------------------------- Federal statutory rate 35.0% 35.0% 35.0% State income tax, net of federal deduction 2.5 2.4 2.2 Non-deductible book depreciation 1.5 1.5 1.5 Differences in prior years' deferred and current tax rates (1.6) (2.3) (1.6) Other (1.6) (1.9) (3.0) - - - - - - - --------------------------------------------------------------- Effective income tax rate 35.8% 34.7% 34.1% =============================================================== Southern Company files a consolidated federal income tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. 9. COMPANY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES Statutory business trusts formed by the Company, of which the Company owns all the common securities, have issued mandatorily redeemable preferred securities as follows: Date of Maturity Issue Amount Rate Notes Date -------------------------------------------------------- (millions) (millions) Trust I 1/1996 $ 97 7.375% $100 3/2026 Trust II 1/1997 200 7.60 206 12/2036 Substantially all of the assets of each trust are junior subordinated notes issued by the Company in the respective approximate principal amounts set forth above. In February 1999, the Company issued $50 million of variable rate mandatorily redeemable preferred securities (Trust III), the initial distribution rate of which was 4.85 percent. The associated junior subordinated notes, in the amount of $51.6 million, will be due February 28, 2029. The Company considers that the mechanisms and obligations relating to the preferred securities, taken together, constitute a full and unconditional guarantee by the Company of the Trusts' payment obligations with respect to the preferred securities. The Trusts are subsidiaries of the Company, and accordingly are consolidated in the Company's financial statements. 10. OTHER LONG-TERM DEBT Pollution control obligations represent installment purchases of pollution control facilities financed by funds derived from sales by public authorities of revenue bonds. The Company is required to make payments sufficient for the authorities to meet principal and interest requirements of such bonds. With respect to $215.9 million of such pollution control obligations, the Company has authenticated and delivered to the trustees a like principal amount of first mortgage bonds as security for its obligations under the installment purchase agreements. II-77 NOTES (continued) Alabama Power Company 1998 Annual Report No principal or interest on these first mortgage bonds is payable unless and until a default occurs on the installment purchase agreements. In 1997 and 1998, the Company issued unsecured senior notes. The senior notes are, in effect, subordinated to all secured debt of the Company, including its first mortgage bonds. The estimated aggregate annual maturities of capitalized lease obligations through 2003 are as follows: $1.0 million in 1999, $0.9 million in 2000, $0.8 million in 2001, $0.9 million in 2002 and $0.9 million in 2003. 11. SECURITIES DUE WITHIN ONE YEAR A summary of the improvement fund requirements and scheduled maturities and redemptions of long-term debt and preferred stock due within one year at December 31 is as follows: 1998 1997 ------------------------ (in thousands) Bond improvement fund requirements $ - $18,450 First mortgage bond maturities and redemptions 470,000 55,895 Other long-term debt maturities (Note 10) 1,209 991 ------------------------------------------------------------- Total long-term debt due within one year 471,209 75,336 ------------------------------------------------------------- Preferred stock to be redeemed 50,000 - ------------------------------------------------------------- Total $521,209 $75,336 ============================================================= The annual first mortgage bond improvement fund requirement is 1 percent of the aggregate principal amount of bonds of each series authenticated, so long as a portion of that series is outstanding, and may be satisfied by the deposit of cash and/or reacquired bonds, the certification of unfunded property additions or a combination thereof. Scheduled maturities amount to $0.2 million in connection with pollution control bonds as a result of the redemption, over a five-year period, of the 7.25 percent series due 2003. 12. NUCLEAR INSURANCE Under the Price-Anderson Amendments Act of 1988 (Act), the Company maintains agreements of indemnity with the NRC that, together with private insurance, cover third-party liability arising from any nuclear incident occurring at Plant Farley. The Act provides funds up to $9.7 billion for public liability claims that could arise from a single nuclear incident. Plant Farley is insured against this liability to a maximum of $200 million by private insurance, with the remaining coverage provided by a mandatory program of deferred premiums which could be assessed, after a nuclear incident, against all owners of nuclear reactors. The Company could be assessed up to $88 million per incident for each licensed reactor it operates but not more than an aggregate of $10 million per incident to be paid in a calendar year for each reactor. Such maximum assessment, excluding any applicable state premium taxes, for the Company is $176 million per incident but not more than an aggregate of $20 million to be paid for each incident in any one year. The Company is a member of Nuclear Electric Insurance Limited (NEIL), a mutual insurer established to provide property damage insurance in an amount up to $500 million for members' nuclear generating facilities. Additionally, the Company has policies that currently provide decontamination, excess property insurance, and premature decommissioning coverage up to $2.25 billion for losses in excess of the $500 million primary coverage. This excess insurance is also provided by NEIL. NEIL also covers the additional cost that would be incurred in obtaining replacement power during a prolonged accidental outage at a member's nuclear plant. Members can be insured against increased cost of replacement power in an amount up to $3.5 million per week (starting 17 weeks after the outage) for one year and up to $2.8 million per week for the second and third years. Under each of the NEIL policies, members are subject to assessments if losses each year exceed the accumulated funds available to the insurer under that policy. The current maximum annual assessments for the Company under the three NEIL policies would be $21 million. For all on-site property damage insurance policies for commercial nuclear power plants, the NRC requires that the proceeds of such policies issued or renewed on or after April 2, 1991, shall be dedicated first for the sole purpose of placing the reactor in a safe and stable condition after an accident. Any remaining proceeds are to be applied next toward the costs of decontamination and debris removal operations ordered by the NRC, and any further remaining II-78 NOTES (continued) Alabama Power Company 1998 Annual Report proceeds are to be paid either to the Company or to its bond trustees as may be appropriate under the policies and applicable trust indentures. All retrospective assessments, whether generated for liability, property or replacement power may be subject to applicable state premium taxes. 13. COMMON STOCK DIVIDEND RESTRICTIONS The Company's first mortgage bond indenture contains various common stock dividend restrictions that remain in effect as long as the bonds are outstanding. At December 31, 1998, retained earnings of $796 million were restricted against the payment of cash dividends on common stock under terms of the mortgage indenture. 14. QUARTERLY FINANCIAL INFORMATION (Unaudited) Summarized quarterly financial data for 1998 and 1997 are as follows: Net Income After Dividends Quarter Operating Operating on Preferred Ended Revenues Income Stock - - - - - - - -------------------- ----------------------------------------- (in thousands) March 1998 $716,505 $130,735 $ 66,041 June 1998 863,715 178,722 94,750 September 1998 1,057,988 242,063 173,958 December 1998 748,165 105,519 42,474 March 1997 $704,768 $123,455 $ 57,807 June 1997 728,089 125,750 63,137 September 1997 962,446 249,487 191,800 December 1997 753,808 128,511 63,195 ================================================================= The Company's business is influenced by seasonal weather conditions. II-79
SELECTED FINANCIAL AND OPERATING DATA Alabama Power Company 1998 Annual Report =========================================================================================================================== 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $3,386,373 $3,149,111 $3,120,775 Net Income after Dividends on Preferred Stock (in thousands) $377,223 $375,939 $371,490 Cash Dividends on Common Stock (in thousands) $367,100 $339,600 $347,500 Return on Average Common Equity (percent) 13.63 13.76 13.75 Total Assets (in thousands) $9,225,698 $8,812,867 $8,733,846 Gross Property Additions (in thousands) $610,132 $451,167 $425,024 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $2,784,067 $2,750,569 $2,714,277 Preferred stock 317,512 255,512 340,400 Preferred stock subject to mandatory redemption - - - Subsidiary obligated mandatorily redeemable preferred securities 297,000 297,000 97,000 Long-term debt 2,646,566 2,473,202 2,354,006 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $6,045,145 $5,776,283 $5,505,683 =========================================================================================================================== Capitalization Ratios (percent): Common stock equity 46.1 47.6 49.3 Preferred stock 5.2 4.4 6.2 Company obligated mandatorily redeemable preferred securities 4.9 5.2 1.7 Long-term debt 43.8 42.8 42.8 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 =========================================================================================================================== First Mortgage Bonds (in thousands): Issued - - - Retired 771,108 74,951 83,797 Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - 200,000 97,000 Senior Notes (in thousands): Issued 1,356,200 193,800 - Preferred Stock (in thousands): Issued 200,000 - - Retired 88,000 184,888 - - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 Standard and Poor's A+ A+ A+ Duff & Phelps AA- AA- AA- Preferred Stock - Moody's a2 a2 a2 Standard and Poor's A A A Duff & Phelps A A+ A+ Unsecured Long-Term Debt - Moody's A2 A2 - Standard and Poor's A A - Duff & Phelps A+ A+ - - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 1,106,217 1,092,161 1,073,559 Commercial 182,738 177,362 171,827 Industrial 5,020 5,076 5,100 Other 733 728 732 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 1,294,708 1,275,327 1,251,218 =========================================================================================================================== Employees (year-end) 6,631 6,531 6,865 II-80
SELECTED FINANCIAL AND OPERATING DATA Alabama Power Company 1998 Annual Report ============================================================================================================================== 1995 1994 1993 1992 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Operating Revenues (in thousands) $3,024,774 $2,935,142 $3,007,609 $2,846,840 Net Income after Dividends on Preferred Stock (in thousands) $360,894 $356,338 $346,494 $338,555 Cash Dividends on Common Stock (in thousands) $285,000 $268,000 $252,900 $273,300 Return on Average Common Equity (percent) 13.61 13.86 13.94 14.02 Total Assets (in thousands) $8,744,360 $8,459,217 $8,248,683 $6,593,618 Gross Property Additions (in thousands) $551,781 $536,785 $435,843 $367,463 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Capitalization (in thousands): Common stock equity $2,690,374 $2,614,405 $2,526,348 $2,443,493 Preferred stock 440,400 440,400 440,400 489,400 Preferred stock subject to mandatory redemption - - - - Subsidiary obligated mandatorily redeemable preferred securities - - - - Long-term debt 2,374,948 2,455,013 2,362,852 2,202,473 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total (excluding amounts due within one year) $5,505,722 $5,509,818 $5,329,600 $5,135,366 ============================================================================================================================== Capitalization Ratios (percent): Common stock equity 48.9 47.4 47.4 47.6 Preferred stock 8.0 8.0 8.3 9.5 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 43.1 44.6 44.3 42.9 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ============================================================================================================================== First Mortgage Bonds (in thousands): Issued - 150,000 860,000 745,000 Retired - 20,387 699,788 931,797 Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - - - - Senior Notes (in thousands): Issued - - - - Preferred Stock (in thousands): Issued - - 158,000 150,000 Retired - - 207,000 145,000 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 A1 Standard and Poor's A+ A A A Duff & Phelps A+ A+ A+ A Preferred Stock - Moody's a2 a2 a2 a2 Standard and Poor's A A- A- A- Duff & Phelps A A- A- A- Unsecured Long-Term Debt - Moody's - - - - Standard and Poor's - - - - Duff & Phelps - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Customers (year-end): Residential 1,058,197 1,042,974 1,027,130 1,012,294 Commercial 166,480 162,239 157,337 152,530 Industrial 5,338 5,341 5,391 5,434 Other 725 716 713 704 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 1,230,740 1,211,270 1,190,571 1,170,962 ============================================================================================================================== Employees (year-end) 7,261 7,996 8,009 8,116
II-81A
SELECTED FINANCIAL AND OPERATING DATA Alabama Power Company 1998 Annual Report =============================================================================================================================== 1991 1990 1989 1988 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $2,846,794 $2,722,424 $2,629,354 $2,476,626 Net Income after Dividends on Preferred Stock (in thousands) $339,666 $312,803 $311,146 $283,475 Cash Dividends on Common Stock (in thousands) $232,900 $220,800 $217,300 $212,700 Return on Average Common Equity (percent) 14.55 14.00 14.53 14.03 Total Assets (in thousands) $6,549,462 $6,362,293 $6,279,431 $6,180,945 Gross Property Additions (in thousands) $397,011 $444,680 $459,199 $643,892 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $2,387,198 $2,280,590 $2,188,811 $2,094,815 Preferred stock 484,400 484,400 484,400 484,400 Preferred stock subject to mandatory redemption - 12,500 17,500 22,500 Subsidiary obligated mandatorily redeemable preferred securities - - - - Long-term debt 2,382,635 2,397,931 2,435,129 2,496,492 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $5,254,233 $5,175,421 $5,125,840 $5,098,207 =============================================================================================================================== Capitalization Ratios (percent): Common stock equity 45.4 44.1 42.7 41.1 Preferred stock 9.2 9.6 9.8 9.9 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 45.4 46.3 47.5 49.0 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 =============================================================================================================================== First Mortgage Bonds (in thousands): Issued 250,000 - - 150,000 Retired 227,695 33,122 75,650 42,445 Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - - - - Senior Notes (in thousands): Issued - - - - Preferred Stock (in thousands): Issued - - - 100,000 Retired 17,500 5,000 5,000 2,500 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 A1 Standard and Poor's A A A A Duff & Phelps A A A 6 Preferred Stock - Moody's a2 a2 a2 a2 Standard and Poor's A- A- A- A- Duff & Phelps A- A- A- 7 Unsecured Long-Term Debt - Moody's - - - - Standard and Poor's - - - - Duff & Phelps - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 997,585 985,566 974,622 964,581 Commercial 148,228 144,340 141,265 137,955 Industrial 5,496 5,322 5,200 5,120 Other 697 690 684 678 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 1,152,006 1,135,918 1,121,771 1,108,334 =============================================================================================================================== Employees (year-end) 8,513 9,473 9,698 10,302
II-81B
SELECTED FINANCIAL AND OPERATING DATA (continued) Alabama Power Company 1998 Annual Report =========================================================================================================================== 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $1,133,435 $997,507 $998,806 Commercial 779,169 724,148 696,453 Industrial 853,550 775,591 759,628 Other 14,523 13,563 13,729 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 2,780,677 2,510,809 2,468,616 Sales for resale - non-affiliates 448,973 431,023 391,669 Sales for resale - affiliates 103,562 161,795 216,620 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 3,333,212 3,103,627 3,076,905 Other revenues 53,161 45,484 43,870 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total $3,386,373 $3,149,111 $3,120,775 =========================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 15,794,543 14,336,408 14,593,761 Commercial 11,904,509 11,330,312 10,904,476 Industrial 21,585,117 20,727,912 19,999,258 Other 196,647 180,389 192,573 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 49,480,816 46,575,021 45,690,068 Sales for resale - non-affiliates 11,840,909 12,329,480 9,491,237 Sales for resale - affiliates 5,976,099 8,993,326 10,292,066 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 67,297,824 67,897,827 65,473,371 =========================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.18 6.96 6.84 Commercial 6.55 6.39 6.39 Industrial 3.95 3.74 3.80 Total retail 5.62 5.39 5.40 Sales for resale 3.10 2.78 3.07 Total sales 4.95 4.57 4.70 Residential Average Annual Kilowatt-Hour Use Per Customer 14,370 13,254 13,705 Residential Average Annual Revenue Per Customer $1,031.21 $922.21 $937.95 Plant Nameplate Capacity Ratings (Note 1) (year-end) (megawatts) 11,151 11,151 11,151 Territorial Peak-Hour Demand (megawatts) (Note 2): Winter 7,757 8,478 8,413 Summer 10,329 9,778 9,912 Annual Load Factor (percent) (Note 2) 62.9 62.7 61.3 Plant Availability (percent): Fossil-steam 85.6 86.3 86.6 Nuclear 80.2 88.8 90.5 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 65.3 65.7 67.0 Nuclear 16.3 17.9 18.5 Hydro 6.9 7.5 7.1 Oil and gas 1.5 0.7 0.4 Purchased power - From non-affiliates 3.3 2.4 2.4 From affiliates 6.7 5.8 4.6 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 =========================================================================================================================== Total Fuel Economy Data (Note 1): BTU per net kilowatt-hour generated 8,938 9,984 10,035 Cost of fuel per million BTU (cents) 171.85 148.61 147.09 Average cost of fuel per net kilowatt-hour generated (cents) 1.54 1.48 1.48 =========================================================================================================================== Notes: (1) Generating capacity and fuel data includes Alabama Power Company's 50% portion of SEGCO. (2) Includes Southeastern Power Administration allotment. * Less than one-tenth of one percent.
II-82
SELECTED FINANCIAL AND OPERATING DATA (continued) Alabama Power Company 1998 Annual Report ============================================================================================================================== 1995 1994 1993 1992 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Operating Revenues (in thousands): Residential $997,069 $913,146 $947,277 $845,660 Commercial 670,453 647,202 634,895 589,816 Industrial 805,596 803,587 832,938 800,311 Other 13,619 13,515 13,344 12,734 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total retail 2,486,737 2,377,450 2,428,454 2,248,521 Sales for resale - non-affiliates 370,140 354,760 364,105 407,791 Sales for resale - affiliates 127,730 164,762 181,975 158,088 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total revenues from sales of electricity 2,984,607 2,896,972 2,974,534 2,814,400 Other revenues 40,167 38,170 33,075 32,440 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total $3,024,774 $2,935,142 $3,007,609 $2,846,840 ============================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 14,383,231 13,183,147 13,185,062 12,069,268 Commercial 10,043,220 9,645,798 9,185,462 8,629,869 Industrial 19,862,577 19,479,364 18,595,237 18,260,274 Other 186,848 185,876 181,673 176,798 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total retail 44,475,876 42,494,185 41,147,434 39,136,209 Sales for resale - non-affiliates 8,046,189 6,775,176 7,143,672 8,382,571 Sales for resale - affiliates 6,705,174 8,432,533 8,081,324 7,210,697 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 59,227,239 57,701,894 56,372,430 54,729,477 ============================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.93 6.93 7.18 7.01 Commercial 6.68 6.71 6.91 6.83 Industrial 4.06 4.13 4.48 4.38 Total retail 5.59 5.59 5.90 5.75 Sales for resale 3.38 3.42 3.59 3.63 Total sales 5.04 5.02 5.28 5.14 Residential Average Annual Kilowatt-Hour Use Per Customer 13,686 12,746 12,936 12,017 Residential Average Annual Revenue Per Customer $948.71 $882.88 $929.36 $842.00 Plant Nameplate Capacity Ratings (Note 1) (year-end) (megawatts) 10,831 10,431 10,431 10,431 Territorial Peak-Hour Demand (megawatts) (Note 2): Winter 7,958 8,217 7,152 7,077 Summer 10,090 9,028 9,457 8,801 Annual Load Factor (percent) (Note 2) 59.2 62.2 58.6 59.6 Plant Availability (percent): Fossil-steam 88.3 86.9 89.7 88.9 Nuclear 81.1 92.5 86.6 80.2 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Source of Energy Supply (percent): Coal 67.1 62.9 63.9 64.3 Nuclear 17.1 21.7 20.1 19.0 Hydro 7.0 8.4 6.9 8.5 Oil and gas 0.4 * * * Purchased power - From non-affiliates 2.7 1.3 1.1 1.2 From affiliates 5.7 5.7 8.0 7.0 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 100.0 100.0 100.0 100.0 ============================================================================================================================== Total Fuel Economy Data (Note 1): BTU per net kilowatt-hour generated 10,025 9,961 10,003 10,000 Cost of fuel per million BTU (cents) 148.68 157.62 173.66 164.57 Average cost of fuel per net kilowatt-hour generated (cents) 1.49 1.57 1.74 1.65 ============================================================================================================================== Notes: (1) Generating capacity and fuel data includes Alabama Power Company's 50% portion of SEGCO. (2) Includes Southeastern Power Administration allotment. * Less than one-tenth of one percent.
II-83A
SELECTED FINANCIAL AND OPERATING DATA (continued) Alabama Power Company 1998 Annual Report ================================================================================================================================= 1991 1990 1989 1988 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $864,347 $825,645 $781,982 $761,805 Commercial 582,730 551,634 533,487 510,910 Industrial 790,224 777,580 762,274 738,755 Other 12,662 12,103 11,743 11,255 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total retail 2,249,963 2,166,962 2,089,486 2,022,725 Sales for resale - non-affiliates 407,912 434,996 409,202 355,362 Sales for resale - affiliates 159,375 93,473 104,488 76,691 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 2,817,250 2,695,431 2,603,176 2,454,778 Other revenues 29,544 26,993 26,178 21,848 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total $2,846,794 $2,722,424 $2,629,354 $2,476,626 ================================================================================================================================= Kilowatt-Hour Sales (in thousands): Residential 12,324,898 11,996,794 11,346,736 11,332,285 Commercial 8,526,131 8,201,534 7,915,685 7,711,092 Industrial 17,511,579 17,713,153 17,360,791 16,881,342 Other 174,760 170,420 166,485 165,122 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total retail 38,537,368 38,081,901 36,789,697 36,089,841 Sales for resale - non-affiliates 8,810,442 10,277,060 10,292,329 7,905,750 Sales for resale - affiliates 7,784,285 4,519,275 5,048,743 3,551,142 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total 55,132,095 52,878,236 52,130,769 47,546,733 ================================================================================================================================= Average Revenue Per Kilowatt-Hour (cents): Residential 7.01 6.88 6.89 6.72 Commercial 6.83 6.73 6.74 6.63 Industrial 4.51 4.39 4.39 4.38 Total retail 5.84 5.69 5.68 5.60 Sales for resale 3.42 3.57 3.35 3.77 Total sales 5.11 5.10 4.99 5.16 Residential Average Annual Kilowatt-Hour Use Per Customer 12,435 12,256 11,717 11,839 Residential Average Annual Revenue Per Customer $872.04 $843.50 $807.50 $795.84 Plant Nameplate Capacity Ratings (Note 1) (year-end) (megawatts) 10,539 9,879 9,879 9,279 Territorial Peak-Hour Demand (megawatts) (Note 2): Winter 6,586 6,293 7,264 6,377 Summer 8,627 8,878 8,256 7,991 Annual Load Factor (percent) (Note 2) 59.9 57.4 59.5 59.6 Plant Availability (percent): Fossil-steam 93.1 92.2 90.7 91.3 Nuclear 87.0 86.5 83.1 91.9 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 61.5 57.0 54.1 53.9 Nuclear 20.8 21.6 21.0 26.1 Hydro 8.2 8.7 11.0 4.8 Oil and gas * 0.1 0.1 0.1 Purchased power - From non-affiliates 1.6 0.9 1.8 0.5 From affiliates 7.9 11.7 12.0 14.6 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 ================================================================================================================================= Total Fuel Economy Data (Note 1): BTU per net kilowatt-hour generated 9,985 10,072 10,061 10,137 Cost of fuel per million BTU (cents) 170.49 171.55 172.20 168.21 Average cost of fuel per net kilowatt-hour generated (cents) 1.70 1.73 1.73 1.71 ================================================================================================================================= Notes: (1) Generating capacity and fuel data includes Alabama Power Company's 50% portion of SEGCO. (2) Includes Southeastern Power Administration allotment. * Less than one-tenth of one percent.
11-83B GEORGIA POWER COMPANY FINANCIAL SECTION II-84 MANAGEMENT'S REPORT Georgia Power Company 1998 Annual Report The management of Georgia Power Company has prepared this annual report and is responsible for the financial statements and related information. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances, and necessarily include amounts that are based on the best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that the books and records reflect only authorized transactions of the Company. Limitations exist in any system of internal controls based upon the recognition that the cost of the system should not exceed its benefits. The Company believes that its system of internal accounting controls maintains an appropriate cost/benefit relationship. The Company's system of internal accounting controls is evaluated on an ongoing basis by the Company's internal audit staff. The Company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, which is composed of three directors who are not employees, provides a broad overview of management's financial reporting and control functions. At least three times a year this committee meets with management, the internal auditors, and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal control and financial reporting matters. The internal auditors and the independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the Company's operations are conducted with a high standard of business ethics. In management's opinion, the financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of Georgia Power Company in conformity with generally accepted accounting principles. /s/ H. Allen Franklin H. Allen Franklin President and Chief Executive Officer /s/ David M. Ratcliffe David M. Ratcliffe Executive Vice President, Treasurer and Chief Financial Officer February 10, 1999 II-85 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Georgia Power Company: We have audited the accompanying balance sheets and statements of capitalization of Georgia Power Company (a Georgia corporation and a wholly owned subsidiary of Southern Company) as of December 31, 1998 and 1997, and the related statements of income, retained earnings, paid-in capital, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements (pages II-97 through II-117) referred to above present fairly, in all material respects, the financial position of Georgia Power Company as of December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia February 10, 1999 II-86 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Georgia Power Company 1998 Annual Report RESULTS OF OPERATIONS Earnings Georgia Power Company's 1998 earnings totaled $570 million, representing a $24 million (4.0 percent) decrease from 1997. This earnings decrease resulted primarily from higher operating expenses, additional depreciation charges pursuant to a Georgia Public Service Commission (GPSC) retail accounting order discussed below, lower wholesale capacity revenues, and the write-off of a portion of the Rocky Mountain plant investment. These decreases to earnings were partially offset by higher retail revenues, lower financing costs and increased non-operating income. Earnings for 1997 totaled $594 million, representing a $14 million (2.4 percent) increase over 1996. This earnings increase resulted primarily from lower operating expenses, lower financing costs, and increased non-operating income, partially offset by lower retail revenues and additional depreciation charges pursuant to the GPSC retail accounting order. Revenues The following table summarizes the factors impacting operating revenues for the 1996-1998 period: Increase (Decrease) From Prior Year ------------------------------------ 1998 1997 1996 ------------------------------------ Retail - (in millions) Sales growth $ 174 $ 62 $ 58 Weather 101 (74) (25) Fuel cost recovery 70 (30) 28 Demand-side programs (25) (3) (10) - - - - - - - -------------------------------------------------------------------- Total retail 320 (45) 51 - - - - - - - -------------------------------------------------------------------- Sales for resale - Non-affiliates (23) 1 (9) Affiliates 43 3 (41) - - - - - - - -------------------------------------------------------------------- Total sales for resale 20 4 (50) - - - - - - - -------------------------------------------------------------------- Other operating revenues 13 10 10 - - - - - - - -------------------------------------------------------------------- Total operating revenues $ 353 $ (31) $ 11 ==================================================================== Percent change 8.0% (0.7)% 0.3% - - - - - - - -------------------------------------------------------------------- Retail revenues of $4.3 billion in 1998 increased $320 million (8.0 percent) from 1997 primarily due to higher energy sales to residential and commercial customers. Retail revenues of $4.0 billion in 1997 decreased $45 million (1.1 percent) from 1996 primarily due to milder-than-normal weather, as well as commercial and industrial customers taking advantage of load management rates. Fuel revenues generally represent the direct recovery of fuel expense, including the fuel component of purchased energy, and do not affect net income. Revenues from demand-side option programs generally represent the direct recovery of program costs. See Note 3 to the financial statements under "Demand-Side Conservation Programs" for further information on these programs. Wholesale revenues from sales to non-affiliated utilities decreased slightly in 1998 and were as follows: 1998 1997 1996 ------------------------------- (in millions) Outside service area - Long-term contracts $ 51 $ 71 $ 84 Other sales 94 80 37 Inside service area 115 132 161 - - - - - - - --------------------------------------------------------------- Total $260 $283 $282 =============================================================== Revenues from long-term contracts outside the service area decreased in 1998 primarily due to lower capacity charges and decreased energy sales and in 1997 primarily due to scheduled reductions in the amount of megawatt-hour capacity under these contracts. See Note 7 to the financial statements for further information regarding these sales. Revenues from other sales outside the service area increased in 1998 and 1997 primarily due to power marketing activities. These increases were primarily offset by increases in purchased power from non-affiliates and, as a result, had no significant effect on net income. Wholesale revenues from customers within the service area decreased in 1998 and 1997 primarily due to a decrease in revenues under a power supply agreement with Oglethorpe Power Corporation (OPC). OPC decreased its purchases of capacity by 250 megawatts each in September 1996, 1997, and 1998 and has notified the Company of its intent to decrease purchases of capacity by an additional 250 megawatts in September 1999 and 125 megawatts in September 2000. Revenues from sales to affiliated companies within the Southern electric system, as well as purchases of energy, will vary from year to year depending on demand and the availability and cost of generating resources at each company. These transactions do not have a significant impact on earnings. II-87 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report Kilowatt-hour (KWH) sales for 1998 and the percent change by year were as follows: Percent Change ---------------------------- 1998 KWH 1998 1997 1996 ----------------------------------------- (in billions) Residential 19.5 12.6% (3.0)% 3.0% Commercial 22.9 8.2 1.5 4.9 Industrial 27.3 2.2 1.9 3.6 Other 0.5 1.0 0.4 8.6 -------- Total retail 70.2 6.9 0.4 3.9 -------- Sales for resale - Non-affiliates 6.4 (5.2) (13.6) 19.4 Affiliates 2.0 19.4 44.6 (56.9) -------- Total sales for resale 8.4 (0.3) (6.0) (3.0) -------- Total sales 78.6 6.0 (0.3) 3.0 ======== - - - - - - - ------------------------------------------------------------------ Residential and commercial sales increased in 1998 12.6 percent and 8.2 percent, respectively, and industrial sales increased slightly by 2.2 percent. The increases are attributed primarily to sales growth and hotter temperatures in the summer months. Residential sales in 1997 declined 3.0 percent while sales to commercial and industrial customers increased slightly by 1.5 percent and 1.9 percent, respectively. Milder-than-normal temperatures experienced in 1997 contributed to the moderate sales. Expenses Fuel costs constitute the single largest expense for the Company. The mix of fuel sources for generation of electricity is determined primarily by system load, the unit cost of fuel consumed, and the availability of hydro and nuclear generating units. The amount and sources of generation and the average cost of fuel per net KWH generated were as follows: 1998 1997 1996 ------------------------- Total generation (billions of KWH) 69.1 66.5 63.7 Sources of generation (percent) -- Coal 73.3 74.8 74.3 Nuclear 21.6 21.8 22.4 Hydro 2.6 2.7 2.7 Oil and gas 2.5 0.7 0.6 Average cost of fuel per net KWH generated (cents) -- 1.36 1.32 1.35 - - - - - - - --------------------------------------------------------------- Fuel expense increased 7.0 percent in 1998 primarily due to an increase in generation to meet higher energy demands and a higher average cost of fuel. Fuel expense increased 2.6 percent in 1997 primarily due to an increase in generation, partially offset by a lower average cost of fuel. Purchased power expense increased $70 million (21.9 percent) to meet higher energy demands and power marketing activities. The majority of the energy purchased for power marketing activities was resold to non-affiliated third parties and had no significant effect on net income. In June 1998, the Company began purchasing capacity and energy from a 300 megawatt cogeneration facility pursuant to a 30-year purchase power agreement. Purchased power expense decreased $66 million (17.1 percent) in 1997 primarily due to decreased purchases from affiliated companies and declines in contractual capacity buyback purchases from the co-owners of Plant Vogtle. Under the terms of the 1991 retail rate order, the costs of declining Plant Vogtle contractual capacity buyback purchases were levelized over a six-year period ending September 1997. The levelization is reflected in the amortization of deferred Plant Vogtle costs in the Statements of Income. See Note 1 to the financial statements under "Plant Vogtle Phase-In Plans" for additional information. II-88 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report Other operation and maintenance (O&M) expenses, excluding the provision for separation benefits, increased 15.9 percent primarily due to continuing expenses related to a new customer service system implemented in January 1998, modification of certain information systems for year 2000 compliance discussed below, an increase in outage costs at steam power generating facilities, and increased line maintenance. Other O&M expenses, excluding the provision for separation benefits, decreased 4.1 percent in 1997 primarily due to initiatives in 1996 to reduce fossil generation materials inventory levels and an adjustment in 1996 to deferred postretirement benefits to reflect changes in the retiree benefits plan. Depreciation and amortization increased $191 million in 1998 and $140 million in 1997 primarily due to accelerated depreciation of generating plant pursuant to the retail accounting order and an increase in plant-in-service. See Note 3 to the financial statements under "Retail Rate Order" for additional information. The Company has deferred certain expenses and recorded a deferred return related to Plant Vogtle under phase-in plans. The amortization of deferred Plant Vogtle costs reflects the completion in September 1997 of the amortization of the levelized buybacks and the Plant Vogtle Unit 1 cost deferrals under a 1987 GPSC order. In December 1998, the remaining Vogtle Unit 2 cost deferrals were fully amortized to expense under a 1998 retail rate order. See Note 1 to the financial statements under "Plant Vogtle Phase-In Plans" for information regarding the deferral and subsequent amortization of costs related to Plant Vogtle. Additionally, as a result of the 1998 retail rate order, the Company recorded a $34 million pre-tax write-off associated with a portion of its investment in the Rocky Mountain plant. See Note 3 to the financial statements under "Rocky Mountain Plant Status" for additional information. Other income (expense) increased in 1998 primarily due to the recognition of $73 million in interest income resulting from the resolution of tax issues with the Internal Revenue Service (IRS) and the State of Georgia. Other income (expense) increased in 1997 primarily due to increased tax benefits from losses of the parent company allocated to the Company under the joint consolidated income tax agreement between Southern Company and its subsidiaries. See Note 8 to the financial statements for additional information. Total financing costs decreased in 1998 and 1997. These changes were primarily due to the refinancing or retirement of securities. The Company refinanced or retired $754 million and $701 million of securities in 1998 and 1997, respectively. Dividends on preferred stock decreased $13 million and $26 million in 1998 and 1997, respectively. These decreases were partially offset by increases in interest and other charges of $6 million and $17 million in 1998 and 1997, respectively, primarily due to the issuance of additional mandatorily redeemable preferred securities in 1996 and 1997. Effects of Inflation The Company is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the Company is recovering its costs of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on the Company because of the large investment in utility plants with long economic life. Conventional accounting for historical cost does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations such as long-term debt and preferred securities. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings. The level of future earnings depends on numerous factors including regulatory matters and energy sales. The Company currently operates as a vertically integrated utility providing electricity to customers within its traditional service area located in the state of Georgia. Prices for electricity provided by the Company to retail customers are set by the GPSC under cost-based regulatory principles. II-89 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report On January 1, 1999, the Company began operating under a new three-year retail rate order approved by the GPSC on December 18, 1998. The Company's earnings will continue to be evaluated against a retail return on common equity range of 10 percent to 12.5 percent, with rate reductions of $262 million in 1999 and an additional reduction of $24 million in 2000. The order provides for $85 million in each year, plus up to $50 million of any earnings in excess of the 12.5 percent return during the second and third years, to be applied to accelerated amortization or depreciation of assets. Two-thirds of any additional earnings in excess of the 12.5 percent return will be applied to rate reductions, with the remaining one-third retained by the Company. The Company will not file for a general base rate increase unless its projected retail return on common equity falls below 10 percent, and will be required to file a general rate case on July 1, 2001 in response to which the GPSC would be expected to determine whether the rate order should be continued, modified, or discontinued. See Note 3 to the financial statements under "Retail Rate Order" for additional information. Under a previous three-year accounting order ending December 1998, the Company's earnings were evaluated against a retail return on common equity range of 10 percent to 12.5 percent. Earnings in excess of 12.5 percent were used to accelerate the amortization of regulatory assets or depreciation of electric plant. As a result of the Company recognizing the write-off of a portion of its cost in the Rocky Mountain plant and completing the amortization of deferred Plant Vogtle costs in 1998 in accordance with the new retail rate order, future depreciation and amortization will decrease. Future depreciation and amortization will also decrease as a result of the cap on the amount of accelerated amortization or depreciation of assets under the new retail rate order. See Note 3 to the financial statements under "Retail Rate Order" for additional information. Growth in energy sales is subject to a number of factors which traditionally have included changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, weather, competition, initiatives to increase sales to existing customers, and the rate of economic growth in the Company's service area. Assuming normal weather, retail sales growth is projected to be approximately 2 percent annually on average during 1999 through 2001. In September 1998, OPC decreased its purchases of capacity under a power supply agreement by 250 megawatts and has notified the Company of its intent to decrease purchases of capacity by an additional 250 megawatts in September 1999 and 125 megawatts in September 2000. As a result, the Company's capacity revenues from OPC will decline by approximately $23 million in 1999, an additional $19 million in 2000, and an additional $4 million in 2001. Under the amended 1995 Integrated Resource Plan approved by the GPSC in March 1997, the resources associated with the decreased purchases in 1998 will be used to meet the needs of the Company's retail customers through 2004. See Note 3 to the financial statements under "FERC Review of Equity Returns" for additional information about other wholesale regulatory matters. The Company has entered into a five-year purchase power agreement scheduled to begin in June 2000 for approximately 215 megawatts. Capacity and fixed O&M payments are estimated to be between $7 million and $8 million each year. The Company plans to construct an eight unit, 600-megawatt combustion turbine peaking power plant that will begin operation in 2000 and will serve the wholesale market. The plant will supply power to fulfill a contract for 400 megawatts of peaking power already established with the Company. The addition of this facility will increase related O&M and depreciation expenses for the Company. Because the plant will be dedicated to the wholesale market, retail rates will not be affected. The Company may expand the facility to a total of 1,200 to 1,900 megawatts of capacity over the next two to three years in order to meet additional anticipated wholesale power demand. Compliance costs related to current and future environmental laws and regulations could affect earnings if such costs are not fully recovered. The Clean Air Act and other important environmental items are discussed further under "Environmental Issues." II-90 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Energy Act allows independent power producers (IPPs) to access a utility's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for a utility's large industrial and commercial customers and sell electric energy to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. The Company is aggressively working to maintain and expand its share of wholesale sales in the Southeastern power markets. Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. The Company continues to compete with other electric suppliers within the state. In Georgia, most new retail customers with at least 900 kilowatts of connected load may choose their electricity supplier. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition across the nation. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While the GPSC has held workshops to discuss retail competition and industry restructuring, there has been no proposed or enacted legislation to date in Georgia. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of costs. The GPSC plans to release a schedule and procedure order for a stranded costs docket in the first half of 1999. The ability of the Company to recover all its costs, including the regulatory assets described in Note 1 to the financial statements, could have a material effect on the financial condition of the Company. The Company is attempting to reduce regulatory assets and other costs through the three-year retail rate order. See Note 3 to the financial statements under "Retail Rate Order" for additional information. Unless the Company remains a low-cost producer and provides quality service, the Company's retail energy sales growth could be limited as competition increases. Conversely, continuing to be a low-cost producer could provide opportunities to increase market share and profitability in markets that evolve with changing regulation. The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of the Company's operations is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. The staff of the Securities and Exchange Commission has questioned certain of the current accounting practices of the electric utility industry - including the Company's - regarding the recognition, measurement, and classification of decommissioning costs for nuclear generating facilities in the financial statements. In response to these questions, the FASB has decided to review the accounting for liabilities related to the retirement of long-lived assets, including nuclear decommissioning. If the FASB issues new accounting rules, the estimated costs of retiring the Company's nuclear and other facilities may be required to be recorded as liabilities in the Balance Sheets. Also, the annual provisions for such costs could change. Because of the Company's current ability to recover asset retirement costs through rates, these changes would not have a significant adverse effect on results of operations. See Note 1 to the financial statements under "Depreciation and Nuclear Decommissioning" for additional information. II-91 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard-coded into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space, was used until the mid-1990s. Unless corrected before the year 2000, affected software systems and devices containing a chip or microprocessor with date and time functions could incorrectly process dates or the systems may cease to function. The Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. The Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year 2000 and beyond. Critical systems include, but are not limited to, reactor control systems, safe shutdown systems, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status The Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated what it believes to be adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. The Company's Year 2000 program was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in this phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices, and applications into the year 2000. The Southern Company has completed more than 70 percent of the activities contained in its work plan. The percentage of completion and projected completion by function are as follows: - - - - - - - ------------------------------------------------------------------------------ Work Plan ---------------------------------------------------- Remediation Project Inventory Assessment Testing Completion - - - - - - - ----------------------------------------------------------------------------- Generation 100% 100% 70% 6/99 - - - - - - - ----------------------------------------------------------------------------- Energy Management 100 100 90 6/99 - - - - - - - ----------------------------------------------------------------------------- Transmission and Distribution 100 100 100 1/99 - - - - - - - ----------------------------------------------------------------------------- Telecommunications 100 100 50 6/99 - - - - - - - ----------------------------------------------------------------------------- Corporate Applications 100 100 90 3/99 - - - - - - - ----------------------------------------------------------------------------- Year 2000 Costs Current projected total costs for Year 2000 readiness, including the Company's share of costs of Southern Nuclear Operating Company, are approximately $38 million. These costs include labor necessary to identify, test, and renovate affected devices and systems. From its inception through December 31, 1998, the Year 2000 program costs, recognized as expense, amounted to $27 million. Year 2000 Risks The Company is implementing a detailed process to minimize the possibility of service interruptions related to the Year 2000. The Company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operation. The Company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruptions in service that may occur within the service territory to be isolated and short in duration. The Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the service loss of any single bulk transmission element in its service territory. The Company has followed a proven methodology II-92 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, the Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council - - - - - - - - coordinated national drills during 1999. The Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to the Company's operations. Among such critical third parties are fuel, transportation, telecommunications, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to the Company are being developed. There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their Year 2000 issues. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the Company is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, the Company is drawing on that experience to make risk assessments and is developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. The Company is identifying critical operational locations, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the service territory isolated and short in duration. Exposure to Market Risks Due to cost-based rate regulation, the Company has limited exposure to market volatility in interest rates and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the Company enters into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statement as incurred. At December 31, 1998, exposure from these activities was not material to the Company's financial position, results of operations, or cash flows. Also, based on the Company's overall interest rate exposure at December 31, 1998, a near-term 100 basis point change in interest rates would not materially affect the financial statements. New Accounting Standards The FASB has issued Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments - including certain derivative instruments embedded in other contracts - and for hedging activities. The Company has not yet quantified the impact of adopting this statement on its financial statements; however, the adoption could increase volatility in earnings. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Costs of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, with gains and losses reflected rather than revenues and purchased power. Energy trading contracts are defined II-93 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report as energy contracts entered into with the objective of generating profits on or from exposure to shifts or changes in market prices. The Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the financial statements. FINANCIAL CONDITION Plant Additions In 1998 gross utility plant additions were $499 million. These additions were primarily related to transmission and distribution facilities and to the purchase of nuclear fuel. The funds needed for gross property additions are currently provided from operations. The Statements of Cash Flows provide additional details. Financing Activities In 1998 the Company continued to lower its financing costs by refinancing higher-cost issues. New issues during 1996 through 1998 totaled $1.6 billion and retirement or repayment of securities totaled $2.0 billion. Composite financing rates for long-term debt and preferred stock for the years 1996 through 1998, as of year-end, were as follows: 1998 1997 1996 ---------------------------------- Composite interest rate on long-term debt 5.64% 6.11% 6.39% Composite preferred stock dividend rate 5.52 5.18 6.34 - - - - - - - ------------------------------------------------------------------ Subsidiaries of the Company have issued mandatorily redeemable preferred securities. See Note 9 to the financial statements under "Preferred Securities" for additional information. Liquidity and Capital Requirements Cash provided from operations increased by $30 million in 1998, primarily due to higher retail revenues. The Company estimates that construction expenditures for the years 1999 through 2001 will total $755 million, $734 million and $829 million, respectively. Investments in additional combustion turbine and combined cycle generating units, transmission and distribution facilities, enhancements to existing generating plants, and equipment to comply with environmental requirements are planned. Cash requirements for improvement fund requirements, redemptions announced, and maturities of long-term debt and preferred stock are expected to total $601 million during 1999 through 2001. As a result of requirements by the Nuclear Regulatory Commission, the Company has established external trust funds for the purpose of funding nuclear decommissioning costs. The amount to be funded is $24 million in 1999 and increases to $30 million in 2000 and 2001. For additional information concerning nuclear decommissioning costs, see Note 1 to the financial statements under "Depreciation and Nuclear Decommissioning." Sources of Capital The Company expects to meet future capital requirements primarily using funds generated from operations and, if needed, by the issuance of new debt and equity securities, term loans, and short-term borrowings. To meet short-term cash needs and contingencies, the Company had approximately $1.3 billion of unused credit arrangements with banks at the beginning of 1999. See Note 9 to the financial statements under "Bank Credit Arrangements" for additional information. The Company historically has relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for its benefit by public authorities, to meet its long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. In this regard, the Company sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness it may incur. If the Company chooses to issue first mortgage bonds or preferred stock, it is required to meet certain coverage requirements specified in its mortgage indenture and corporate charter. The Company's ability to satisfy all coverage requirements is such that it could issue new first mortgage bonds and preferred stock to provide sufficient funds for all anticipated requirements. II-94 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report Environmental Issues In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act -- the acid rain compliance provision of the law -- significantly impacted the operating companies of Southern Company, including Georgia Power. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating units in the Southern electric system. As a result of Southern Company's compliance strategy, an additional 22 generating units were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants in the Southern electric system will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected units by switching to low-sulfur coal, which required some equipment upgrades. Construction expenditures for Georgia Power's Phase I compliance totaled approximately $167 million. For Phase II sulfur dioxide compliance, Southern Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Also, equipment to control nitrogen oxide emissions will be installed on additional system fossil-fired units as necessary to meet Phase II limits and ozone non-attainment requirements for metropolitan Atlanta through 2000. Georgia Power's current compliance strategy for Phase II and ozone non-attainment could require total estimated construction expenditures of approximately $39 million, of which $14 million remains to be spent as of December 31, 1998. A significant portion of costs related to the acid rain provision of the Clean Air Act is expected to be recovered through existing ratemaking provisions. However, there can be no assurance that all Clean Air Act costs will be recovered. In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the new rules. The final rules affect 22 states including Georgia. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various matters including: nitrogen oxide emission control strategies for ozone non-attainment areas; additional controls for hazardous air pollutant emissions; control strategies to reduce regional haze; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. The Company must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the Company could incur costs to clean up properties currently or previously owned. The Company conducts studies to determine the extent of any required clean-up costs and has recognized in the financial statements costs to clean up known sites. These costs for the Company amounted to $6 million, $4 million and $2 million, in 1998, 1997 and 1996, respectively. Additional sites may require environmental remediation for which the Company may be liable for a portion of or all required clean-up costs. See Note 3 to the financial statements under "Certain Environmental Contingencies" for information regarding the Company's potentially responsible party status at a site in Brunswick, Georgia, and the status of sites listed on the State of Georgia's hazardous site inventory. Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; and the Endangered Species Act. Changes to these laws could affect many areas of the Company's operations. The full impact of any such changes cannot be determined at this time. II-95 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Georgia Power Company 1998 Annual Report Compliance with possible additional legislation related to global climate change, electromagnetic fields and other environmental and health concerns could significantly affect the Company. The impact of new legislation -- if any -- will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for liability as the result of lawsuits alleging damages caused by electromagnetic fields. Cautionary Statement Regarding Forward-Looking Information The Company's 1998 Annual Report contains forward-looking and historical information. The Company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the Company's markets; potential business strategies -- including acquisitions or dispositions of assets or internal restructuring -- that may be pursued by Southern Company; state and federal rate regulation; Year 2000 issues; changes in or application of environmental and other laws and regulations to which the Company is subject; political, legal and economic conditions and developments; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; and other factors discussed in the reports--including Form 10-K--filed from time to time by the Company with the Securities and Exchange Commission. II-96 STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Georgia Power Company 1998 Annual Report
=============================================================================================================================== 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Revenues: Revenues $ 4,656,647 $ 4,347,009 $ 4,380,893 Revenues from affiliates 81,606 38,708 35,886 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total operating revenues 4,738,253 4,385,717 4,416,779 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation-- Fuel 917,119 857,269 835,194 Purchased power from non-affiliates 229,960 143,409 157,308 Purchased power from affiliates 161,003 177,240 229,324 Provision for separation benefits 2,369 5,459 39,099 Other 817,220 696,700 741,383 Maintenance 358,218 317,199 315,934 Depreciation and amortization 763,390 572,640 432,940 Amortization of deferred Plant Vogtle costs (Note 1) 50,412 120,577 136,650 Write-down of Rocky Mountain plant (Note 3) 33,536 - - Taxes other than income taxes 204,623 207,192 207,098 Federal and state income taxes 406,983 426,918 435,904 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total operating expenses 3,944,833 3,524,603 3,530,834 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Income 793,420 861,114 885,945 Other Income (Expense): Allowance for equity funds used during construction 3,235 6,012 3,144 Equity in earnings of unconsolidated subsidiary (Note 4) 3,735 4,266 3,851 Interest income (Note 3) 79,578 10,581 5,333 Other, net (41,512) (35,834) (43,502) Income taxes applicable to other income 8,351 31,763 18,581 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Income Before Interest and Other Charges 846,807 877,902 873,352 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Interest and Other Charges: Interest on long-term debt 180,746 194,344 207,851 Allowance for debt funds used during construction (7,117) (8,962) (11,416) Interest on interim obligations 12,213 7,795 15,478 Amortization of debt discount, premium and expense, net 13,366 14,179 14,790 Other interest charges 17,105 10,254 6,338 Distributions on preferred securities of subsidiary companies 54,327 47,369 14,958 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Interest and other charges, net 270,640 264,979 247,999 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net Income 576,167 612,923 625,353 Dividends on Preferred Stock 5,939 18,927 45,026 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Net Income After Dividends on Preferred Stock $ 570,228 $ 593,996 $ 580,327 =============================================================================================================================== The accompanying notes are an integral part of these statements.
II-97
STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Georgia Power Company 1998 Annual Report ========================================================================================================================== 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Activities: Net income $ 576,167 $ 612,923 $ 625,353 Adjustments to reconcile net income to net cash provided from operating activities -- Depreciation and amortization 867,637 674,286 521,086 Deferred income taxes and investment tax credits, net (93,005) (21,425) 35,700 Allowance for equity funds used during construction (3,235) (6,012) (3,144) Amortization of deferred Plant Vogtle costs 50,412 120,577 136,650 Other, net (6,546) 2,076 45,255 Changes in certain current assets and liabilities -- Receivables, net (25,453) 13,387 9,421 Inventories (11,156) 39,748 55,753 Payables 47,862 (10,007) (35,651) Taxes accrued 22,139 (3,596) 11,766 Energy cost recovery, retail (7,649) (20,103) 679 Other (15,142) (30,026) (15,880) - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Net cash provided from operating activities 1,402,031 1,371,828 1,386,988 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Investing Activities: Gross property additions (499,053) (475,921) (428,220) Other 67,031 16,223 (13,149) - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Net cash used for investing activities (432,022) (459,698) (441,369) - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Financing Activities: Proceeds -- Preferred securities - 364,250 225,000 First mortgage bonds - - 10,000 Pollution control bonds 89,990 284,700 112,825 Senior notes 495,000 - - Retirements -- Preferred stock (106,064) (356,392) (179,148) First mortgage bonds (558,250) (60,258) (210,860) Pollution control bonds (89,990) (284,700) (119,665) Interim obligations, net (25,378) (64,266) 30,166 Special deposits -- redemption funds - 44,454 (44,454) Capital distribution to parent company (270,000) (205,000) (250,000) Payment of preferred stock dividends (9,137) (26,917) (46,911) Payment of common stock dividends (536,600) (520,000) (475,500) Miscellaneous (26,641) (20,024) (10,646) - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Net cash used for financing activities (1,037,070) (844,153) (959,193) - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Net Change in Cash and Cash Equivalents (67,061) 67,977 (13,574) Cash and Cash Equivalents at Beginning of Year 83,333 15,356 28,930 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Cash and Cash Equivalents at End of Year $ 16,272 $ 83,333 $ 15,356 ========================================================================================================================== Supplemental Cash Flow Information: Cash paid during the year for -- Interest (net of amount capitalized) $ 269,524 $ 258,298 $ 249,434 Income taxes (net of refunds) 480,318 427,596 373,886 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- The accompanying notes are an integral part of these statements.
II-98 BALANCE SHEETS At December 31, 1998 and 1997 Georgia Power Company 1998 Annual Report
================================================================================================================================ ASSETS 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Utility Plant: Plant in service $ 15,441,146 $ 15,082,570 Less accumulated provision for depreciation 6,109,331 5,319,680 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- 9,331,815 9,762,890 Nuclear fuel, at amortized cost 121,169 126,882 Construction work in progress (Note 4) 189,849 214,128 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 9,642,833 10,103,900 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Other Property and Investments: Southern Electric Generating Company, at equity (Note 4) 24,360 24,973 Nuclear decommissioning trusts, at market 284,536 194,417 Miscellaneous 34,781 87,907 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 343,677 307,297 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 16,272 83,333 Receivables-- Customer accounts receivable 439,420 385,844 Other accounts and notes receivable 99,574 110,278 Affiliated companies 16,817 20,333 Accumulated provision for uncollectible accounts (5,500) (3,000) Fossil fuel stock, at average cost 104,133 96,067 Materials and supplies, at average cost 243,477 240,387 Prepayments 29,670 27,503 Vacation pay deferred 43,610 40,996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 987,473 1,001,741 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Charges and Other Assets: Deferred charges related to income taxes (Note 8) 604,488 688,472 Deferred Plant Vogtle costs (Note 1) - 50,412 Premium on reacquired debt, being amortized 173,858 166,609 Prepaid pension costs 103,606 67,777 Debt expense, being amortized 51,261 40,927 Miscellaneous 126,422 146,593 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 1,059,635 1,160,790 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total Assets $ 12,033,618 $ 12,573,728 ================================================================================================================================ The accompanying notes are an integral part of these statements.
II-99 BALANCE SHEETS (continued) At December 31, 1998 and 1997 Georgia Power Company 1998 Annual Report
================================================================================================================================= CAPITALIZATION AND LIABILITIES 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Capitalization (See accompanying statements): Common stock equity $ 3,784,172 $ 4,019,728 Preferred stock 15,527 157,247 Company obligated mandatorily redeemable preferred securities of subsidiaries substantially all of whose assets are junior subordinated debentures or notes (Note 9) 689,250 689,250 Long-term debt 2,744,362 2,982,835 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 7,233,311 7,849,060 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Preferred stock due within one year (Note 9) 35,656 - Long-term debt due within one year (Note 9) 399,429 220,855 Notes payable to banks (Note 9) 117,634 142,300 Commercial paper (Note 9) 223,218 223,930 Accounts payable-- Affiliated companies 75,774 71,373 Other 326,317 261,293 Customer deposits 69,584 68,618 Taxes accrued-- Federal and state income 15,801 4,480 Other 122,359 111,541 Interest accrued 60,187 72,437 Miscellaneous 100,793 105,683 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 1,546,752 1,282,510 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 8) 2,249,613 2,417,547 Accumulated deferred investment tax credits 381,914 397,202 Deferred credits related to income taxes (Note 8) 284,017 297,560 Employee benefits provisions 177,148 169,887 Miscellaneous 160,863 159,962 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 3,253,555 3,442,158 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 1 through 7) Total Capitalization and Liabilities $ 12,033,618 $ 12,573,728 ================================================================================================================================ The accompanying notes are an integral part of these statements.
II-100
STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Georgia Power Company 1998 Annual Report ================================================================================================================================== 1998 1997 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Common Stock Equity: Common stock, without par value -- Authorized -- 15,000,000 shares Outstanding -- 7,761,500 shares $ 344,250 $ 344,250 Paid-in capital 1,660,206 1,929,971 Premium on preferred stock 158 160 Retained earnings (See accompanying statement) (Note 9) 1,779,558 1,745,347 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total common stock equity 3,784,172 4,019,728 52.3 % 51.2 % - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Cumulative Preferred Stock, without par value: Authorized -- 55,000,000 shares Outstanding -- 511,834 shares at December 31, 1998 Outstanding -- 4,719,226 shares at December 31, 1997 $100 stated value -- 4.60% to 6.60% 51,183 52,355 Adjustable rate -- at January 1, 1998: 4.85% - 64,213 5.27% - 40,679 - - - - - - - -------------------------------------------------------------------------------------------------------------- Total cumulative preferred stock (annual dividend requirement -- $2,827,000) 51,183 157,247 Less amount due within one year (Note 9) 35,656 - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Cumulative preferred stock excluding amount due within one year 15,527 157,247 0.2 2.0 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Company Obligated Mandatorily Redeemable Preferred Securities (Note 9): $25 liquidation value -- 9% 100,000 100,000 $25 liquidation value -- 7.75% 225,000 225,000 $25 liquidation value -- 7.60% 175,000 175,000 $25 liquidation value -- 7.75% 189,250 189,250 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total (annual distribution requirement -- $54,404,000) 689,250 689,250 9.5 8.8 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Long-Term Debt: First mortgage bonds -- Maturity Interest Rates April 1, 1998 5 1/2% - 100,000 September 1, 1999 6 1/8% 195,000 195,000 March 1, 2000 6% 100,000 100,000 October 1, 2000 7% - 100,000 September 1, 2002 6 7/8% - 150,000 April 1, 2003 6 5/8% 200,000 200,000 August 1, 2003 6.35% 75,000 75,000 2004 through 2006 6.07% 10,000 10,000 2008 6 7/8% 50,000 50,000 2023 through 2025 7.55% to 7.95% 266,000 474,250 - - - - - - - --------------------------------------------------------------------------------------------------------------- Total first mortgage bonds 896,000 1,454,250 - - - - - - - --------------------------------------------------------------------------------------------------------------- Pollution control bonds -- (Note 9) Maturity Interest Rates -------- -------------- 2000 4.375% 50,000 50,000 2004-2005 5% to 5.375% 57,000 103,790 2011 Variable (4.0% at 1/1/99) 10,450 10,450 2018 6% 4,600 26,700 2019-2023 5.75% to 6.35% 140,560 144,660 2022-2023 Variable (4.0% to 5.05% at 1/1/99) 64,500 64,500 2024-2025 5.4% to 6.75% 440,325 457,325 2024-2028 Variable (3.10% to 5.20% at 1/1/99) 619,055 529,065 2029-2033 Variable (3.25% to 5.15% at 1/1/99) 234,700 234,700 2034 Variable (3.25% at 1/1/99) 50,000 50,000 - - - - - - - --------------------------------------------------------------------------------------------------------------- Total pollution control bonds 1,671,190 1,671,190 - - - - - - - ---------------------------------------------------------------------------------------------------------------
II-101
STATEMENTS OF CAPITALIZATION (continued) At December 31, 1998 and 1997 Georgia Power Company 1998 Annual Report =================================================================================================================================== 1998 1997 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Senior notes -- (Note 9) Maturity Interest Rates -------- -------------- December 1, 2005 5.50% 150,000 - December 31, 2038 6.60% 200,000 - December 31, 2047 6.875% 145,000 - - - - - - - - --------------------------------------------------------------------------------------------------------------- Total senior notes 495,000 - - - - - - - - --------------------------------------------------------------------------------------------------------------- Other long-term debt (Note 9) 86,280 86,675 Unamortized debt discount, net (4,679) (8,425) - - - - - - - --------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement -- $177,628,000) 3,143,791 3,203,690 Less amount due within one year (Note 9) 399,429 220,855 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 2,744,362 2,982,835 38.0 38.0 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total Capitalization $ 7,233,311 $ 7,849,060 100.0 % 100.0 % =================================================================================================================================== The accompanying notes are an integral part of these statements.
II-102
STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 Georgia Power Company 1998 Annual Report ================================================================================================================================== 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Period $ 1,745,347 $ 1,674,774 $ 1,569,905 Net income after dividends on preferred stock 570,228 593,996 580,327 Cash dividends on common stock (536,600) (520,000) (475,500) Preferred stock transactions, net 583 (3,423) 42 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Balance at End of Period (Note 9) $ 1,779,558 $ 1,745,347 $ 1,674,774 ================================================================================================================================== STATEMENTS OF PAID-IN CAPITAL For the Years Ended December 31, 1998, 1997, and 1996 Georgia Power Company 1998 Annual Report ================================================================================================================================== 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Period $ 1,929,971 $ 2,134,886 $ 2,384,444 Capital distribution to parent company (270,000) (205,000) (250,000) Contributions to capital by parent company 235 85 442 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Balance at End of Period $ 1,660,206 $ 1,929,971 $ 2,134,886 ================================================================================================================================== The accompanying notes are an integral part of these statements.
II-103 NOTES TO FINANCIAL STATEMENTS Georgia Power Company 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General The Company is a wholly owned subsidiary of Southern Company, which is the parent company of five operating companies, Southern Company Services (SCS), a system service company, Southern Communications Services (Southern LINC), Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), Southern Company Energy Solutions, and other direct and indirect subsidiaries. The operating companies (Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company) provide electric service in four Southeastern states. Contracts among the operating companies -- dealing with jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power -- are regulated by the Federal Energy Regulatory Commission (FERC) or the Securities and Exchange Commission (SEC). SCS provides, at cost, specialized services to Southern Company and subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Southern Energy designs, builds, owns, and operates power production and delivery facilities and provides a broad range of energy related services in the United States and international markets. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Company Energy Solutions develops new business opportunities related to energy products and services. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both Southern Company and its subsidiaries are subject to the regulatory provisions of this act. The Company is also subject to regulation by the FERC and the Georgia Public Service Commission (GPSC). The Company follows generally accepted accounting principles (GAAP) and complies with the accounting policies and practices prescribed by the respective regulatory commissions. The preparation of financial statements in conformity with GAAP requires the use of estimates, and the actual results may differ from these estimates. Regulatory Assets and Liabilities The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the Company associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Company's Balance Sheets at December 31 relate to the following: 1998 1997 ---------------------- (in millions) Deferred income taxes $ 604 $ 688 Deferred income tax credits (284) (298) Premium on reacquired debt 174 167 Corporate building lease 53 52 Deferred Plant Vogtle costs - 50 Vacation pay 44 41 Postretirement benefits 36 38 Department of Energy assessments 26 29 Deferred nuclear outage costs 24 28 Demand-side program costs - 11 Other, net 12 10 - - - - - - - --------------------------------------------------------------- Total $ 689 $ 816 =============================================================== In the event that a portion of the Company's operations is no longer subject to the provisions of Statement No. 71, the Company would be required to write off related net regulatory assets and liabilities that are not specifically recoverable through regulated rates. In addition, the Company would be required to determine if any impairment to other assets exists, including plant, and write down the assets, if impaired, to their fair value. 11-104 NOTES (continued) Georgia Power Company 1998 Annual Report Revenues and Fuel Costs The Company currently operates as a vertically integrated utility providing electricity to retail customers within its traditional service area located within the state of Georgia, and to wholesale customers in the Southeast. Revenues by type of service were as follows: 1998 1997 1996 -------------------------------- (in millions) Retail $4,298 $3,978 $4,023 Non-affiliated wholesale 260 283 282 Other 99 86 76 - - - - - - - --------------------------------------------------------------- Total $4,657 $4,347 $4,381 =============================================================== The Company accrues revenues for service rendered but unbilled at the end of each fiscal period. Fuel costs are expensed as the fuel is used. The Company's electric rates include provisions to adjust billings for fluctuations in fuel costs, energy component of purchased power costs, and certain other costs. Revenues are adjusted for differences between recoverable fuel costs and amounts actually recovered in current rates. The Company has a diversified base of customers. No single customer or industry comprises 10 percent or more of revenues. For all periods presented, uncollectible accounts averaged less than 1 percent of revenues. Fuel expense includes the amortization of the cost of nuclear fuel and a charge, based on nuclear generation, for the permanent disposal of spent nuclear fuel. Total charges for nuclear fuel included in fuel expense amounted to $74 million in 1998, $76 million in 1997, and $78 million in 1996. The Company has a contract with the U.S. Department of Energy (DOE) that provides for the permanent disposal of spent nuclear fuel. The DOE failed to begin disposing of spent fuel in January 1998 as required by the contracts, and the Company is pursuing legal remedies against the government for breach of contract. Sufficient storage capacity currently is available to permit operation into 2003 at Plant Hatch and into 2017 at Plant Vogtle. Plant Vogtle's spent fuel storage capacity includes the installation in 1998 of additional rack capacity. Activities for adding dry cask storage capacity at Plant Hatch by as early as 1999 are in progress. Also, the Energy Policy Act of 1992 required the establishment in 1993 of a Uranium Enrichment Decontamination and Decommissioning Fund, which is to be funded in part by a special assessment on utilities with nuclear plants. This fund will be used by the DOE for the decontamination and decommissioning of its nuclear fuel enrichment facilities. The assessment will be paid over a 15-year period, which began in 1993. The law provides that utilities will recover these payments in the same manner as any other fuel expense. The Company -- based on its ownership interests -- estimates its remaining liability under this law at December 31, 1998, to be approximately $24 million. This obligation is recorded in the accompanying Balance Sheets. Depreciation and Nuclear Decommissioning Depreciation of the original cost of depreciable utility plant in service is provided primarily by using composite straight-line rates, which approximated 3.2 percent in 1998 and 3.1 percent in 1997 and 1996. In addition, the Company recorded accelerated depreciation of electric plant of $316 million in 1998, $159 million in 1997, and $24 million in 1996. The amount of such charges in the accumulated provision for depreciation is $505 million at December 31, 1998. See Note 3 under "Retail Rate Order" for additional information. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost -- together with the cost of removal, less salvage -- is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Depreciation expense includes an amount for the expected costs of decommissioning nuclear facilities and removal of other facilities. Nuclear Regulatory Commission (NRC) regulations require all licensees operating commercial nuclear power reactors to establish a plan for providing, with reasonable assurance, funds for decommissioning. The Company has established external trust funds to comply with the NRC's regulations. Amounts previously recorded in internal reserves are being transferred into the external trust funds over a set period of time as ordered by the GPSC. Earnings on the trust funds are considered in determining decommissioning expense. The NRC's minimum external funding requirements are based on a generic estimate of the cost to decommission the radioactive portions of a nuclear unit based on the size and type of reactor. The Company has filed plans with the NRC to ensure that -- over time -- the deposits and earnings of the external trust funds will provide the minimum funding amounts prescribed by the NRC. 11-105 NOTES (continued) Georgia Power Company 1998 Annual Report Site study cost is the estimate to decommission the facility as of the site study year, and ultimate cost is the estimate to decommission the facility as of its retirement date. The estimated site study costs based on the most current study and ultimate costs assuming an inflation rate of 3.6% for the Company's ownership interests are as follows: Plant Plant Hatch Vogtle -------------------- Site study basis (year) 1997 1997 Decommissioning periods: Beginning year 2014 2027 Completion year 2027 2038 - - - - - - - ------------------------------------------------------------- (in millions) Site study costs: Radiated structures $372 $317 Non-radiated structures 33 44 - - - - - - - ------------------------------------------------------------- Total $405 $361 ============================================================= (in millions) Ultimate costs: Radiated structures $722 $ 922 Non-radiated structures 65 129 - - - - - - - ------------------------------------------------------------- Total $787 $1,051 ============================================================= The decommissioning cost estimates are based on prompt dismantlement and removal of the plant from service. The actual decommissioning costs may vary from the above estimates because of changes in the assumed date of decommissioning, changes in NRC requirements, changes in the assumptions used in making estimates, changes in regulatory requirements, changes in technology, and changes in costs of labor, materials, and equipment. Annual provisions for nuclear decommissioning expense are based on an annuity method as approved by the GPSC. The amounts expensed in 1998 and fund balance as of December 31, 1998 were: Plant Plant Hatch Vogtle - - - - - - - ------------------------------------------------------------- (in millions) Amount expensed in 1998 $ 11 $ 9 - - - - - - - ------------------------------------------------------------- Accumulated provisions: Balance in external trust funds $172 $112 Balance in internal reserves 19 12 - - - - - - - ------------------------------------------------------------- Total $191 $124 ============================================================= Effective January 1, 1999, the GPSC increased the annual provision for decommissioning expenses to $26 million. This amount is based on the NRC generic estimate to decommission the radioactive portion of the facilities as of 1997 of $526 million and $438 million for plants Hatch and Vogtle, respectively. The ultimate costs associated with the 1997 NRC minimum funding requirements are $1.1 billion and $1.3 billion for plants Hatch and Vogtle, respectively. Significant assumptions include an estimated inflation rate of 3.6% and an estimated trust earnings rate of 6.5%. The Company expects the GPSC to periodically review and adjust, if necessary, the amounts collected in rates for the anticipated cost of decommissioning. Income Taxes The Company uses the liability method of accounting for deferred income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. Plant Vogtle Phase-In Plans In 1987 and 1989, the GPSC ordered that the allowed costs of Plant Vogtle, a two-unit nuclear facility of which Georgia Power owns 45.7 percent, be phased into rates. Pursuant to the orders, the Company recorded a deferred return under phase-in plans until October 1991 when the allowed investment was fully reflected in rates. In 1991, the GPSC levelized the remaining Plant Vogtle declining capacity buyback expenses over a six-year period. In addition, the Company deferred certain Plant Vogtle operating expenses and financing costs under accounting orders issued by the GPSC. These GPSC orders provided for the recovery of deferred costs within 10 years. Costs deferred under the 1987 order and the levelized buybacks were fully recovered as of September 1997. Under a December 18, 1998 retail rate order from the GPSC, the remaining deferred costs were fully amortized to expense in December 1998. See Note 3 under "Retail Rate Order" for additional information. Allowance for Funds Used During Construction (AFUDC) AFUDC represents the estimated debt and equity costs of capital funds that are necessary to finance the construction of new facilities. While cash is not 11-106 NOTES (continued) Georgia Power Company 1998 Annual Report realized currently from such allowance, it increases the revenue requirement over the service life of the plant through a higher rate base and higher depreciation expense. For the years 1998, 1997 and 1996, the average AFUDC rates were 6.71 percent, 7.60 percent and 6.59 percent, respectively. AFUDC, net of taxes, as a percentage of net income after dividends on preferred stock, was less than 2.0 percent for 1998, 1997, and 1996. Utility Plant Utility plant is stated at original cost, less regulatory disallowances. Original cost includes: materials; labor; payroll-related costs such as taxes, pensions, and other benefits; and the cost of funds used during construction. The cost of maintenance, repairs, and replacement of minor items of property is charged to maintenance expense. The cost of replacements of property (exclusive of minor items of property) is charged to utility plant. Cash and Cash Equivalents For purposes of the financial statements, temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. Financial Instruments The Company's financial instruments for which the carrying amounts did not approximate fair value at December 31 were as follows: Carrying Fair Amount Value ------------------------ Long-term debt: (in millions) At December 31, 1998 $3,058 $3,105 At December 31, 1997 3,125 3,170 Preferred securities: At December 31, 1998 689 716 At December 31, 1997 689 720 - - - - - - - -------------------------------------------------------------- The fair values for securities were based on either closing market prices or closing prices of comparable instruments. Materials and Supplies Generally, materials and supplies include the cost of transmission, distribution and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when installed. 2. RETIREMENT BENEFITS The Company has defined benefit, trusteed pension plans that cover substantially all employees. The Company provides certain medical care and life insurance benefits for retired employees. Substantially all these employees may become eligible for such benefits when they retire. The Company funds trusts to the extent deductible under federal income tax regulations or to the extent required by the GPSC and FERC. In 1998, the Company adopted FASB Statement No. 132, Employers' Disclosure about Pensions and Other Postretirement Benefits. The measurement date is September 30 of each year. The weighted average rates assumed in the actuarial calculations for both the pension and postretirement benefit plans were: 1998 1997 - - - - - - - ----------------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25 5.00 Expected long-term return on plan assets 8.50 8.50 - - - - - - - ----------------------------------------------------------------- Pension Plan Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $1,119 $1,172 Service cost 30 30 Interest cost 82 82 Benefits paid (55) (42) Actuarial (gain) loss and employee transfers 41 (123) - - - - - - - ---------------------------------------------------------------- Balance at end of year $1,217 $1,119 ================================================================ Plan Assets --------------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $1,931 $1,797 Actual return on plan assets 11 338 Benefits paid (55) (42) Employee transfers (28) (162) - - - - - - - ---------------------------------------------------------------- Balance at end of year $1,859 $1,931 ================================================================ 11-107 NOTES (continued) Georgia Power Company 1998 Annual Report The accrued pension costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Funded status $ 642 $ 812 Unrecognized transition obligation (35) (39) Unrecognized prior service cost 45 48 Unrecognized net actuarial gain (548) (753) - - - - - - - --------------------------------------------------------------- Prepaid asset recognized in the Balance Sheets $ 104 $ 68 =============================================================== Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Service cost $ 30 $ 30 $ 35 Interest cost 82 82 86 Expected return on plan assets (127) (121) (124) Recognized net actuarial gain (20) (18) (14) Net amortization (1) (1) (2) - - - - - - - --------------------------------------------------------------- Net pension income $ (36) $ (28) $ (19) =============================================================== Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $ 435 $ 430 Service cost 7 7 Interest cost 32 32 Benefits paid (16) (13) Actuarial loss and employee transfers 6 (21) - - - - - - - ---------------------------------------------------------------- Balance at end of year $ 464 $ 435 ================================================================ Plan Assets --------------------------- 1998 1997 - - - - - - - ---------------------------------------------------------------- (in millions) Balance at beginning of year $122 $112 Actual return on plan assets 4 9 Employer contributions 40 14 Benefits paid (16) (13) - - - - - - - ---------------------------------------------------------------- Balance at end of year $150 $122 ================================================================ The accrued postretirement costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in millions) Funded status $ (314) $ (313) Unrecognized transition obligation 131 139 Unrecognized net actuarial loss 57 47 Fourth quarter contributions 19 29 - - - - - - - --------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $ (107) $ (98) =============================================================== Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- (in millions) Service cost $ 7 $ 7 $ 9 Interest cost 32 32 30 Expected return on plan assets (9) (7) (5) Recognized net actuarial loss 1 1 2 Net amortization 9 9 9 - - - - - - - --------------------------------------------------------------- Net postretirement cost $ 40 $ 42 $ 45 =============================================================== An additional assumption used in measuring the accumulated postretirement benefit obligations was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005, and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would affect the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows: 1 Percent 1 Percent Increase Decrease - - - - - - - --------------------------------------------------------------- (in millions) Benefit obligation $ 38 $ (32) Service and interest costs 3 (3) =============================================================== 3. REGULATORY AND LITIGATION MATTERS Retail Rate Order As required by the GPSC, the Company filed a general rate case in 1998. On December 18, 1998, the GPSC approved a new three-year rate order for the Company. Under terms of the order, earnings will continue to be evaluated against a retail return on common equity range of 10 percent to 12.5 percent. Retail rates will be decreased by $262 million on an annual basis effective January 1, 1999, and by an additional $24 million effective January 1, 2000. The II-108 NOTES (continued) Georgia Power Company 1998 Annual Report order further provides for $85 million in each year, plus up to $50 million of any earnings in excess of the 12.5 percent return during the second and third years, to be applied to accelerated amortization or depreciation of assets. Two-thirds of any additional earnings in excess of the 12.5 percent return will be applied to rate reductions, with the remaining one-third retained by the Company. The Company will not file for a general base rate increase unless its projected retail return on common equity falls below 10 percent, and will be required to file a general rate case on July 1, 2001, in response to which the GPSC would be expected to determine whether the rate order should be continued, modified, or discontinued. Under a previous three-year accounting order ending December 1998, the Company's earnings were evaluated against a retail return on common equity range of 10 percent to 12.5 percent. Earnings in excess of 12.5 percent were used to accelerate the amortization of regulatory assets or depreciation of electric plant. The Company was required to absorb cost increases of approximately $29 million annually during the order's three-year operation, including $14 million annually of accelerated depreciation of electric plant. The Company's 1996 retail return on common equity was within the 10 percent to 12.5 percent range. During 1998 and 1997, for earnings in excess of the 12.5 percent retail return, the Company recorded charges of $292 million and $135 million, respectively, that are presented in the financial statements as depreciation expense of electric plant and as an addition to the accumulated provision for depreciation. FERC Review of Equity Returns On September 21, 1998, the FERC entered separate orders affirming the outcome of the administrative law judge's opinions in two proceedings in which the return on common equity component of formula rates contained in substantially all of the operating companies' wholesale power contracts was being challenged as unreasonably high. These orders resulted in no change in the wholesale power contracts that were the subject of such proceedings. The FERC also dismissed a complaint filed by three customers under long-term power sales agreements seeking to lower the equity return component in such agreements. These customers have filed applications for rehearing regarding each FERC order. In response to a requirement of the September 1998 FERC order, Southern Company filed a new equity return component on the long-term power sales contracts, to be effective January 5, 1999. The proposed equity return was lowered from 13.75 percent to 12.50 percent. If the filed return is approved, annual revenues will decrease by approximately $1 million. The FERC placed the new rates into effect, subject to refund. Also, this filing was consolidated with the new proceeding discussed below. On December 28, 1998, the FERC staff filed a motion asking the FERC to initiate a new proceeding regarding the equity return and other issues involving the Company's formula rate contracts. The motion was submitted pursuant to review procedures applicable to theses contracts, and would be applicable to billings under such contracts on and after January 1, 1999. Rocky Mountain Plant Status In its 1985 financing order, the GPSC concluded that completion of the Rocky Mountain pumped storage hydroelectric plant in 1991, as then planned, was not economically justifiable and reasonable and withheld authorization for the Company to spend funds from approved securities issuances on that plant. In 1988, the Company and Oglethorpe Power Corporation (OPC) entered into a joint ownership agreement for OPC to assume responsibility for the construction and operation of the plant, as discussed in Note 6. In 1995, the plant went into commercial operation. In June 1996, the GPSC initiated a review of the plant. On January 14, 1998, the GPSC ordered that the Company be allowed approximately $108 million of its $142 million investment in the plant in rate base as of December 31, 1998. The Company appealed the GPSC's order to the Superior Court of Fulton County, Georgia. Under the rate order approved by the GPSC on December 18, 1998, the Company voluntarily dismissed the appeal. As a result, in December 1998, the Company recorded a charge to earnings of $21 million, after taxes, associated with the write-down of the plant. Tax Litigation In August 1997, Southern Company and the Internal Revenue Service (IRS) entered into a settlement agreement related to tax issues for the years 1984 through 1987. The agreement received final approval by the Joint Congressional Committee on Taxation in June 1998 and as a result, the Company recognized interest income in 1998 of $69 million. The refund by the IRS has been made and this matter is now concluded. 11-109 NOTES (continued) Georgia Power Company 1998 Annual Report Additionally, the Company received a refund from the State of Georgia pertaining to the same issues and recognized an additional $4 million in interest income in 1998. Demand-Side Conservation Programs In August 1995, the GPSC ordered the Company to discontinue its current demand-side conservation programs by the end of 1995. Rate riders previously approved by the GPSC for recovery of the Company's costs incurred in connection with these programs remained in effect until January 1998 when costs deferred were fully collected. Under a GPSC accounting order approved February 16, 1996, the Company recognized approximately $29 million of deferred program costs over a three-year period ending December 1998, which were not recovered through the riders. Certain Environmental Contingencies In January 1995, the Company and four other unrelated entities were notified by the EPA that they have been designated as potentially responsible parties under the Comprehensive Environmental Response, Compensation and Liability Act with respect to a site in Brunswick, Georgia. As of December 31, 1998, the Company has recognized approximately $5 million in cumulative expenses associated with this site. This represents the Company's agreed upon share of removal and remedial investigation and feasibility study costs. The final outcome of this matter cannot now be determined. However, based on the nature and extent of the Company's activities relating to the site, management believes that the Company's portion of any remaining remediation costs should not be material. In compliance with the Georgia Hazardous Site Response Act of 1993, the State of Georgia was required to compile an inventory of all known or suspected sites where hazardous wastes, constituents or substances have been disposed of or released in quantities deemed reportable by the State. In developing this list, the State identified several hundred properties throughout the State, including 26 sites which may require environmental remediation that were either previously or are currently owned by the Company. The majority of these sites are electrical power substations and power generation facilities. The Company has remediated nine electrical substations on the list at a cumulative cost of approximately $3 million. The State has removed from the list one power generation facility following the assessment which indicated no remediation was necessary. In addition, the Company has recognized approximately $23 million in cumulative expenses through December 31, 1998 for the assessment of the remaining sites on the list and the anticipated clean-up cost for 11 sites that the Company plans to remediate. Any cost of remediating the remaining sites cannot presently be determined until such studies are completed for each site and the State of Georgia determines whether remediation is required. If all listed sites were required to be remediated, the Company could incur expenses of up to approximately $10 million in additional clean-up costs and construction expenditures of up to approximately $56 million to develop new waste management facilities or install additional pollution control devices. The accrued costs for environmental remediation obligations are not discounted to their present value. Nuclear Performance Standards The GPSC has adopted a nuclear performance standard for the Company's nuclear generating units under which the performance of plants Hatch and Vogtle will be evaluated every three years. The performance standard is based on each unit's capacity factor as compared to the average of all comparable U.S. nuclear units operating at a capacity factor of 50 percent or higher during the three-year period of evaluation. Depending on the performance of the units, the Company could receive a monetary award or penalty under the performance standards criteria. The first evaluation was conducted in 1993 for performance during the 1990-92 period. The GPSC approved a performance award of approximately $8.5 million for the Company. This award was collected through the retail fuel cost recovery provision and recognized in income over a 36-month period which ended in October 1996. In January 1997, the GPSC approved a performance award of approximately $11.7 million for performance during the 1993-95 period. This award is being collected through the retail fuel cost recovery provision and recognized in income over a 36-month period that began in January 1997. 11-110 NOTES (continued) Georgia Power Company 1998 Annual Report 4. COMMITMENTS Construction Program While the Company has no traditional baseload generating plants under construction, the construction of eight combustion turbine peaking units is planned to be completed by 2000. In addition, significant construction of transmission and distribution facilities, and projects to upgrade and extend the useful life of generating plants and to remain in compliance with environmental requirements will continue. The Company currently estimates property additions to be approximately $755 million in 1999, $734 million in 2000, and $829 million in 2001. The construction program is subject to periodic review and revision, and actual construction costs may vary from estimates because of numerous factors, including, but not limited to, changes in business conditions, load growth estimates, environmental regulations, and regulatory requirements. Fuel Commitments To supply a portion of the fuel requirements of its generating plants, the Company has entered into various long-term commitments for the procurement of fossil and nuclear fuel. In most cases, these contracts contain provisions for price escalations, minimum purchase levels and other financial commitments. Total estimated long-term fossil and nuclear fuel commitments at December 31, 1998 were as follows: Minimum Year Obligations ---------------------- (in millions) 1999 $ 642 2000 545 2001 483 2002 414 2003 366 2004 and beyond 719 - - - - - - - ---------------------------------------------------------------- Total minimum obligations $3,169 ================================================================ Additional commitments for coal and for nuclear fuel will be required in the future to supply the Company's fuel needs. Purchased Power Commitments In connection with the joint ownership arrangement for Plant Vogtle, discussed in Note 6, the Company has made commitments to purchase portions of OPC's and the Municipal Electric Authority of Georgia's (MEAG's) capacity and energy from this plant. Declining commitments were in effect during periods of up to seven years following commercial operation and ended in 1996. In addition, the Company has commitments regarding a portion of a 5 percent interest in Plant Vogtle owned by MEAG that are in effect until the latter of the retirement of the plant or the latest stated maturity date of MEAG's bonds issued to finance such ownership interest. The payments for capacity are required whether or not any capacity is available. The energy cost is a function of each unit's variable operating costs. Except as noted below, the cost of such capacity and energy is included in purchased power from non-affiliates in the Company's Statements of Income. Capacity payments totaled $56 million, $54 million, and $68 million in 1998, 1997, and 1996, respectively. The current projected Plant Vogtle capacity payments are: Year Amounts ---------------------- (in millions) 1999 $ 59 2000 62 2001 61 2002 60 2003 60 2004 and beyond 711 - - - - - - - ---------------------------------------------------------------- Total $ 1,013 ================================================================ Portions of the payments noted above relate to costs in excess of Plant Vogtle's allowed investment for ratemaking purposes. The present value of these portions was written off in 1987 and 1990. The Company and an affiliate, Alabama Power Company, own equally all of the outstanding capital stock of Southern Electric Generating Company (SEGCO), which owns electric generating units with a total rated capacity of 1,020 megawatts, as well as associated transmission facilities. The capacity of the units has been sold equally to the Company and Alabama Power Company under a contract which, in substance, requires payments sufficient to provide for the operating expenses, taxes, debt service and return on investment, whether or not SEGCO has any capacity and energy available. The term of the contract extends II-111 NOTES (continued) Georgia Power Company 1998 Annual Report automatically for two-year periods, subject to either party's right to cancel upon two year's notice. The Company's share of expenses included in purchased power from affiliates in the Statements of Income, is as follows: 1998 1997 1996 --------------------------------- (in millions) Energy $45 $45 $47 Capacity 30 30 30 - - - - - - - -------------------------------------------------------------- Total $75 $75 $77 ============================================================== Kilowatt-hours 3,146 3,038 2,780 - - - - - - - -------------------------------------------------------------- At December 31, 1998, the capitalization of SEGCO consisted of $49 million of equity and $70 million of long-term debt on which the annual interest requirement is $4 million. The Company has entered into other various long-term commitments for the purchase of electricity. Total long-term obligations at December 31, 1998 were as follows: Year Amounts ---------------------- (in millions) 1999 $ 18 2000 21 2001 22 2002 23 2003 23 2004 and beyond 363 - - - - - - - ---------------------------------------------------------------- Total $ 470 ================================================================ Operating Leases The Company has entered into coal rail car rental agreements with various terms and expiration dates. These expenses totaled $13 million for 1998, and $11 million each for 1997 and 1996. At December 31, 1998, estimated minimum rental commitments for these noncancelable operating leases were as follows: Year Amounts ---------------------- (in millions) 1999 $ 11 2000 11 2001 11 2002 12 2003 12 2004 and beyond 120 - - - - - - - ---------------------------------------------------------------- Total $177 ================================================================ 5. NUCLEAR INSURANCE Under the Price-Anderson Amendments Act of 1988, the Company maintains agreements of indemnity with the NRC that, together with private insurance, cover third-party liability arising from any nuclear incident occurring at the Company's nuclear power plants. The act provides funds up to $9.7 billion for public liability claims that could arise from a single nuclear incident. Each nuclear plant is insured against this liability to a maximum of $200 million by private insurance, with the remaining coverage provided by a mandatory program of deferred premiums that could be assessed, after a nuclear incident, against all owners of nuclear reactors. The Company could be assessed up to $88 million per incident for each licensed reactor it operates but not more than an aggregate of $10 million per incident to be paid in a calendar year for each reactor. Such maximum assessment for the Company, excluding any applicable state premium taxes, -- based on its ownership and buyback interests -- is $178 million per incident but not more than an aggregate of $20 million to be paid for each incident in any one year. The Company is a member of Nuclear Electric Insurance Limited (NEIL), a mutual insurer established to provide property damage insurance in an amount up to $500 million for members' nuclear generating facilities. Additionally, the Company has policies that currently provide decontamination, excess property insurance, and premature decommissioning coverage up to $2.25 billion for losses in excess of the $500 million primary coverage. This excess insurance is also provided by NEIL. NEIL also covers the additional costs that would be incurred in obtaining replacement power during a prolonged accidental outage at a member's nuclear plant. Members can be insured against increased costs of replacement power in an amount up to $3.5 million per week -- starting 17 weeks after the outage -- for one year and up to $2.8 million per week for the second and third years. Under each of the NEIL policies, members are subject to assessments if losses each year exceed the accumulated funds available to the insurer under that policy. The current maximum annual assessments for the Company under the three NEIL policies would be $25 million. For all on-site property damage insurance policies for commercial nuclear II-112 NOTES (continued) Georgia Power Company 1998 Annual Report power plants, the NRC requires that the proceeds of such policies issued or renewed on or after April 2, 1991, shall be dedicated first for the sole purpose of placing the reactor in a safe and stable condition after an accident. Any remaining proceeds are to be applied next toward the costs of decontamination and debris removal operations ordered by the NRC, and any further remaining proceeds are to be paid either to the Company or to its bond trustees as may be appropriate under the policies and applicable trust indentures. All retrospective assessments, whether generated for liability, property or replacement power, may be subject to applicable state premium taxes. 6. FACILITY SALES AND JOINT OWNERSHIP AGREEMENTS The Company has sold undivided interests in plants Hatch, Wansley, Vogtle, and Scherer Units 1 and 2 to OPC, an electric membership generation and transmission corporation; MEAG, a public corporation and an instrumentality of the state of Georgia; and the City of Dalton, Georgia. The Company has sold an interest in Plant Scherer Unit 3 to Gulf Power Company, an affiliate. Additionally, the Company has sold 76.4 percent of Plant Scherer Unit 4 to Florida Power & Light Company (FP&L) and the remaining 23.6 percent to Jacksonville Electric Authority (JEA). The Company has also sold transmission facilities to Georgia Transmission Corporation (formerly OPC's transmission division), MEAG, and the City of Dalton. Except as otherwise noted, the Company has contracted to operate and maintain all jointly owned facilities. The Company includes its proportionate share of plant operating expenses in the corresponding operating expenses in the Statements of Income. The Company owns 25.4 percent of the Rocky Mountain pumped storage hydroelectric plant. OPC owns the remainder, and is the operator of the plant. The Company owns six of eight 80 megawatt combustion turbine generating units and 75 percent of the related common facilities at Plant McIntosh. Savannah Electric and Power Company, an affiliate, owns the remainder and operates the plant. The Company and Florida Power Corporation (FPC) jointly own a combustion turbine unit at Intercession City, Florida, near Orlando. The unit began commercial operation in January 1997, and is operated by FPC. The Company owns a one-third interest in the unit, with use of 100 percent of the unit's capacity from June through September. FPC has the capacity the remainder of the year. At December 31, 1998, the Company's percentage ownership and investment (exclusive of nuclear fuel) in jointly owned facilities in commercial operation, were as follows: Company Accumulated Facility (Type) Ownership Investment Depreciation - - - - - - - -------------------------------------------------------------------- (in millions) Plant Vogtle (nuclear) 45.7% $3,296* $1,514 Plant Hatch (nuclear) 50.1 840 538 Plant Wansley (coal) 53.5 298 141 Plant Scherer (coal) Units 1 and 2 8.4 112 48 Unit 3 75.0 545 179 Plant McIntosh Common Facilities 75.0 19 1 (combustion-turbine) Rocky Mountain 25.4 169* 61 (pumped storage) Intercession City 33.3 12 ** (combustion-turbine) - - - - - - - -------------------------------------------------------------------- * Investment net of write-offs. ** Less than $1 million. 7. LONG-TERM POWER SALES AGREEMENTS The Company and the operating subsidiaries of Southern Company have long-term contractual agreements for the sale of capacity and energy to non-affiliated utilities located outside the system's service area. These agreements consist of firm unit power sales pertaining to capacity from specific generating units. Because energy is generally sold at cost under these agreements, it is primarily the capacity revenues that affect the Company's profitability. The Company's capacity revenues were as follows: Year Revenues Capacity ------------------------------------- (in millions) (megawatts) 1998 $ 32 162 1997 42 159 1996 41 173 ------------------------------------- Unit power from specific generating plants is being sold to FP&L, FPC, JEA, and the City of Tallahassee, Florida. Under these agreements, the Company sold approximately 162 megawatts of capacity in 1998 and is scheduled to sell approximately 162 megawatts of capacity in 1999. In 2000, 129 megawatts will be sold. After 2000, capacity sales will decline to approximately 105 megawatts -- unless reduced by FP&L, FPC, and JEA -- until the expiration of the contracts in 2010. II-113 NOTES (continued) Georgia Power Company 1998 Annual Report 8. INCOME TAXES At December 31, 1998, tax-related regulatory assets were $604 million and tax-related regulatory liabilities were $284 million. The assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. The liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of the federal and state income tax provisions are as follows: 1998 1997 1996 ------------------------------- Total provision for income taxes: (in millions) Federal: Currently payable $ 415 $352 $325 Deferred - Current year 131 49 70 Reversal of prior years (218) (68) (41) Deferred investment tax credits 7 - - - - - - - - - ----------------------------------------------------------------- 335 333 354 - - - - - - - ----------------------------------------------------------------- State: Currently payable 77 65 56 Deferred - Current year 18 8 12 Reversal of prior years (31) (11) (5) - - - - - - - ----------------------------------------------------------------- 64 62 63 - - - - - - - ----------------------------------------------------------------- Total 399 395 417 - - - - - - - ----------------------------------------------------------------- Less: Income taxes credited to other income (8) (32) (19) - - - - - - - ----------------------------------------------------------------- Total income taxes charged to operations $ 407 $427 $436 ================================================================= The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities, are as follows: 1998 1997 ------------------- (in millions) Deferred tax liabilities: Accelerated depreciation $1,670 $1,732 Property basis differences 854 968 Other 158 142 - - - - - - - ---------------------------------------------------------------- Total 2,682 2,842 - - - - - - - ---------------------------------------------------------------- Deferred tax assets: Other property basis differences 211 216 Federal effect of state deferred taxes 95 99 Other deferred costs 96 83 Disallowed Plant Vogtle buybacks 23 23 Other 21 14 - - - - - - - ---------------------------------------------------------------- Total 446 435 - - - - - - - ---------------------------------------------------------------- Net deferred tax liabilities 2,236 2,407 Portion included in current assets 13 11 - - - - - - - ---------------------------------------------------------------- Accumulated deferred income taxes in the Balance Sheets $2,249 $2,418 ================================================================ Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation in the Statements of Income. Credits amortized in this manner amounted to $22 million in 1998, $15 million in 1997, and $17 million in 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. A reconciliation of the federal statutory tax rate to the effective income tax rate is as follows: 1998 1997 1996 -------------------------- Federal statutory rate 35% 35% 35% State income tax, net of federal deduction 4 4 4 Non-deductible book depreciation 6 4 3 Other (4) (4) (2) - - - - - - - --------------------------------------------------------------- Effective income tax rate 41% 39% 40% =============================================================== Southern Company and its subsidiaries file a consolidated federal income tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. II-114 NOTES (continued) Georgia Power Company 1998 Annual Report 9. CAPITALIZATION First Mortgage Bond Indenture & Charter Restrictions The Company historically has relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for its benefit by public authorities, to meet its long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. In this regard, the Company sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness it may incur. The Company's first mortgage bond indenture contains various restrictions that remain in effect as long as the bonds are outstanding. At December 31, 1998, $883 million of retained earnings and paid-in capital was unrestricted for the payment of cash dividends or any other distributions under terms of the mortgage indenture. If additional first mortgage bonds are issued, supplemental indentures in connection with those issues may contain more stringent restrictions than those currently in effect. Preferred Securities In December 1994, Georgia Power Capital, L.P., of which the Company is the sole general partner, issued $100 million of 9 percent mandatorily redeemable preferred securities. Substantially all of the assets of Georgia Power Capital, L.P., are $103 million aggregate principal amount of Georgia Power's 9 percent Junior Subordinated Deferrable Interest Debentures due December 19, 2024. Statutory business trusts formed by the Company, of which the Company owns all the common securities, have issued mandatorily redeemable preferred securities as follows: Date of Maturity Issue Amount Rate Notes Date --------------------------------------------------- (millions) (millions) Trust I 8/1996 $225.00 7.75% $232 6/2036 Trust II 1/1997 175.00 7.60% 180 12/2036 Trust III 6/1997 189.25 7.75% 195 3/2037 Substantially all of the assets of each trust are junior subordinated notes issued by the Company in the respective approximate principal amounts set forth above. In February 1999, the Company issued an additional $200 million of mandatorily redeemable preferred securities (Trust IV), bearing interest at 6.85 percent. The associated junior subordinated notes will be due March 31, 2029. The Company considers that the mechanisms and obligations relating to the preferred securities, taken together, constitute a full and unconditional guarantee by the Company of Georgia Power Capital, L.P.'s and the Trusts' payment obligations with respect to the preferred securities. Georgia Power Capital, L.P., and the Trusts are subsidiaries of the Company, and accordingly are consolidated in the Company's financial statements. Pollution Control Bonds The Company has incurred obligations in connection with the sale by public authorities of tax-exempt pollution control revenue bonds. The Company has authenticated and delivered to trustees an aggregate of $1.2 billion of its first mortgage bonds, which are pledged as security for its obligations under pollution control revenue contracts. No interest on these first mortgage bonds is payable unless and until a default occurs on the installment purchase or loan agreements. Senior Notes In January, November, and December 1998, the Company issued unsecured senior notes. The senior notes are, in effect, subordinated to all secured debt of the Company, including its first mortgage bonds. Bank Credit Arrangements At the beginning of 1999, the Company had unused credit arrangements with banks totaling $1.3 billion, of which $722 million expires at various times during 1999, $30 million expires at May 1, 2000, and $500 million expires at April 24, 2003. Of the total $1.3 billion in unused credit, $1 billion is a syndicated credit arrangement with $500 million expiring April 23, 1999 and $500 million expiring April 24, 2003. Both agreements provide the option of converting borrowings into two-year term loans upon expiration date. The agreements contain stated borrowing rates but also allow for competitive bid loans. In addition, the agreements require payment of commitment fees based on the unused portions of the commitments. Annual fees are also paid to the agent bank. II-115 NOTES (continued) Georgia Power Company 1998 Annual Report Approximately $162 million of the $722 million arrangements expiring during 1999 allow for two-year term loans executable upon expiration date of the credit facilities. The $30 million credit arrangement expiring at May 1, 2000 allows for term loans of up to three years. All of the arrangements include stated borrowing rates but also allow for negotiated rates. These agreements also require payment of commitment fees based on the unused portion of the commitments or the maintenance of compensating balances with the banks. These balances are not legally restricted from withdrawal. The $1.3 billion in unused credit arrangements provide liquidity support to the Company's variable rate pollution control bonds. The amount of variable rate pollution control bonds outstanding as of December 31, 1998 was $979 million. In addition, the Company borrows under uncommitted lines of credit with banks and through a $225 million commercial paper program that has the liquidity support of committed bank credit arrangements. Average compensating balances held under these committed facilities were not material in 1998. Other Long-Term Debt Assets acquired under capital leases are recorded in the Balance Sheets as utility plant in service, and the related obligations are classified as long-term debt. At December 31, 1998 and 1997, the Company had a capitalized lease obligation for its corporate headquarters building of $87 million with an interest rate of 8.1 percent. The lease agreement provides for payments that are minimal in early years and escalate through the first 21 years of the lease. For ratemaking purposes, the GPSC has treated the lease as an operating lease and has allowed only the lease payments in cost of service. The difference between the accrued expense and the lease payments allowed for ratemaking purposes is being deferred as a cost to be recovered in the future as ordered by the GPSC. At December 31, 1998 and 1997, the interest and lease amortization deferred on the Balance Sheets are $53 million and $52 million, respectively. Assets Subject to Lien The Company's mortgage dated as of March 1, 1941, as amended and supplemented, securing the first mortgage bonds issued by the Company, constitutes a direct lien on substantially all of the Company's fixed property and franchises. Securities Due Within One Year A summary of the improvement fund requirements and scheduled maturities and redemptions of securities due within one year at December 31 is as follows: 1998 1997 ------------------- (in millions) Bond improvement fund requirements $ 9 $ 15 Less: Portion to be satisfied by certifying property additions - - - - - - - - - ---------------------------------------------------------------- Cash requirements 9 15 First mortgage bond maturities and redemptions 390 205 - - - - - - - ---------------------------------------------------------------- Total long-term debt 399 220 Preferred stock 36 - - - - - - - - ---------------------------------------------------------------- Total $435 $220 ================================================================ The Company's first mortgage bond indenture includes an improvement fund requirement that amounts to 1 percent of each outstanding series of bonds authenticated under the indenture prior to January 1 of each year, other than those issued to collateralize pollution control obligations. The requirement may be satisfied by June 1 of each year by depositing cash, reacquiring bonds, or by pledging additional property equal to 1 2/3 times the requirement. The 1999 requirement was met in the first quarter of the year by depositing cash with the trustee. These funds were used to redeem first mortgage bonds. Redemption of Securities The Company plans to continue a program of redeeming or replacing debt and preferred stock in cases where opportunities exist to reduce financing costs. Issues may be repurchased in the open market or called at premiums as specified under terms of the issue. They may also be redeemed at face value to meet improvement fund requirements, to meet replacement provisions of the mortgage, or through use of proceeds from the sale of property pledged under the mortgage. II-116 NOTES (continued) Georgia Power Company 1998 Annual Report In general, for the first five years a series of first mortgage bonds is outstanding, the Company is prohibited from redeeming for improvement fund purposes more than 1 percent annually of the original issue amount. 10. QUARTERLY FINANCIAL DATA (UNAUDITED) Summarized quarterly financial information for 1998 and 1997 is as follows: Net Income After Dividends on Operating Operating Preferred Stock Quarter Ended Revenues Income - - - - - - - --------------------------------------------------------------------- (in millions) -------------------------------------------- March 1998 $ 984 $177 $ 106 June 1998 1,226 188 137 September 1998 1,530 325 255 December 1998 998 104 72 March 1997 $ 959 $180 $ 106 June 1997 1,015 205 131 September 1997 1,407 317 257 December 1997 1,005 159 100 - - - - - - - --------------------------------------------------------------------- Earnings in the fourth quarter of 1998, compared to the fourth quarter of 1997, decreased primarily as a result of the December 1998 Rocky Mountain write-off. The Company's business is influenced by seasonal weather conditions. II-117
SELECTED FINANCIAL AND OPERATING DATA Georgia Power Company 1998 Annual Report =============================================================================================================================== 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $4,738,253 $4,385,717 $4,416,779 Net Income after Dividends on Preferred Stock (in thousands) $570,228 $593,996 $580,327 Cash Dividends on Common Stock (in thousands) $536,600 $520,000 $475,500 Return on Average Common Equity (percent) 14.61 14.53 13.73 Total Assets (in thousands) $12,033,618 $12,573,728 $13,006,635 Gross Property Additions (in thousands) $499,053 $475,921 $428,220 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $3,784,172 $4,019,728 $4,154,281 Preferred stock 15,527 157,247 464,611 Preferred stock subject to mandatory redemption - - - Company obligated mandatorily redeemable preferred securities 689,250 689,250 325,000 Long-term debt 2,744,362 2,982,835 3,200,419 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $7,233,311 $7,849,060 $8,144,311 =============================================================================================================================== Capitalization Ratios (percent): Common stock equity 52.3 51.2 51.0 Preferred stock 0.2 2.0 5.7 Company obligated mandatorily redeemable preferred securities 9.5 8.8 4.0 Long-term debt 38.0 38.0 39.3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 =============================================================================================================================== First Mortgage Bonds (in thousands): Issued - - 10,000 Retired 558,250 60,258 210,860 Preferred Stock (in thousands): Issued - - - Retired 106,064 356,392 179,148 Senior Notes (in thousands): Issued 495,000 - - Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - 364,250 225,000 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 Standard and Poor's A+ A+ A+ Duff & Phelps AA- AA- AA- Preferred Stock - Moody's a2 a2 a2 Standard and Poor's A A A Duff & Phelps A+ A+ A+ Unsecured Long-Term Debt - Moody's A2 A2 A2 Standard and Poor's A A A Duff & Phelps A+ A+ A+ - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 1,596,488 1,561,675 1,531,453 Commercial 221,180 211,672 205,087 Industrial 9,485 9,988 10,424 Other 3,034 2,748 2,645 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 1,830,187 1,786,083 1,749,609 =============================================================================================================================== Employees (year-end) 8,371 8,354 * 10,346 *In 1997 Georgia Power Company transferred 1,855 employees to Southern Nuclearompany.
II-118
SELECTED FINANCIAL AND OPERATING DATA (continued) Georgia Power Company 1998 Annual Report =======================================================================================================================------------ 1995 1994 1993 1992 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $4,405,338 $4,162,403 $4,451,181 $4,297,436 Net Income after Dividends on Preferred Stock (in thousands) $608,862 $525,544 $569,853 $520,538 Cash Dividends on Common Stock (in thousands) $451,500 $429,300 $402,400 $384,000 Return on Average Common Equity (percent) 14.43 12.84 14.37 13.60 Total Assets (in thousands) $13,470,275 $13,712,658 $13,736,110 $10,964,442 Gross Property Additions (in thousands) $480,449 $638,426 $674,432 $508,444 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $4,299,012 $4,141,554 $4,045,458 $3,888,237 Preferred stock 692,787 692,787 692,787 692,792 Preferred stock subject to mandatory redemption - - - 6,250 Company obligated mandatorily redeemable preferred securities 100,000 100,000 - - Long-term debt 3,315,460 3,757,823 4,031,387 4,131,016 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $8,407,259 $8,692,164 $8,769,632 $8,718,295 =================================================================================================================================== Capitalization Ratios (percent): Common stock equity 51.1 47.6 46.1 44.6 Preferred stock 8.2 8.0 7.9 8.0 Company obligated mandatorily redeemable preferred securities 1.2 1.2 - - Long-term debt 39.5 43.2 46.0 47.4 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 =================================================================================================================================== First Mortgage Bonds (in thousands): Issued 75,000 - 1,135,000 975,000 Retired 505,789 133,559 1,337,822 1,381,300 Preferred Stock (in thousands): Issued - - 175,000 195,000 Retired - - 245,005 165,004 Senior Notes (in thousands): Issued - - - - Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - 100,000 - - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A2 A3 A3 Standard and Poor's A+ A A- A- Duff & Phelps AA- A+ A+ A- Preferred Stock - Moody's a2 a3 baa1 baa1 Standard and Poor's A A- BBB+ BBB+ Duff & Phelps A A- A- BBB Unsecured Long-Term Debt - Moody's A2 A3 Baa1 Baa1 Standard and Poor's A A- BBB+ BBB+ Duff & Phelps A+ A A BBB+ - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 1,500,024 1,466,382 1,441,972 1,421,175 Commercial 198,624 193,648 188,820 183,784 Industrial 10,796 10,976 11,217 11,479 Other 2,568 2,426 2,322 2,269 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total 1,712,012 1,673,432 1,644,331 1,618,707 =================================================================================================================================== Employees (year-end) 11,061 11,765 12,528 12,600
II-119A
SELECTED FINANCIAL AND OPERATING DATA (continued) Georgia Power Company 1998 Annual Report ================================================================================================================================= 1991 1990 1989 1988 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $4,301,428 $4,445,809 $4,145,240 $3,897,479 Net Income after Dividends on Preferred Stock (in thousands) $474,855 $208,066 $449,099 $479,532 Cash Dividends on Common Stock (in thousands) $375,200 $389,600 $394,500 $386,600 Return on Average Common Equity (percent) 12.76 5.52 11.72 13.06 Total Assets (in thousands) $10,842,538 $11,176,619 $11,372,346 $11,130,539 Gross Property Additions (in thousands) $548,051 $558,727 $727,631 $929,019 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $3,766,551 $3,673,913 $3,860,657 $3,806,070 Preferred stock 607,796 607,796 607,844 657,844 Preferred stock subject to mandatory redemption 118,750 125,000 155,000 162,500 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 4,553,189 5,000,225 5,054,001 4,861,378 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $9,046,286 $9,406,934 $9,677,502 $9,487,792 ================================================================================================================================= Capitalization Ratios (percent): Common stock equity 41.7 39.1 39.9 40.1 Preferred stock 8.0 7.8 7.9 8.6 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 50.3 53.1 52.2 51.3 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ================================================================================================================================= First Mortgage Bonds (in thousands): Issued - 300,000 250,000 150,000 Retired 598,384 91,117 91,516 206,677 Preferred Stock (in thousands): Issued 100,000 - - - Retired 100,000 83,750 7,500 3,750 Senior Notes (in thousands): Issued - - - - Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - - - - - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's Baa1 Baa1 Baa2 Baa2 Standard and Poor's BBB+ BBB+ BBB+ BBB Duff & Phelps BBB+ BBB BBB 9 Preferred Stock - Moody's baa1 baa1 baa2 baa2 Standard and Poor's BBB BBB BBB BBB- Duff & Phelps BBB- BBB- BBB- 10 Unsecured Long-Term Debt - Moody's Baa2 Baa2 - Baa3 Standard and Poor's BBB+ BBB - BBB- Duff & Phelps BBB+ - - 10 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 1,397,682 1,378,888 1,355,211 1,329,173 Commercial 179,933 178,391 177,814 174,147 Industrial 11,946 12,115 12,311 12,353 Other 2,190 2,114 2,050 1,993 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total 1,591,751 1,571,508 1,547,386 1,517,666 ================================================================================================================================= Employees (year-end) 13,700 13,746 13,900 15,110
II-119B
SELECTED FINANCIAL AND OPERATING DATA (continued) Georgia Power Company 1998 Annual Report =============================================================================================================================== 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $1,486,699 $1,326,787 $1,371,033 Commercial 1,591,363 1,493,353 1,486,586 Industrial 1,170,881 1,110,311 1,118,633 Other 49,274 47,848 47,060 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total retail 4,298,217 3,978,299 4,023,312 Sales for resale - non-affiliates 259,234 282,365 281,580 Sales for resale - affiliates 81,606 38,708 35,886 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 4,639,057 4,299,372 4,340,778 Other revenues 99,196 86,345 76,001 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total $4,738,253 $4,385,717 $4,416,779 =============================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 19,481,486 17,295,022 17,826,451 Commercial 22,861,391 21,134,346 20,823,073 Industrial 27,283,147 26,701,685 26,191,831 Other 543,462 538,163 536,057 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total retail 70,169,486 65,669,216 65,377,412 Sales for resale - non-affiliates 6,438,891 6,795,300 7,868,342 Sales for resale - affiliates 2,038,400 1,706,699 1,180,207 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 78,646,777 74,171,215 74,425,961 =============================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.63 7.67 7.69 Commercial 6.96 7.07 7.14 Industrial 4.29 4.16 4.27 Total retail 6.13 6.06 6.15 Sales for resale 4.02 3.78 3.51 Total sales 5.90 5.80 5.83 Residential Average Annual Kilowatt-Hour Use Per Customer 12,314 11,171 11,763 Residential Average Annual Revenue Per Customer $939.72 $857.01 $904.70 Plant Nameplate Capacity Ratings (year-end) (megawatts) 14,437 14,437 14,367 Maximum Peak-Hour Demand (megawatts): Winter 11,959 10,407 10,410 Summer 13,923 13,153 12,914 Annual Load Factor (percent) 58.7 57.4 62.2 Plant Availability (percent): Fossil-steam 86.0 85.8 85.2 Nuclear 91.6 88.8 89.3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 62.3 64.3 60.4 Nuclear 18.3 18.8 18.2 Hydro 2.2 2.2 2.2 Oil and gas 2.2 0.6 0.5 Purchased power - From non-affiliates 6.5 2.7 5.6 From affiliates 8.5 11.4 13.1 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 =============================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,118 9,990 10,468 Cost of fuel per million BTU (cents) 134.62 132.61 128.72 Average cost of fuel per net kilowatt-hour generated (cents) 1.36 1.32 1.35 =============================================================================================================================== * Less than one-tenth of one percent.
II-120
SELECTED FINANCIAL AND OPERATING DATA (continued) Georgia Power Company 1998 Annual Report ========================================================================================================================== 1995 1994 1993 1992 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $1,337,060 $1,180,358 $1,291,035 $1,128,396 Commercial 1,449,108 1,367,315 1,354,130 1,285,681 Industrial 1,141,766 1,100,995 1,113,067 1,083,856 Other 44,255 42,983 41,399 39,504 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total retail 3,972,189 3,691,651 3,799,631 3,537,437 Sales for resale - non-affiliates 290,302 351,591 534,370 640,308 Sales for resale - affiliates 76,906 60,899 61,668 67,835 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 4,339,397 4,104,141 4,395,669 4,245,580 Other revenues 65,941 58,262 55,512 51,856 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total $4,405,338 $4,162,403 $4,451,181 $4,297,436 ========================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 17,307,399 15,680,709 16,649,859 14,939,172 Commercial 19,844,999 18,738,461 18,278,508 17,260,614 Industrial 25,286,340 24,337,632 23,635,363 22,978,312 Other 493,720 484,009 460,801 436,144 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total retail 62,932,458 59,240,811 59,024,531 55,614,242 Sales for resale - non-affiliates 6,591,841 7,968,475 14,307,030 15,870,222 Sales for resale - affiliates 2,738,947 3,056,050 3,027,733 3,320,060 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total 72,263,246 70,265,336 76,359,294 74,804,524 ========================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.73 7.53 7.75 7.55 Commercial 7.30 7.30 7.41 7.45 Industrial 4.52 4.52 4.71 4.72 Total retail 6.31 6.23 6.44 6.36 Sales for resale 3.94 3.74 3.44 3.69 Total sales 6.00 5.84 5.76 5.68 Residential Average Annual Kilowatt-Hour Use Per Customer 11,654 10,766 11,630 10,603 Residential Average Annual Revenue Per Customer $900.28 $810.39 $901.79 $800.88 Plant Nameplate Capacity Ratings (year-end) (megawatts) 14,344 13,943 13,759 14,076 Maximum Peak-Hour Demand (megawatts): Winter 9,819 10,509 9,067 8,938 Summer 12,828 11,758 12,573 11,448 Annual Load Factor (percent) 59.6 63.0 58.5 60.5 Plant Availability (percent): Fossil-steam 85.8 83.1 85.9 86.6 Nuclear 91.8 88.4 85.5 87.7 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 63.0 61.3 62.1 61.4 Nuclear 19.3 18.0 16.2 17.0 Hydro 2.5 2.6 2.3 2.5 Oil and gas 0.6 0.1 0.2 * Purchased power - From non-affiliates 7.7 9.7 10.2 12.2 From affiliates 6.9 8.3 9.0 6.9 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 ========================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,039 9,915 9,912 9,900 Cost of fuel per million BTU (cents) 143.85 145.33 153.62 153.08 Average cost of fuel per net kilowatt-hour generated (cents) 1.44 1.44 1.52 1.52 ========================================================================================================================== * Less than one-tenth of one percent.
II-121A
SELECTED FINANCIAL AND OPERATING DATA (continued) Georgia Power Company 1998 Annual Report =============================================================================================================================== 1991 1990 1989 1988 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $1,111,358 $1,109,165 $1,022,781 $979,047 Commercial 1,243,067 1,218,441 1,143,727 1,054,995 Industrial 1,057,702 1,061,830 1,006,416 983,822 Other 37,861 36,773 34,775 31,743 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total retail 3,449,988 3,426,209 3,207,699 3,049,607 Sales for resale - non-affiliates 736,643 784,086 760,809 707,076 Sales for resale - affiliates 65,586 168,251 150,394 86,751 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 4,252,217 4,378,546 4,118,902 3,843,434 Other revenues 49,211 67,263 26,338 54,045 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total $4,301,428 $4,445,809 $4,145,240 $3,897,479 =============================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 14,815,089 14,771,648 14,134,195 13,800,038 Commercial 16,885,833 16,627,128 15,843,181 14,790,561 Industrial 22,298,062 22,126,604 21,801,404 21,412,845 Other 429,016 428,459 414,107 397,669 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total retail 54,428,000 53,953,839 52,192,887 50,401,113 Sales for resale - non-affiliates 18,719,924 20,158,681 20,479,412 18,544,705 Sales for resale - affiliates 3,885,892 8,272,528 7,489,948 3,327,814 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 77,033,816 82,385,048 80,162,247 72,273,632 =============================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.50 7.51 7.24 7.09 Commercial 7.36 7.33 7.22 7.13 Industrial 4.74 4.80 4.62 4.59 Total retail 6.34 6.35 6.15 6.05 Sales for resale 3.55 3.35 3.26 3.63 Total sales 5.52 5.31 5.14 5.32 Residential Average Annual Kilowatt-Hour Use Per Customer 10,675 10,795 10,530 10,484 Residential Average Annual Revenue Per Customer $800.78 $810.56 $761.96 $743.82 Plant Nameplate Capacity Ratings (year-end) (megawatts) 14,076 14,366 14,366 13,018 Maximum Peak-Hour Demand (megawatts): Winter 10,001 8,977 10,101 9,866 Summer 13,090 13,196 12,735 12,295 Annual Load Factor (percent) 55.2 55.5 56.3 59.1 Plant Availability (percent): Fossil-steam 93.3 92.5 93.0 94.5 Nuclear 81.6 81.3 89.2 69.4 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 63.6 65.1 64.0 72.0 Nuclear 15.3 13.7 14.1 9.6 Hydro 2.3 2.2 2.1 1.2 Oil and gas * 0.1 0.1 0.1 Purchased power - From non-affiliates 10.3 11.0 10.2 8.2 From affiliates 8.5 7.9 9.5 8.9 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 =============================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 9,960 9,939 10,020 9,969 Cost of fuel per million BTU (cents) 157.97 166.22 164.27 166.28 Average cost of fuel per net kilowatt-hour generated (cents) 1.57 1.65 1.65 1.66 =============================================================================================================================== * Less than one-tenth of one percent.
11-121B GULF POWER COMPANY FINANCIAL SECTION II-122 MANAGEMENT'S REPORT Gulf Power Company 1998 Annual Report The management of Gulf Power Company has prepared -- and is responsible for -- the financial statements and related information included in this report. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances and necessarily include amounts that are based on the best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that books and records reflect only authorized transactions of the Company. Limitations exist in any system of internal controls, however, based on a recognition that the cost of the system should not exceed its benefits. The Company believes its system of internal accounting controls maintains an appropriate cost/benefit relationship. The Company's system of internal accounting controls is evaluated on an ongoing basis by the Company's internal audit staff. The Company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, composed of directors who are not employees, provides a broad overview of management's financial reporting and control functions. Periodically, this committee meets with management, the internal auditors, and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal controls, and financial reporting matters. The internal auditors and independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the Company's operations are conducted according to a high standard of business ethics. In management's opinion, the financial statements present fairly, in all material respects, the financial position, results of operations, and cash flows of Gulf Power Company in conformity with generally accepted accounting principles. /s/ Travis J. Bowden /s/ Arlan E. Scarbrough Travis J. Bowden Arlan E. Scarbrough President Chief Financial Officer and Chief Executive Officer February 10, 1999 II-123 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Gulf Power Company: We have audited the accompanying balance sheets and statements of capitalization of Gulf Power Company (a Maine corporation and a wholly owned subsidiary of Southern Company) as of December 31, 1998 and 1997, and the related statements of income, retained earnings, paid-in capital, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements (pages II-134 through II-150) referred to above present fairly, in all material respects, the financial position of Gulf Power Company as of December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 II-124 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Gulf Power Company 1998 Annual Report RESULTS OF OPERATIONS Earnings Gulf Power Company's 1998 net income after dividends on preferred stock was $56.5 million, a decrease of $1.1 million from the previous year. The decrease in earnings was primarily a result of higher operating expenses in 1998 when compared to 1997. In 1997, earnings were $57.6 million, down $0.2 million when compared to 1996. The change was attributed to lower residential revenues due to milder-than-normal weather. Revenues Operating revenues increased in 1998 when compared to 1997 and decreased in 1997 when compared to 1996. The following table summarizes the factors impacting operating revenues for the past three years: Increase (Decrease) From Prior Year --------------------------------------- 1998 1997 1996 --------------------------------------- (in thousands) Retail -- Sales growth $15,021 $ 4,005 $ 7,123 Weather 6,656 (5,277) (1,057) Regulatory cost recovery and other (34,179) (7,837) 5,649 - - - - - - - -------------------------------------------------------------------- Total retail (12,502) (9,109) 11,715 - - - - - - - -------------------------------------------------------------------- Sales for resale-- Non-affiliates (1,804) 496 2,788 Affiliates 25,882 (1,002) (857) - - - - - - - -------------------------------------------------------------------- Total sales for resale 24,078 (506) 1,931 Other operating revenues 13,086 1,106 1,642 - - - - - - - -------------------------------------------------------------------- Total operating revenues $24,662 $(8,509) $15,288 ==================================================================== Percent change 3.9% (1.3)% 2.5% - - - - - - - -------------------------------------------------------------------- Retail revenues of $509.1 million in 1998 decreased $12.5 million or 2.4 percent from the prior year due primarily to the recovery of lower fuel costs. The price per ton of coal, which is the Company's primary fuel source, was lower in 1998 as the costs related to prior year coal contract renegotiations were fully amortized and a major coal contract price was reduced. See Note 5 to the financial statements under "Fuel Commitments" for further information. Retail revenues for 1997 decreased $9.1 million or 1.7 percent when compared to 1996 due primarily to a decrease in residential revenues as a result of mild weather and recovery of lower purchased power capacity costs. The decrease in regulatory cost recovery and other retail revenues is primarily attributable to the recovery of decreased fuel costs as mentioned previously. Regulatory cost recovery and other includes recovery provisions for fuel expense and the energy component of purchased power costs; energy conservation costs; purchased power capacity costs; and environmental compliance costs. The recovery provisions generally equal the related expenses and have no material effect on net income. See Notes 1 and 3 to the financial statements under "Revenues and Regulatory Cost Recovery Clauses" and "Environmental Cost Recovery," respectively, for further information. Sales for resale were $104.5 million in 1998, an increase of $24.1 million or 29.9 percent over 1997 due to additional energy sales to affiliated companies, which is discussed below. Revenues from sales to utilities outside the service area under long-term contracts consist of capacity and energy components. Capacity revenues reflect the recovery of fixed costs and a return on investment under the contracts. Energy is generally sold at variable cost. The capacity and energy components under these long-term contracts were as follows: 1998 1997 1996 ---------------------------------------- (in thousands) Capacity $22,503 $24,899 $25,400 Energy 14,556 18,160 19,804 - - - - - - - ------------------------------------------------------------- Total $37,059 $43,059 $45,204 ============================================================= Declining capacity revenues reflect the decline in net plant investment related to these sales. Sales to affiliated companies vary from year to year depending on demand and the availability and cost of generating resources at each company. These sales have little impact on earnings. Other operating revenues increased in 1998 due primarily to adjustments to reflect differences between recoverable costs and the amounts actually reflected in current rates. See Notes 1 and 3 to the financial statements under "Revenues and Regulatory Cost Recovery Clauses" and "Environmental Cost Recovery," respectively, for further discussion. II-125 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report Kilowatt-hour sales for 1998 and the percent changes by year were as follows: KWH Percent Change ------------- ------------------------------ 1998 1998 1997 1996 ------------- ------------------------------ (millions) Residential 4,437 7.7% (1.0)% 3.6% Commercial 3,112 7.4 3.2 3.7 Industrial 1,834 (3.7) 5.3 0.7 Other 19 4.7 1.6 2.7 ------------- Total retail 9,402 5.2 1.6 3.0 Sales for resale Non-affiliates 1,342 (12.4) (0.2) 9.9 Affiliates 1,758 107.3 19.5 (6.5) ------------- Total 12,502 10.5 2.5 3.3 ================================================================= In 1998, total retail energy sales increased due to higher temperatures when compared to the milder-than-normal temperatures in 1997 and due to increases in the number of residential and commercial customers. The decrease in industrial energy sales in 1998 when compared to 1997 primarily reflects the shut down of a major industrial customer's plant site and temporary production delays of other industrial customers. In 1997, residential energy sales declined as a result of the milder weather when compared with more normal weather in 1996. The increase in industrial energy sales was primarily the result of the Real-Time-Pricing program. The price structure of this program has encouraged participating industrial customers to lower their peak demand requirements and increase their purchases of energy during off-peak periods. See "Future Earnings Potential" for information on the Company's initiatives to remain competitive and to meet conservation goals set by the Florida Public Service Commission (FPSC). Decreases in energy sales for resale to non-affiliates of 12.4 percent in 1998 when compared to 1997 and 0.2 percent in 1997 when compared to 1996 are primarily related to unit power sales under long-term contracts to other Florida utilities and bulk power sales under short-term contracts to other non-affiliated utilities. Energy sales to affiliated companies vary from year to year as mentioned previously. Expenses Total operating expenses in 1998 increased $25.6 million or 4.8 percent from the amount recorded in 1997 due primarily to higher fuel, purchased power, and maintenance expenses, offset by lower other operation expenses. In 1997, total operating expenses decreased $3.9 million or 0.7 percent from 1996. The decrease was due to lower fuel, purchased power, and maintenance expenses, offset by higher other operation expenses and depreciation and amortization expenses. Fuel expenses in 1998 when compared to 1997 increased $16.6 million or 9.2 percent due to increased generation resulting from a higher demand for energy, while average fuel costs decreased as noted below. In 1997, fuel expenses decreased when compared to 1996 due to slightly lower fuel costs. Purchased power expenses increased in 1998 by $6.9 million or 18.8 percent above 1997 amounts due to an increased demand for energy. In 1997, purchased power expenses decreased $6.5 million or 14.9 percent from the amount recorded in 1996. This change was due primarily to a reduction in the cost of purchased power from affiliated companies. The amount and sources of generation and the average cost of fuel per net kilowatt-hour generated were as follows: 1998 1997 1996 ------------------------------- Total generation (millions of kilowatt-hours) 11,986 10,435 10,214 Sources of generation (percent) Coal 98.0 99.6 99.5 Oil and gas 2.0 0.4 0.5 Average cost of fuel per net kilowatt-hour generated (cents)-- 1.69 1.99 2.02 - - - - - - - --------------------------------------------------------------------- Other operation expenses decreased $7.3 million or 5.7 percent in 1998 due to a decrease in the amortization costs of prior year payments related to renegotiations of coal supply contracts. This decrease was partially offset by higher implementation costs of a new customer accounting system, increased costs related to the Year 2000 program, and an increase in the accrual to the accumulated provision for property damage. In 1997, other operation expenses increased $11.1 million or 9.6 percent from the 1996 level. This change was attributable to higher amortization costs of prior year payments related to renegotiations of coal supply contracts, implementation costs related to a new customer accounting system, and increased production and distribution costs II-126 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report related to 1997 work force reduction programs. See Note 2 to the financial statements under "Workforce Reduction Programs" for further discussion. Maintenance expenses in 1998 rose by $9.3 million or 19.4 percent, as compared to 1997, due primarily to scheduled maintenance performed at Plant Crist and Plant Smith and increased transmission and distribution maintenance. In 1997, maintenance expenses decreased $3.1 million or 6.0 percent when compared to the prior year due to a decrease in scheduled maintenance of production facilities. Interest on long-term debt in 1998 decreased $2.0 million or 9.1 percent from 1997 due primarily to a decrease in interest expense on pollution control bonds refinanced in 1997 and two long-term bank notes that matured in 1998. This decrease was partially offset by an increase in interest due to two first mortgage bonds maturing in 1998 being replaced with senior notes at a slightly higher interest rate. In 1997, interest on long-term debt decreased $3.0 million or 12.1 percent from the prior year as a result of retirements and refinancings. Distributions on preferred securities increased $3.2 million in 1998. This increase was attributable to the issuance of $45 million of trust preferred securities in January 1998 to replace preferred stock. In 1997, distributions on preferred securities increased $2.8 million due to the issuance of $40 million of trust preferred securities in January 1997. Effects of Inflation The Company is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the Company is recovering its cost of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on the Company because of the large investment in utility plant with a long economic life. Conventional accounting for historical cost does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations, such as long-term debt and preferred securities. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings potential. The level of future earnings depends on numerous factors ranging from energy sales growth to a potentially less regulated and more competitive environment. Gulf Power currently operates as a vertically integrated utility providing electricity to customers within its traditional service area located in northwest Florida. Prices for electricity provided by the Company to retail customers are set by the FPSC. Future earnings in the near term will depend upon growth in energy sales, which is subject to a number of factors. Traditionally, these factors have included weather, competition, changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, and the rate of economic growth in the Company's service area. In the fourth quarter of 1998, the FPSC opened a docketed proceeding to consider whether the rate of return authorized for another investor-owned electric utility subject to the FPSC's jurisdiction continues to be reasonable under current market conditions. Although no official action has been taken by the FPSC at this time with regard to the authorized returns for Gulf Power or any of the other investor-owned electric utilities subject to the FPSC's jurisdiction, a similar investigation could be initiated by action of the FPSC or its staff at any time. The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Company is positioning the business to meet the challenge of this major change in the traditional practice of selling electricity. The Energy Act allows independent power producers (IPPs) to access the Company's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for industrial and II-127 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report commercial customers and sell energy generation to other utilities. The Company has and will continue to evaluate opportunities to partner and participate in profitable cogeneration projects. In 1998, partnering with one of the Company's largest industrial customers, construction was completed on 15 megawatts of Company-owned cogeneration on the customer's plant site. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. The Company is aggressively working to maintain and expand its share of wholesale sales in the southeastern power markets. Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As the initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While various restructuring and competition initiatives have been or are being discussed in Florida, none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. The inability of the Company to recover its investments, including the regulatory assets described in Note 1 to the financial statements, could have a material adverse effect on the financial condition of the Company. The Company is attempting to minimize or reduce its cost exposure. Continuing to be a low-cost producer could provide opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless the Company remains a low-cost producer and provides quality service, the Company's retail energy sales growth could be limited, and this could significantly erode earnings. In 1996, the FPSC approved a new optional Commercial/Industrial Service Rider (CISR), which is applicable to the rate schedules for the Company's largest existing and potential customers who are able to show they have viable alternatives to purchasing the Company's energy services. The CISR, approved as a pilot program, provides the flexibility needed to enable the Company to offer its services in a more competitive manner to these customers. The publicity of the CISR ruling, increased competitive pressures, and general awareness of customer choice pilots and proposals across the country have stimulated interest on the part of customers in custom tailored offerings. The Company has participated in one-on-one discussions with many of these customers, and has negotiated and executed two Contract Service Agreements within the CISR pilot program. The FPSC will set new conservation goals and approve programs to accomplish the goals by year-end 1999. Conservation goals are set every five years for a ten-year period. The last conservation goals proceeding was in 1994 and established demand-side management programs and conservation goals for 1995 to 2004. In the previous and current goals proceedings, the emphasis remains on using price flexibility and competitive offerings of energy efficient products and services. The new goals will be for the 2000 to 2009 period. Compliance costs related to current and future environmental laws and regulations could affect earnings if such costs are not fully recovered. The Clean Air Act and other important environmental items are discussed later under "Environmental Matters." Also, Florida legislation adopted in 1993 that provides for recovery of prudent environmental compliance costs is discussed in Note 3 to the financial statements under "Environmental Cost Recovery." The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of the Company's operations is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. II-128 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report Exposure to Market Risks Due to cost-based rate regulation, the Company has limited exposure to market volatility in interest rates and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the Company enters into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statements as incurred. At December 31, 1998, exposure from these activities was not material to the Company's financial position, results of operations, or cash flows. Also, based on the Company's overall interest rate exposure at December 31, 1998, a near-term 100 basis point change in interest rates would not materially affect the Company's financial statements. New Accounting Standards The FASB has issued Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments - including certain derivative instruments embedded in other contracts - and for hedging activities. Adoption of this statement is not expected to have a material impact on the Company's financial statements. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Costs of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, with gains and losses reflected rather than revenues and purchased power. Energy trading contracts are defined as energy contracts entered into with the objective of generating profits on or from exposure to shifts or changes in market prices. The Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the financial statements. Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard-coded into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space, was used until the mid-1990s. Unless corrected before the year 2000, affected software systems and devices containing a chip or microprocessor with date and time functions could incorrectly process dates or the systems may cease to function. The Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. The Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year 2000 and beyond. Critical systems include, but are not limited to, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status The Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated what it believes to be adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. II-129 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report The work was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in this phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices, and applications into the Year 2000. Southern Company has completed more than 70 percent of the activities contained in its work plan. The percentage of completion and projected completion dates by function are as follows: - - - - - - - ------------------------------------------------------------------ Work Plan ----------------------------------------- Remediation Project Inventory Assessment Testing Completion - - - - - - - ------------------------------------------------------------------ Generation 100% 100% 70% 6/99 - - - - - - - ------------------------------------------------------------------ Energy Management 100 100 90 6/99 - - - - - - - ------------------------------------------------------------------ Transmission and Distribution 100 100 100 1/99 - - - - - - - ------------------------------------------------------------------ Telecommunications 100 100 50 6/99 - - - - - - - ------------------------------------------------------------------ Corporate Applications 100 100 90 3/99 - - - - - - - ------------------------------------------------------------------ Year 2000 Costs The Company's current projected total costs for Year 2000 readiness are approximately $4.8 million. These costs include labor necessary to identify, test, and renovate affected devices and systems. From its inception through December 31, 1998, the Year 2000 program costs, recognized as expense, amounted to $3.0 million, of which $2.5 million was recorded in 1998. Year 2000 Risks The Company is implementing a detailed process to minimize the possibility of service interruptions related to the Year 2000. The Company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operation. The Company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruptions in service that may occur within the Company's service territory to be isolated and short in duration. The Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the service loss of any single bulk transmission element in its service territory. The Company has followed a proven methodology for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, the Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council - - - - - - - - coordinated national drills during 1999. The Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to the Company's operations. Among such critical third parties are fuel, transportation, telecommunications, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to the Company are being developed. There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their own Year 2000 issues. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the Company is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, the Company is drawing on that experience to make risk assessments and is developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. The Company is identifying critical operational locations, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the Company's service territory isolated and short in duration. II-130 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report FINANCIAL CONDITION Overview The Company's financial condition continues to be very solid. During 1998, gross property additions were $69.7 million. Funds for the property additions were provided by internal sources. See the Statements of Cash Flows for further details. Financing Activities In 1998, the Company sold $45 million of trust preferred securities and $50 million of senior insured quarterly notes. Retirements, including maturities during 1998, totaled $45 million of first mortgage bonds, $9.5 million of preferred stock, and $8.3 million of long-term bank notes. The proceeds from the issuance of $45 million of trust preferred securities were used to repay short-term indebtedness that was used to redeem preferred stock tendered at the end of 1997 and to redeem additional preferred stock during 1998. This refinancing will result in savings of approximately $0.6 million annually. See the Statements of Cash Flows for further details. Composite financing rates for the years 1996 through 1998 as of year end were as follows: 1998 1997 1996 ----------------------------- Composite interest rate on long-term debt 6.1% 5.9% 6.1% Composite rate on trust preferred securities 7.3% 7.6% - Composite preferred stock dividend rate 5.1% 6.1% 6.4% - - - - - - - ----------------------------------------------------------------- The composite interest rate on long-term debt increased in 1998 primarily as a result of the maturity of two low-cost first mortgage bond issues, which were replaced with long-term notes with a slightly higher interest rate. The decrease in the composite preferred stock dividend rate in 1998 was primarily due to the retirement of higher-cost preferred stock. Capital Requirements for Construction The Company's gross property additions, including those amounts related to environmental compliance, are budgeted at $434 million for the three years beginning in 1999 ($72 million in 1999, $100 million in 2000, and $262 million in 2001). Actual construction costs may vary from this estimate because of changes in such factors as: business conditions; environmental regulations; load projections; the cost and efficiency of construction labor, equipment, and materials; and the cost of capital. In addition, there can be no assurance that costs related to capital expenditures will be fully recovered. The Company has budgeted $263.6 million for the years 1999 through 2002 for the estimated cost of a 532 megawatt combined cycle gas unit to be located in the eastern portion of its service area. The unit is expected to have an in-service date of June 2002, subject to regulatory approval. The Company will continue its program to maintain and upgrade transmission and distribution facilities and generating plants. Other Capital Requirements In addition to the funds needed for the construction program, approximately $27 million will be required by the end of 2001 in connection with maturities of long-term debt. Also, the Company will continue to retire higher-cost debt and preferred securities and replace these securities with lower-cost capital as market conditions and terms of the instruments permit. Environmental Matters In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act -- the acid rain compliance provision of the law -- significantly affected the Company. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating units of Southern Company. As a result of Southern Company's compliance strategy, an additional 22 generating units were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected plants by switching to low-sulfur coal, which required some equipment upgrades. Construction expenditures for Phase I compliance totaled approximately $300 million for Southern Company, including approximately $42 million for Gulf Power. II-131 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report For Phase II sulfur dioxide compliance, Southern Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Also, equipment to control nitrogen oxide emissions will be installed on additional system fossil-fired units as required to meet Phase II limits. Current compliance strategy for Phase II and ozone non-attainment could require total estimated construction expenditures for Southern Company of approximately $70 million, of which $16 million remains to be spent. Phase II compliance is not expected to have a material impact on Gulf Power. Following adoption of legislation in April of 1992 allowing electric utilities in Florida to seek FPSC approval of their Clean Air Act Compliance Plans, Gulf Power filed its petition for approval. The FPSC approved the Company's plan for Phase I compliance, deferring until a later date approval of its Phase II Plan. In 1993, the Florida Legislature adopted legislation that allows a utility to petition the FPSC for recovery of prudent environmental compliance costs that are not being recovered through base rates or any other recovery mechanism. The legislation is discussed in Note 3 to the financial statements under "Environmental Cost Recovery." Substantially all of the costs for the Clean Air Act and other new environmental legislation discussed below are expected to be recovered through the Environmental Cost Recovery Clause. In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the new rules. The final rules affect 22 states including Alabama and Georgia. See Note 6 to the financial statements under "Joint Ownership Agreements" related to the Company's ownership interest in Georgia Power's Plant Scherer Unit No. 3. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various other matters including: nitrogen oxide emission control strategies for ozone non-attainment areas; additional controls for hazardous air pollutant emissions; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. Gulf Power must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the Company could incur substantial costs to clean up properties. The Company conducts studies to determine the extent of any required cleanup costs and has recognized in the financial statements costs to clean up known sites. For additional information, see Note 3 to the financial statements under "Environmental Cost Recovery." Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; and the Endangered Species Act. Changes to these laws could affect many areas of the Company's operations. The full impact of any such changes cannot be determined at this time. Compliance with possible additional legislation related to global climate change, electric and magnetic fields, and other environmental health concerns could significantly affect the Company. The impact of new legislation -- if any - - - - - - - -- will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for liability as the result of lawsuits alleging damages caused by electric and magnetic fields. Sources of Capital At December 31, 1998, the Company had approximately $1.0 million of cash and cash equivalents and $35.5 million of unused committed lines of credit with banks to meet its short-term cash needs. Refer to Statements of Cash Flows for II-132 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Gulf Power Company 1998 Annual Report details related to the Company's financing activities. See Note 5 to the financial statements under "Bank Credit Arrangements" for additional information. The Company historically has relied on issuances of first mortgage bonds and preferred stock, in addition to pollution control revenue bonds issued for its benefit by public authorities, to meet its long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. In this regard, the Company sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness it may incur. If the Company chooses to issue first mortgage bonds or preferred stock, it is required to meet certain coverage requirements specified in its mortgage indenture and corporate charter. The Company's ability to satisfy all coverage requirements is such that it could issue new first mortgage bonds and preferred stock to provide sufficient funds for all anticipated requirements. Cautionary Statement Regarding Forward-Looking Information Gulf Power Company's 1998 Annual Report contains forward-looking and historical information. The Company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the Company's markets; potential business strategies--including acquisitions or dispositions of assets or internal restructuring--that may be pursued by the company; state and federal rate regulation; Year 2000 issues; changes in or application of environmental and other laws and regulations to which the Company is subject; political, legal and economic conditions and developments; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; and other factors discussed in the reports--including Form 10-K--filed from time to time by the Company with the Securities and Exchange Commission. II-133
STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Gulf Power Company 1998 Annual Report - - - - - - - --------------------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Revenues: Revenues $ 607,876 $ 609,096 $ 616,603 Revenues from affiliates 42,642 16,760 17,762 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total operating revenues 650,518 625,856 634,365 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation- Fuel 197,462 180,843 184,500 Purchased power from non-affiliates 29,369 11,938 8,300 Purchased power from affiliates 14,445 24,955 35,076 Other 119,011 126,266 115,154 Maintenance 57,286 47,988 51,050 Depreciation and amortization 59,129 57,874 56,645 Taxes other than income taxes 51,462 51,775 52,027 Federal and state income taxes (Note 8) 34,089 35,034 37,821 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total operating expenses 562,253 536,673 540,573 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Income 88,265 89,183 93,792 Other Income (Expense): Interest income 931 1,203 1,921 Other, net (2,339) (992) (1,678) Income taxes applicable to other income 1,890 1,584 248 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Income Before Interest Charges and Other 88,747 90,978 94,283 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Interest Charges and Other: Interest on long-term debt 19,718 21,699 24,691 Other interest charges 2,548 2,076 1,824 Interest on notes payable 1,190 891 2,071 Amortization of debt discount, premium, and expense, net 2,100 2,281 2,087 Distributions on preferred securities of subsidiary trust 6,034 2,804 - - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Interest charges and other, net 31,590 29,751 30,673 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Net Income 57,157 61,227 63,610 Dividends on Preferred Stock 636 3,617 5,765 =========================================================================================================================== Net Income After Dividends on Preferred Stock $ 56,521 $ 57,610 $ 57,845 =========================================================================================================================== The accompanying notes are an integral part of these statements.
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STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Gulf Power Company 1998 Annual Report - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ (in thousands) Operating Activities: Net income $ 57,157 $ 61,227 $ 63,610 Adjustments to reconcile net income to net cash provided by operating activities -- Depreciation and amortization 69,633 72,860 71,825 Deferred income taxes (4,684) (7,047) 2,157 Accumulated provision for property damage 2,308 2,572 4,227 Deferred costs of 1995 coal contract renegotiation - 1,246 10,931 Other, net 1,155 1,012 1,468 Changes in certain current assets and liabilities -- Receivables, net 11,308 (692) 391 Inventories (4,308) 10,674 12,957 Payables 823 1,398 (7,078) Taxes accrued (7,960) 6,123 (441) Current costs of 1995 coal contract renegotiation 812 14,146 (5,099) Other (11,323) 2,028 5,937 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Net cash provided from operating activities 114,921 165,547 160,885 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Investing Activities: Gross property additions (69,731) (54,289) (61,386) Other 5,990 509 (2,786) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Net cash used for investing activities (63,741) (53,780) (64,172) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Financing Activities and Capital Contributions: Proceeds: Preferred securities 45,000 40,000 - First mortgage bonds - - 55,000 Pollution control bonds - 40,930 33,275 Capital contributions from parent 522 - - Other long-term debt 50,000 20,000 49,148 Retirements: Preferred stock (9,455) (75,911) - First mortgage bonds (45,000) (25,000) (50,930) Pollution control bonds - (40,930) (33,275) Other long-term debt (8,326) (15,972) (34,923) Notes payable, net (15,500) 22,000 (55,500) Payment of preferred stock dividends (792) (5,370) (5,749) Payment of common stock dividends (67,200) (64,600) (48,300) Miscellaneous (4,167) (3,014) (5,332) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Net cash used for financing activities (54,918) (107,867) (96,586) - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Net Increase (Decrease) in Cash and Cash Equivalents (3,738) 3,900 127 Cash and Cash Equivalents at Beginning of Year 4,707 807 680 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ Cash and Cash Equivalents at End of Year $ 969 $ 4,707 $ 807 ==================================================================================================================================== Supplemental Cash Flow Information: Cash paid during the year for -- Interest (net of amount capitalized) $28,044 $26,558 $26,050 Income taxes $38,782 $36,010 $25,858 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------------ ( ) Denotes use of cash. The accompanying notes are an integral part of these statements.
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BALANCE SHEETS At December 31, 1998 and 1997 Gulf Power Company 1998 Annual Report - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- ASSETS 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Utility Plant: Plant in service (Notes 1 and 6) $ 1,809,901 $ 1,762,244 Less accumulated provision for depreciation 784,111 737,767 -------------------------------------------------------------------------------------------------------------------------------- 1,025,790 1,024,477 Construction work in progress 34,863 31,030 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 1,060,653 1,055,507 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Other Property and Investments 588 622 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 969 4,707 Receivables- Customer accounts receivable 49,067 57,057 Other accounts and notes receivable 3,514 2,744 Affiliated companies 3,442 7,329 Accumulated provision for uncollectible accounts (996) (796) Fossil fuel stock, at average cost 24,213 19,296 Materials and supplies, at average cost (Note 1) 28,025 28,634 Deferred coal contract costs (Note 5) - 4,456 Regulatory clauses under recovery (Note 1) 9,737 1,675 Prepayments 5,690 2,171 Vacation pay deferred 4,035 4,057 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 127,696 131,330 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Charges and Other Assets: Deferred charges related to income taxes (Note 8) 25,308 26,586 Debt expense and loss, being amortized 21,448 22,941 Prepaid pension costs (Note 2) 13,770 10,385 Deferred storm charges (Note 1) - 703 Miscellaneous 18,438 17,538 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 78,964 78,153 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total Assets $ 1,267,901 $ 1,265,612 ================================================================================================================================ The accompanying notes are an integral part of these statements.
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BALANCE SHEETS At December 31, 1998 and 1997 Gulf Power Company 1998 Annual Report - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- CAPITALIZATION AND LIABILITIES 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Capitalization (See accompanying statements): Common stock equity (Note 11) $ 427,652 $ 428,718 Preferred stock 4,236 13,691 Company obligated mandatorily redeemable preferred securities of subsidiary trusts holding Company Junior Subordinated Notes (Note 9) 85,000 40,000 Long-term debt 317,341 296,993 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 834,229 779,402 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Long-term debt due within one year (Note 10) 27,000 53,327 Notes payable 31,500 47,000 Accounts payable- Affiliated companies 19,756 14,334 Other 23,697 20,205 Customer deposits 12,560 13,778 Taxes accrued 7,432 8,258 Interest accrued 5,184 7,227 Regulatory clauses over recovery (Note 1) 6,037 5,062 Vacation pay accrued 4,035 4,057 Dividends declared 54 10,210 Miscellaneous 3,960 8,739 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 141,215 192,197 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 8) 166,118 166,302 Deferred credits related to income taxes (Note 8) 52,465 56,935 Accumulated deferred investment tax credits 29,632 31,552 Accumulated provision for postretirement benefits (Note 2) 23,534 20,491 Accumulated provision for property damage (Note 1) 1,605 - Miscellaneous 19,103 18,733 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total 292,457 294,013 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 1, 2, 3, 4, 5, and 7) Total Capitalization and Liabilities $ 1,267,901 $ 1,265,612 ================================================================================================================================ The accompanying notes are an integral part of these statements.
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STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Gulf Power Company 1998 Annual Report ----------------------------------------------------------------------------------------------------------------------------- 1998 1997 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Common Stock Equity: Common stock, without par value -- Authorized and outstanding -- 992,717 shares in 1998 and 1997 $ 38,060 $ 38,060 Paid-in capital 218,960 218,438 Premium on preferred stock 12 12 Retained earnings (Note 11) 170,620 172,208 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total common stock equity 427,652 428,718 51.3 % 55.0 % - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Cumulative Preferred Stock: $10 par value -- Authorized -- 10,000,000 shares Outstanding -- 0 shares in 1998 and 377,989 shares in 1997 $25 stated capital -- 6.72% - 8,661 Adjustable Rate - 789 $100 par value -- Authorized -- 801,626 shares Outstanding -- 42,361 shares in 1998 and 42,411 shares in 1997 4.64% 1,250 1,255 5.16% 1,357 1,357 5.44% 1,629 1,629 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (annual dividend requirement -- $217,000) 4,236 13,691 0.5 1.8 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Company Obligated Mandatorily Redeemable Preferred Securities (Note 9): $25 Liquidation Value -- 7.00% 45,000 - 7.625% 40,000 40,000 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (annual distribution requirement--$6,200,000) 85,000 40,000 10.2 5.1 - - - - - - - -----------------------------------------------------------------------------------------------------------------------------
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STATEMENTS OF CAPITALIZATION (continued) At December 31, 1998 and 1997 Gulf Power Company 1998 Annual Report ----------------------------------------------------------------------------------------------------------------------------- 1998 1997 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Long-term Debt: First mortgage bonds -- Maturity Interest Rates April 1, 1998 5.55% - 15,000 July 1, 1998 5.00% - 30,000 July 1, 2003 6.125% 30,000 30,000 November 1, 2006 6.50% 25,000 25,000 January 1, 2026 6.875% 30,000 30,000 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total first mortgage bonds 85,000 130,000 Pollution control revenue bonds-- Collateralized: Maturity Interest Rates April 1, 2006 5.25% 12,075 12,075 July 1, 2022 Variable - 5.10% at 1/1/99 40,930 40,930 April 1, 2023 6.20% 13,000 13,000 June 1, 2023 5.80% 32,550 32,550 November 1, 2023 5.70% 7,875 7,875 September 1, 2024 6.30% 22,000 22,000 September 1, 2024 Variable - 5.15% at 1/1/99 20,000 20,000 February 1, 2026 5.50% 21,200 21,200 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total pollution control revenue bonds 169,630 169,630 Other long-term debt-- Maturity Interest Rates Bank notes-- February 1, 1998 5.2125% - 5,754 April 1, 1998 6.44% - 2,573 November 20, 1999 Variable - 5.7163% at 1/1/99 13,500 13,500 November 20, 1999 Variable - 5.7163% at 1/1/99 13,500 13,500 Junior subordinated notes-- June 30, 2037 7.50% 20,000 20,000 Senior insured quarterly notes-- June 30, 2038 6.70% 50,000 - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total other long-term debt 97,000 55,327 Unamortized debt discount (7,289) (4,637) - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement -- $21,365,000) 344,341 350,320 Less amount due within one year (Note 10) 27,000 53,327 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 317,341 296,993 38.0 38.1 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total Capitalization $ 834,229 $ 779,402 100.0 % 100.0 % ============================================================================================================================= The accompanying notes are an integral part of these statements.
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STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 Gulf Power Company 1998 Annual Report - - - - - - - --------------------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Year $ 172,208 $ 179,179 $ 179,663 Net income after dividends on preferred stock 56,521 57,610 57,845 Dividends on common stock (57,200) (64,600) (58,300) Preferred stock transactions, net (909) 19 (29) ============================================================================================================================ Balance at End of Year (Note 11) $ 170,620 $ 172,208 $ 179,179 =========================================================================================================================== STATEMENTS OF PAID-IN CAPITAL For the Years Ended December 31, 1998, 1997, and 1996 Gulf Power Company 1998 Annual Report - - - - - - - --------------------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Year $ 218,438 $ 218,438 $ 218,438 Capital contributions from parent 522 - - =========================================================================================================================== Balance at End of Year $ 218,960 $ 218,438 $ 218,438 =========================================================================================================================== The accompanying notes are an integral part of these statements.
II-140 NOTES TO FINANCIAL STATEMENTS Gulf Power Company 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Gulf Power Company is a wholly owned subsidiary of Southern Company, which is the parent company of five operating companies, a system service company, Southern Communications Services (Southern LINC), Southern Company Energy Solutions, Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), and other direct and indirect subsidiaries. The operating companies (Alabama Power, Georgia Power, Gulf Power, Mississippi Power, and Savannah Electric) provide electric service in four southeastern states. Gulf Power Company provides electric service to the northwest panhandle of Florida. Contracts among the operating companies -- dealing with jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power -- are regulated by the Federal Energy Regulatory Commission (FERC) and/or the Securities and Exchange Commission. The system service company provides, at cost, specialized services to Southern Company and subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Southern Company Energy Solutions develops new business opportunities related to energy products and services. Worldwide, Southern Energy develops and manages electricity and other energy related projects, including domestic energy trading and marketing. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both Southern Company and its subsidiaries are subject to the regulatory provisions of the PUHCA. The Company is also subject to regulation by the FERC and the Florida Public Service Commission (FPSC). The Company follows generally accepted accounting principles and complies with the accounting policies and practices prescribed by the FPSC. The preparation of financial statements in conformity with generally accepted accounting principles requires the use of estimates, and the actual results may differ from those estimates. Certain prior years' data presented in the financial statements have been reclassified to conform with current year presentation. Regulatory Assets and Liabilities The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the Company associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Balance Sheets at December 31 relate to the following: 1998 1997 -------------------------- (in thousands) Deferred income tax debits $ 25,308 $ 26,586 Deferred loss on reacquired debt 18,883 20,494 Environmental remediation 7,076 7,338 Current & deferred coal contract costs - 4,456 Vacation pay 4,035 4,057 Accumulated provision for property damage (1,605) - Deferred storm charges - 703 Regulatory clauses under (over) recovery, net 3,700 (3,387) Deferred income tax credits (52,465) (56,935) Other, net (480) (629) - - - - - - - ------------------------------------------------------------------ Total $ 4,452 $ 2,683 ================================================================== In the event that a portion of the Company's operations is no longer subject to the provisions of Statement No. 71, the Company would be required to write off related net regulatory assets and liabilities that are not specifically recoverable through regulated rates. In addition, the Company would be required to determine any impairment to other assets, including plant, and write down the assets, if impaired, to their fair value. II-141 NOTES (continued) Gulf Power Company 1998 Annual Report Revenues and Regulatory Cost Recovery Clauses The Company currently operates as a vertically integrated utility providing electricity to retail customers within its service area located in northwest Florida and to wholesale customers in the Southeast. Revenues, less affiliated transactions, by type of service were as follows: 1998 1997 1996 ------------------------------------- (in thousands) Retail $509,118 $521,620 $530,729 Wholesale 61,893 63,697 63,201 Other operating 36,865 23,779 22,673 - - - - - - - --------------------------------------------------------------- Total $607,876 $609,096 $616,603 =============================================================== The Company accrues revenues for service rendered but unbilled at the end of each fiscal period. The Company has a diversified base of customers and no single customer or industry comprises 10 percent or more of revenues. For all periods presented, uncollectible accounts averaged significantly less than 1 percent of revenues. Fuel costs are expensed as the fuel is used. The Company's electric rates include provisions to periodically adjust billings for fluctuations in fuel costs, the energy component of purchased power costs, and certain other costs. The Company also has similar cost recovery clauses for energy conservation costs, purchased power capacity costs, and environmental compliance costs. Revenues are adjusted monthly for differences between recoverable costs and amounts actually reflected in current rates. Depreciation and Amortization Depreciation of the original cost of depreciable utility plant in service is provided primarily by using composite straight-line rates, which approximated 3.8 percent in 1998 and 3.6 percent in 1997 and 1996. The increase in 1998 is attributable to new depreciation rates, which were approved by the FPSC in 1998. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost -- together with the cost of removal, less salvage -- is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Also, the provision for depreciation expense includes an amount for the expected cost of removal of facilities. Income Taxes The Company uses the liability method of accounting for income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. The Company is included in the consolidated federal income tax return of Southern Company. Utility Plant Utility plant is stated at original cost. Original cost includes: materials; labor; minor items of property; appropriate administrative and general costs; payroll-related costs such as taxes, pensions, and other benefits; and the estimated cost of funds used during construction. The cost of maintenance, repairs, and replacement of minor items of property is charged to maintenance expense. The cost of replacements of property (exclusive of minor items of property) is charged to utility plant. Cash and Cash Equivalents Temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. Financial Instruments The Company's financial instruments for which the carrying amount did not equal fair value at December 31 were as follows: Carrying Fair Amount Value --------------------------- (in thousands) Long-term debt: At December 31, 1998 $344,341 $357,100 At December 31, 1997 $350,320 $356,766 Capital trust preferred securities: At December 31, 1998 $85,000 $89,400 At December 31, 1997 $40,000 $40,800 - - - - - - - -------------------------------------------------------------- The fair values for long-term debt and preferred securities were based on either closing market prices or closing prices of comparable instruments. II-142 NOTES (continued) Gulf Power Company 1998 Annual Report Materials and Supplies Generally, materials and supplies include the cost of transmission, distribution, and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when installed. Provision for Injuries and Damages The Company is subject to claims and suits arising in the ordinary course of business. As permitted by regulatory authorities, the Company provides for the uninsured costs of injuries and damages by charges to income amounting to $1.2 million annually. The expense of settling claims is charged to the provision to the extent available. The accumulated provision of $1.3 million and $1.4 million at December 31, 1998 and 1997, respectively, is included in miscellaneous current liabilities in the accompanying Balance Sheets. Provision for Property Damage The Company provides for the cost of repairing damages from major storms and other uninsured property damages. This includes the full cost of storm and other damages to its transmission and distribution lines and the cost of uninsured damages to its generation and other property. The expense of such damages is charged to the provision account. At December 31, 1998, the accumulated provision for property damage was $1.6 million. In 1995, the FPSC approved the Company's request to increase the amount of its annual accrual to the accumulated provision for property damage account from $1.2 million to $3.5 million and approved a target level for the accumulated provision account between $25.1 and $36.0 million. The FPSC has also given the Company the flexibility to increase its annual accrual amount above $3.5 million, when the Company believes it is in a position to do so, until the account balance reaches $12 million. The Company accrued $6.5 million in 1998 and $3.9 million in 1997 to the accumulated provision for property damage. Charges to the provision account during 1998 totaled $4.2 million, which included $3.4 million related to Hurricane Georges. 2. RETIREMENT BENEFITS The Company has a defined benefit, trusteed, non-contributory pension plan that covers substantially all regular employees. The Company provides certain medical care and life insurance benefits for retired employees. Substantially all employees may become eligible for these benefits when they retire. Trusts are funded to the extent deductible under federal income tax regulations or to the extent required by the Company's regulatory commissions. In 1998, the Company adopted FASB Statement No. 132, Employers' Disclosure about Pensions and Other Postretirement Benefits. The measurement date is September 30 for each year. Pension Plan Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $130,794 $123,467 Service cost 4,107 3,897 Interest cost 9,572 9,301 Benefits paid (6,663) (4,852) Actuarial loss (gain) and employee transfers 5,202 (1,019) - - - - - - - --------------------------------------------------------------- Balance at end of year $143,012 $130,794 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $222,196 $191,152 Actual return on plan assets 1,310 35,886 Benefits paid (6,663) (4,852) Employee transfers (3,909) 10 - - - - - - - --------------------------------------------------------------- Balance at end of year $212,934 $222,196 =============================================================== II-143 NOTES (continued) Gulf Power Company 1998 Annual Report The accrued pension costs recognized in the Balance Sheet were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Funded status $ 69,922 $ 91,402 Unrecognized transition obligation (5,043) (5,764) Unrecognized prior service cost 4,869 5,244 Unrecognized net gain (55,978) (80,497) - - - - - - - --------------------------------------------------------------- Prepaid asset recognized in the Balance Sheets $ 13,770 $ 10,385 =============================================================== Components of the plan's net periodic cost were as follows: 1998 1997 1996 - - - - - - - ----------------------------------------------------------------- Service cost $ 4,107 $ 3,897 $ 3,880 Interest cost 9,572 9,301 9,129 Expected return on plan assets (14,827) (13,675) (13,410) Recognized net gain (1,891) (1,656) (1,248) Net amortization (347) (347) (443) - - - - - - - ----------------------------------------------------------------- Net pension income $ (3,386) $ (2,480) $ (2,092) ================================================================= The weighted average rates assumed in the actuarial calculations for both the pension plan and postretirement benefits were: 1998 1997 - - - - - - - ---------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25% 5.00% Long-term return on plan assets 8.50% 8.50% - - - - - - - ---------------------------------------------------------- Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $39,669 $33,656 Service cost 946 896 Interest cost 3,123 2,845 Benefits paid (1,068) (1,077) Actuarial loss and employee transfers 3,614 3,349 Amendments 3,019 - - - - - - - - --------------------------------------------------------------- Balance at end of year $49,303 $39,669 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $9,455 $7,996 Actual return on plan assets 54 1,407 Employer contributions 1,162 1,129 Benefits paid (1,068) (1,077) - - - - - - - --------------------------------------------------------------- Balance at end of year $9,603 $9,455 =============================================================== The accrued postretirement costs recognized in the Balance Sheet were as follows: 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Funded status $(39,700) $(30,214) Unrecognized transition obligation 5,079 5,435 Unrecognized prior service cost 2,900 - Unrecognized net loss 8,187 4,288 - - - - - - - --------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $(23,534) $(20,491) =============================================================== II-144 NOTES (continued) Gulf Power Company 1998 Annual Report Components of the plan's net periodic cost were as follows: 1998 1997 1996 - - - - - - - --------------------------------------------------------------- Service cost $ 946 $ 896 $ 939 Interest cost 3,123 2,845 2,330 Expected return on plan assets (717) (641) (565) Transition obligation 356 356 356 Prior service cost 119 - - Recognized net loss 128 184 86 - - - - - - - --------------------------------------------------------------- Net postretirement cost $3,955 $3,640 $3,146 =============================================================== An additional assumption used in measuring the accumulated postretirement benefit obligations was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005, and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would affect the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows (in thousands): 1 Percent 1 Percent Increase Decrease - - - - - - - ------------------------------------------------- ------------- Benefit obligation $3,808 $(3,218) Service and interest costs $319 $(261) =============================================================== Work Force Reduction Programs The Company recorded costs related to work force reduction programs of $2.8 million in 1998, $1.4 million in 1997, and $1.2 million in 1996. The Company has also incurred its pro rata share for the costs of affiliated companies' programs. The costs related to these programs were $0.2 million for 1998, $1.3 million for 1997, and $2.1 million for 1996. The Company has expensed all costs related to these work force reduction programs. 3. LITIGATION AND REGULATORY MATTERS FERC Review of Equity Returns On September 21, 1998, the FERC entered separate orders affirming the outcome of the administrative law judge's opinions in two proceedings in which the return on common equity component of formula rates contained in substantially all of the Company's wholesale power contracts was being challenged as unreasonably high. These orders resulted in no change in the wholesale power contracts that were the subject of such proceedings. The FERC also dismissed a complaint filed by three customers under long-term power sales agreements seeking to lower the equity return component in such agreements. These customers have filed applications for rehearing regarding each FERC order. In response to a requirement of the September 1998 FERC order, Southern Company filed a new equity return component on the long-term power sales contracts, to be effective January 5, 1999. The proposed equity return was lowered from 13.75 percent to 12.50 percent. The estimated impact on the Company's revenues at a 12.50% equity return would be approximately $0.8 million annually. The FERC placed the new rates into effect subject to refund. Also, this filing was consolidated with the new proceeding discussed below. On December 28, 1998, the FERC staff filed a motion asking the FERC to initiate a new proceeding regarding the equity return and other issues involving the Company's formula rate contracts. The motion was submitted pursuant to review procedures applicable to these contracts, and would be applicable to billings under such contracts on and after January 1, 1999. Environmental Cost Recovery In April 1993, the Florida Legislature adopted legislation for an Environmental Cost Recovery Clause (ECRC), which allows a utility to petition the FPSC for recovery of all prudent environmental compliance costs that are not being recovered through base rates or any other recovery mechanism. Such environmental costs include operation and maintenance expense, emission allowance expense, depreciation, and a return on invested capital. In January 1994, the FPSC approved the Company's initial petition under the ECRC for recovery of environmental costs. Initially, recovery under the ECRC was determined semi-annually. The FPSC approved annual recovery periods beginning with the October 1996 through September 1997 period. As of January 1999, the annual recovery period will be on a calendar-year basis as approved by the FPSC in May 1998. Recovery includes a true-up of the prior period and a projection of the ensuing period. During 1998 and 1997, the Company recorded ECRC revenues of $15.1 million and $10.2 million, respectively. II-145 NOTES (continued) Gulf Power Company 1998 Annual Report At December 31, 1998, the Company's liability for the estimated costs of environmental remediation projects for known sites was $7.1 million. These estimated costs are expected to be expended from 1999 through 2005. These projects have been approved by the FPSC for recovery through the ECRC discussed above. Therefore, the Company recorded $1.7 million in current assets and current liabilities and $5.4 million in deferred assets and liabilities representing the future recoverability of these costs. 4. CONSTRUCTION PROGRAM The Company is engaged in a continuous construction program, the cost of which is currently estimated to total $72 million in 1999, $100 million in 2000, and $262 million in 2001. The construction program is subject to periodic review and revision, and actual construction costs may vary from the above estimates because of numerous factors. These factors include changes in business conditions; revised load growth estimates; changes in environmental regulations; increasing costs of labor, equipment, and materials; and cost of capital. At December 31, 1998, significant purchase commitments were outstanding in connection with the construction program. The Company has budgeted $263.6 million for the years 1999 through 2002 for the estimated cost of a 532 megawatt combined cycle gas unit to be located in the eastern portion of its service area. The unit is expected to have an in-service date of June 2002, subject to regulatory approval. The Company will continue its construction program related to transmission and distribution facilities and the upgrading and extension of the useful lives of generating plants. See Management's Discussion and Analysis under "Environmental Matters" for information on the impact of the Clean Air Act Amendments of 1990 and other environmental matters. 5. FINANCING AND COMMITMENTS General Current projections indicate that funds required for construction and other purposes, including compliance with environmental regulations, will be derived from operations; the sale of additional first mortgage bonds, long-term unsecured debt, pollution control bonds, and preferred securities; bank notes; and capital contributions from Southern Company. In addition, the Company may issue additional long-term debt and preferred securities primarily for debt maturities and redemptions of higher-cost securities. Bank Credit Arrangements At December 31, 1998, the Company had $41.5 million of lines of credit with banks subject to renewal June 1 of each year, of which $35.5 million remained unused. In addition, the Company has two unused committed lines of credit totaling $61.9 million that were established for liquidity support of its variable rate pollution control bonds. In connection with these credit lines, the Company has agreed to pay commitment fees and/or to maintain compensating balances with the banks. The compensating balances, which represent substantially all of the cash of the Company except for daily working funds and like items, are not legally restricted from withdrawal. In addition, the Company has bid-loan facilities with thirteen major money center banks that total $205 million, of which $25.5 million was committed at December 31, 1998. Assets Subject to Lien The Company's mortgage, which secures the first mortgage bonds issued by the Company, constitutes a direct first lien on substantially all of the Company's fixed property and franchises. II-146 NOTES (continued) Gulf Power Company 1998 Annual Report Fuel Commitments To supply a portion of the fuel requirements of its generating plants, the Company has entered into long-term commitments for the procurement of fuel. In most cases, these contracts contain provisions for price escalations, minimum purchase levels, and other financial commitments. Total estimated long-term obligations at December 31, 1998, including the Company's portion relating to jointly owned facilities, were as follows: Year Fuel --------- ---------------- (in millions) 1999 $132 2000 88 2001 79 2002 78 2003 83 2004 - 2008 359 ---------------------------------------------------------- Total commitments $819 ========================================================== In 1988, the Company made an advance payment of $60 million to a coal supplier under an arrangement to lower the cost of future coal purchased under an existing contract. This payment was fully amortized to expense on a per ton basis as of March 1998. In December 1995, the Company made another payment of $22 million to the same coal supplier under an arrangement to lower the cost of future coal and/or to suspend the purchase of coal under an existing contract for 25 months. This payment was fully amortized to expense on a per ton basis as of March 1998. The amortization expense of these contract renegotiations was recovered through the fuel cost recovery clause discussed under "Revenues and Regulatory Cost Recovery Clauses" in Note 1. Lease Agreements In 1989, the Company and Mississippi Power jointly entered into a twenty-two year operating lease agreement for the use of 495 aluminum railcars. In 1994, a second lease agreement for the use of 250 additional aluminum railcars was entered into for twenty-two years. Both of these leases are for the transportation of coal to Plant Daniel. At the end of each lease term, the Company has the option to renew the lease. In 1997, three additional lease agreements for 120 cars each were entered into for three years, with a monthly renewal option for up to an additional nine months. The Company, as a joint owner of Plant Daniel, is responsible for one half of the lease costs. The lease costs are charged to fuel inventory and are allocated to fuel expense as the fuel is used. The Company's share of the lease costs charged to fuel inventories was $2.8 million in 1998, and $2.3 million in 1997. The annual amounts for 1999 through 2003 are expected to be $2.8 million, $2.1 million, $1.7 million, $1.7 million, and $1.7 million respectively, and after 2003 are expected to total $16.1 million. 6. JOINT OWNERSHIP AGREEMENTS The Company and Mississippi Power jointly own Plant Daniel, a steam-electric generating plant located in Jackson County, Mississippi. In accordance with an operating agreement, Mississippi Power acts as the Company's agent with respect to the construction, operation, and maintenance of the plant. The Company and Georgia Power jointly own Plant Scherer Unit No. 3. Plant Scherer is a steam-electric generating plant located near Forsyth, Georgia. In accordance with an operating agreement, Georgia Power acts as the Company's agent with respect to the construction, operation, and maintenance of the unit. The Company's pro rata share of expenses related to both plants is included in the corresponding operating expense accounts in the Statements of Income. II-147 NOTES (continued) Gulf Power Company 1998 Annual Report At December 31, 1998, the Company's percentage ownership and its investment in these jointly owned facilities were as follows: Plant Scherer Plant Unit No. 3 Daniel (coal-fired) (coal-fired) ----------------------------- (in thousands) Plant In Service $185,497(1) $224,907 Accumulated Depreciation $62,255 $113,327 Construction Work in Progress $615 $8,686 Nameplate Capacity (2) (megawatts) 205 500 Ownership 25% 50% - - - - - - - ------------------------------------------------------------------ (1) Includes net plant acquisition adjustment. (2) Total megawatt nameplate capacity: Plant Scherer Unit No. 3: 818 Plant Daniel: 1,000 7. LONG-TERM POWER SALES AGREEMENTS The Company and the other operating affiliates have long-term contractual agreements for the sale of capacity and energy to certain non-affiliated utilities located outside the system's service area. The unit power sales agreements are firm and pertain to capacity related to specific generating units. Because the energy is generally sold at cost under these agreements, profitability is primarily affected by revenues from capacity sales. The capacity revenues from these sales were $22.5 million in 1998, $24.9 million in 1997, and $25.4 million in 1996. See Note 3 to the financial statements under "FERC Review of Equity Returns." Unit power from specific generating plants of Southern Company is currently being sold to Florida Power Corporation (FPC), Florida Power & Light Company (FP&L), Jacksonville Electric Authority (JEA), and the City of Tallahassee, Florida. Under these agreements, 214 megawatts of net dependable capacity were sold by the Company during 1998, and sales will remain at that level until the expiration of the contracts in 2010, unless reduced by FPC, FP&L, and JEA after 2002. Capacity and energy sales to FP&L, the Company's largest single customer, provided revenues of $22.3 million in 1998, $25.4 million in 1997, and $27.2 million in 1996, or 3.4 percent, 4.1 percent, and 4.3 percent of operating revenues, respectively. 8. INCOME TAXES At December 31, 1998, the tax-related regulatory assets to be recovered from customers were $25.3 million. These assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. At December 31, 1998, the tax-related regulatory liabilities to be credited to customers were $52.5 million. These liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of the federal and state income tax provisions are as follows: 1998 1997 1996 ------------------------------------ (in thousands) Total provision for income taxes: Federal-- Currently payable $31,746 $34,522 $31,022 Deferred--current year 18,485 19,297 26,072 --reversal of prior years (22,952) (25,778) (24,780) - - - - - - - -------------------------------------------------------------------- 27,279 28,041 32,314 - - - - - - - -------------------------------------------------------------------- State-- Currently payable 5,137 5,975 4,394 Deferred--current year 2,745 2,868 3,904 --reversal of prior years (2,962) (3,434) (3,039) - - - - - - - -------------------------------------------------------------------- 4,920 5,409 5,259 - - - - - - - -------------------------------------------------------------------- Total 32,199 33,450 37,573 Less income taxes credited to other income (1,890) (1,584) (248) - - - - - - - -------------------------------------------------------------------- Total income taxes charged to operations $34,089 $35,034 $37,821 ==================================================================== II-148 NOTES (continued) Gulf Power Company 1998 Annual Report The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities, are as follows: 1998 1997 -------------------------- (in thousands) Deferred tax liabilities: Accelerated depreciation $155,833 $156,328 Property basis differences 20,330 19,220 Other 17,645 14,242 - - - - - - - --------------------------------------------------------------------- Total 193,808 189,790 - - - - - - - --------------------------------------------------------------------- Deferred tax assets: Federal effect of state deferred taxes 9,509 9,268 Postretirement benefits 7,644 6,976 Other 10,702 10,861 - - - - - - - --------------------------------------------------------------------- Total 27,855 27,105 - - - - - - - --------------------------------------------------------------------- Net deferred tax liabilities 165,953 162,685 Less current portion, net (165) (3,617) ===================================================================== Accumulated deferred income taxes in the Balance Sheets $166,118 $166,302 ===================================================================== Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation and amortization in the Statements of Income. Credits amortized in this manner amounted to $1.9 million in 1998, $2.2 million in 1997, and $2.3 million in 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. A reconciliation of the federal statutory income tax rate to the effective income tax rate is as follows: 1998 1997 1996 ---------------------------- Federal statutory rate 35% 35% 35% State income tax, net of federal deduction 4 4 4 Non-deductible book depreciation 1 1 1 Difference in prior years' deferred and current tax rate (2) (1) (1) Other, net (2) (4) (2) - - - - - - - ---------------------------------------------------------------- Effective income tax rate 36% 35% 37% ================================================================ The Company and the other subsidiaries of Southern Company file a consolidated federal tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. 9. COMPANY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES In January 1997, Gulf Power Capital Trust I (Trust I), of which the Company owns all of the common securities, issued $40 million of 7.625 percent mandatorily redeemable preferred securities. Substantially all of the assets of Trust I are $41 million aggregate principal amount of the Company's 7.625 percent junior subordinated notes due December 31, 2036. In January 1998, Gulf Power Capital Trust II (Trust II), of which the Company owns all of the common securities, issued $45 million of 7.0 percent mandatorily redeemable preferred securities. Substantially all of the assets of Trust II are $46 million aggregate principal amount of the Company's 7.0 percent junior subordinated notes due December 31, 2037. The Company considers that the mechanisms and obligations relating to the preferred securities, taken together, constitute a full and unconditional guarantee by the Company of payment obligations with respect to the preferred securities of Trust I and Trust II. Trust I and Trust II are subsidiaries of the Company, and accordingly are consolidated in the Company's financial statements. 10. SECURITIES DUE WITHIN ONE YEAR A summary of the improvement fund requirement and scheduled maturities and redemptions of long-term debt due within one year at December 31 is as follows: 1998 1997 ---------------------- (in thousands) Bond improvement fund requirement $ 850 $1,300 Less portion to be satisfied by certifying property additions 850 1,300 - - - - - - - ----------------------------------------------------------------- Cash requirement - - Maturities of first mortgage bonds - 45,000 Current portion of other long-term debt 27,000 8,327 - - - - - - - ----------------------------------------------------------------- Total $27,000 $53,327 ================================================================= The first mortgage bond improvement fund requirement amounts to 1 percent of each outstanding series of bonds authenticated under the indenture prior to II-149 NOTES (continued) Gulf Power Company 1998 Annual Report January 1 of each year, other than those issued to collateralize pollution control revenue bond obligations. The requirement may be satisfied by depositing cash, reacquiring bonds, or by pledging additional property equal to 1 and 2/3 times the requirement. 11. COMMON STOCK DIVIDEND RESTRICTIONS The Company's first mortgage bond indenture contains various common stock dividend restrictions which remain in effect as long as the bonds are outstanding. At December 31, 1998, retained earnings of $127 million were restricted against the payment of cash dividends on common stock under the terms of the mortgage indenture. 12. QUARTERLY FINANCIAL DATA (Unaudited) Summarized quarterly financial data for 1998 and 1997 are as follows: Net Income After Dividends Operating Operating on Preferred Quarter Ended Revenues Income Stock - - - - - - - -------------------------------------------------------------------- (in thousands) March 1998 $140,950 $15,237 $ 6,853 June 1998 177,130 23,742 13,364 September 1998 199,377 34,070 26,989 December 1998 133,061 15,216 9,315 March 1997 $141,374 $20,212 $10,740 June 1997 145,292 19,153 10,386 September 1997 193,710 34,750 27,484 December 1997 145,480 15,068 9,000 - - - - - - - -------------------------------------------------------------------- The Company's business is influenced by seasonal weather conditions and the timing of rate changes, among other factors. II-150
SELECTED FINANCIAL AND OPERATING DATA Gulf Power Company 1998 Annual Report - - - - - - - -------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $650,518 $625,856 $634,365 Net Income after Dividends on Preferred Stock (in thousands) $56,521 $57,610 $57,845 Dividends on Common Stock (in thousands) $57,200 $64,600 $58,300 Return on Average Common Equity (percent) 13.20 13.33 13.27 Total Assets (in thousands) $1,267,901 $1,265,612 $1,308,366 Gross Property Additions (in thousands) $69,731 $54,289 $61,386 - - - - - - - -------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $427,652 $428,718 $435,758 Preferred stock 4,236 13,691 65,102 Preferred stock subject to mandatory redemption - - - Trust preferred securities 85,000 40,000 - Long-term debt 317,341 296,993 331,880 - - - - - - - -------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $834,229 $779,402 $832,740 - - - - - - - -------------------------------------------------------------------------------------------------------------- Capitalization Ratios (percent): Common stock equity 51.3 55.0 52.3 Preferred stock 0.5 1.8 7.8 Trust preferred securities 10.2 5.1 - Long-term debt 38.0 38.1 39.9 - - - - - - - -------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 ============================================================================================================== First Mortgage Bonds (in thousands): Issued - - 55,000 Retired 45,000 25,000 50,930 Preferred Stock (in thousands): Issued - - - Retired 9,455 75,911 - - - - - - - - -------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 Standard and Poor's AA- AA- A+ Duff & Phelps AA- AA- AA- Preferred Stock - Moody's a2 a2 a2 Standard and Poor's A A A Duff & Phelps A+ A+ A+ - - - - - - - -------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 307,077 300,257 291,196 Commercial 46,370 44,589 43,196 Industrial 257 267 278 Other 268 264 162 - - - - - - - -------------------------------------------------------------------------------------------------------------- Total 353,972 345,377 334,832 ============================================================================================================== Employees (year-end) 1,328 1,328 1,384
II-151
SELECTED FINANCIAL AND OPERATING DATA Gulf Power Company 1998 Annual Report - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- 1995 1994 1993 1992 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $619,077 $578,813 $583,142 $570,902 Net Income after Dividends on Preferred Stock (in thousands) $57,154 $55,229 $54,311 $54,090 Dividends on Common Stock (in thousands) $46,400 $44,000 $41,800 $39,900 Return on Average Common Equity (percent) 13.27 13.15 13.29 13.62 Total Assets (in thousands) $1,341,859 $1,315,542 $1,307,809 $1,062,699 Gross Property Additions (in thousands) $63,113 $78,869 $78,562 $64,671 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $436,242 $425,472 $414,196 $403,190 Preferred stock 89,602 89,602 89,602 74,662 Preferred stock subject to mandatory redemption - - 1,000 2,000 Trust preferred securities - - - - Long-term debt 323,376 356,393 369,259 382,047 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $849,220 $871,467 $874,057 $861,899 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Capitalization Ratios (percent): Common stock equity 51.4 48.8 47.4 46.8 Preferred stock 10.5 10.3 10.4 8.9 Trust preferred securities - - - - Long-term debt 38.1 40.9 42.2 44.3 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ============================================================================================================================ First Mortgage Bonds (in thousands): Issued - - 75,000 25,000 Retired 1,750 48,856 88,809 117,693 Preferred Stock (in thousands): Issued - - 35,000 29,500 Retired 1,000 1,000 21,060 15,500 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A2 A2 A2 Standard and Poor's A+ A A A Duff & Phelps A+ A+ A+ A Preferred Stock - Moody's a2 a2 a2 a2 Standard and Poor's A A- A- A- Duff & Phelps A A A A- - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 283,421 280,859 274,194 267,591 Commercial 41,281 40,398 39,253 37,105 Industrial 278 283 274 270 Other 134 106 86 74 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 325,114 321,646 313,807 305,040 ============================================================================================================================ Employees (year-end) 1,501 1,540 1,565 1,613
II-152A
SELECTED FINANCIAL AND OPERATING DATA Gulf Power Company 1998 Annual Report - - - - - - - --------------------------------------------------------------------------------------------------------------------------- 1991 1990 1989 1988 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $565,207 $567,825 $527,821 $550,827 Net Income after Dividends on Preferred Stock (in thousands) $57,796 $38,714 $37,361 $45,698 Dividends on Common Stock (in thousands) $38,000 $37,000 $37,200 $35,400 Return on Average Common Equity (percent) 15.17 10.51 10.32 13.41 Total Assets (in thousands) $1,095,736 $1,084,579 $1,093,430 $1,097,225 Gross Property Additions (in thousands) $64,323 $62,462 $70,726 $67,042 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $390,981 $371,185 $365,471 $358,310 Preferred stock 55,162 55,162 55,162 55,162 Preferred stock subject to mandatory redemption 7,500 9,250 11,000 12,750 Trust preferred securities - - - - Long-term debt 434,648 475,284 484,608 497,069 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $888,291 $910,881 $916,241 $923,291 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Capitalization Ratios (percent): Common stock equity 44.0 40.8 39.9 38.8 Preferred stock 7.1 7.1 7.2 7.4 Trust preferred securities - - - - Long-term debt 48.9 52.1 52.9 53.8 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 =========================================================================================================================== First Mortgage Bonds (in thousands): Issued 50,000 - - 35,000 Retired 32,807 6,455 9,344 9,369 Preferred Stock (in thousands): Issued - - - - Retired 2,500 1,750 1,250 1,750 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A2 A2 A1 A1 Standard and Poor's A A A A Duff & Phelps A A AA- 4 Preferred Stock - Moody's a2 a2 a1 a1 Standard and Poor's A- A- A- A- Duff & Phelps A- A- A+ 5 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 261,210 256,111 251,341 246,450 Commercial 34,685 34,019 33,678 33,030 Industrial 264 252 240 206 Other 72 67 67 61 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 296,231 290,449 285,326 279,747 =========================================================================================================================== Employees (year-end) 1,598 1,615 1,614 1,601
II-152B
SELECTED FINANCIAL AND OPERATING DATA (continued) Gulf Power Company 1998 Annual Report - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $276,208 $277,609 $285,498 Commercial 160,960 164,435 164,181 Industrial 69,850 77,492 78,994 Other 2,100 2,084 2,056 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total retail 509,118 521,620 530,729 Sales for resale - non-affiliates 61,893 63,697 63,201 Sales for resale - affiliates 42,642 16,760 17,762 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 613,653 602,077 611,692 Other revenues 36,865 23,779 22,673 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total $650,518 $625,856 $634,365 ================================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 4,437,558 4,119,492 4,159,924 Commercial 3,111,933 2,897,887 2,808,634 Industrial 1,833,575 1,903,050 1,808,086 Other 18,952 18,101 17,815 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total retail 9,402,018 8,938,530 8,794,459 Sales for resale - non-affiliates 1,341,990 1,531,179 1,534,097 Sales for resale - affiliates 1,758,150 848,135 709,647 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total 12,502,158 11,317,844 11,038,203 ================================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.22 6.74 6.86 Commercial 5.17 5.67 5.85 Industrial 3.81 4.07 4.37 Total retail 5.41 5.84 6.03 Sales for resale 3.37 3.38 3.61 Total sales 4.91 5.32 5.54 Average Annual Kilowatt-Hour Use Per Residential Customer 14,577 13,894 14,457 Average Annual Revenue Per Residential Customer $907.35 $936.30 $992.17 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,188 2,174 2,174 Maximum Peak-Hour Demand - Net of SEPA (megawatts): Winter 2,040 1,844 2,136 Summer 2,146 2,032 1,961 Annual Load Factor (percent) 55.3 55.5 51.4 Plant Availability - Fossil-Steam (percent) 87.6 91.0 91.8 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 89.2 87.1 87.8 Oil and gas 2.0 0.4 0.5 Purchased power - From non-affiliates 5.5 3.5 2.7 From affiliates 3.3 9.0 9.0 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 ================================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,523 10,436 10,484 Cost of fuel per million BTU (cents) 160.22 190.75 192.22 Average cost of fuel per net kilowatt-hour generated (cents) 1.69 1.99 2.02 ==================================================================================================================================
II-153
SELECTED FINANCIAL AND OPERATING DATA (continued) Gulf Power Company 1998 Annual Report - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ 1995 1994 1993 1992 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Operating Revenues (in thousands): Residential $276,155 $252,598 $244,967 $235,296 Commercial 159,260 146,394 137,308 133,071 Industrial 81,606 82,169 87,526 91,320 Other 1,993 1,955 1,882 1,784 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total retail 519,014 483,116 471,683 461,471 Sales for resale - non-affiliates 60,413 66,111 72,209 70,078 Sales for resale - affiliates 18,619 17,353 23,166 24,075 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total revenues from sales of electricity 598,046 566,580 567,058 555,624 Other revenues 21,031 12,233 16,084 15,278 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total $619,077 $578,813 $583,142 $570,902 ============================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 4,014,142 3,751,932 3,712,980 3,596,515 Commercial 2,708,243 2,548,846 2,433,382 2,369,236 Industrial 1,794,754 1,847,114 2,029,936 2,179,435 Other 17,345 17,354 16,944 16,649 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total retail 8,534,484 8,165,246 8,193,242 8,161,835 Sales for resale - non-affiliates 1,396,474 1,418,977 1,460,105 1,430,908 Sales for resale - affiliates 759,341 874,050 1,029,787 1,208,771 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 10,690,299 10,458,273 10,683,134 10,801,514 ============================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.88 6.73 6.60 6.54 Commercial 5.88 5.74 5.64 5.62 Industrial 4.55 4.45 4.31 4.19 Total retail 6.08 5.92 5.76 5.65 Sales for resale 3.67 3.64 3.83 3.57 Total sales 5.59 5.42 5.31 5.14 Average Annual Kilowatt-Hour Use Per Residential Customer 14,148 13,486 13,671 13,553 Average Annual Revenue Per Residential Customer $973.35 $907.92 $901.96 $886.66 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,174 2,174 2,174 2,174 Maximum Peak-Hour Demand - Net of SEPA (megawatts): Winter 1,732 1,801 1,571 1,533 Summer 2,040 1,795 1,898 1,828 Annual Load Factor (percent) 53.0 56.7 54.5 55.0 Plant Availability - Fossil-Steam (percent) 84.0 92.2 88.9 91.2 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Source of Energy Supply (percent): Coal 86.8 87.2 84.5 87.7 Oil and gas 0.4 0.2 0.5 0.1 Purchased power - From non-affiliates 4.0 2.8 1.5 0.8 From affiliates 8.8 9.8 13.5 11.4 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 100.0 100.0 100.0 100.0 ============================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,609 10,614 10,390 10,347 Cost of fuel per million BTU (cents) 196.62 189.55 197.37 200.30 Average cost of fuel per net kilowatt-hour generated (cents) 2.09 2.01 2.05 2.07 ==============================================================================================================================
II-154A
SELECTED FINANCIAL AND OPERATING DATA (continued) Gulf Power Company 1998 Annual Report - - - - - - - --------------------------------------------------------------------------------------------------------------------------- 1991 1990 1989 1988 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $231,220 $217,843 $203,781 $184,036 Commercial 130,691 124,066 118,897 107,615 Industrial 92,300 91,041 84,671 72,634 Other 1,860 1,805 1,586 1,402 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 456,071 434,755 408,935 365,687 Sales for resale - non-affiliates 69,636 73,855 67,554 117,466 Sales for resale - affiliates 29,343 38,563 39,244 48,277 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 555,050 547,173 515,733 531,430 Other revenues 10,157 20,652 12,088 19,397 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total $565,207 $567,825 $527,821 $550,827 =========================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 3,455,100 3,360,838 3,293,750 3,154,541 Commercial 2,272,690 2,217,568 2,169,497 2,088,598 Industrial 2,117,408 2,177,872 2,094,670 1,968,091 Other 17,118 18,866 17,209 16,257 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 7,862,316 7,775,144 7,575,126 7,227,487 Sales for resale - non-affiliates 1,550,018 1,775,703 1,640,355 1,911,759 Sales for resale - affiliates 1,236,223 1,435,558 1,461,036 2,326,238 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 10,648,557 10,986,405 10,676,517 11,465,484 =========================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.69 6.48 6.19 5.83 Commercial 5.75 5.59 5.48 5.15 Industrial 4.36 4.18 4.04 3.69 Total retail 5.80 5.59 5.40 5.06 Sales for resale 3.55 3.50 3.44 3.91 Total sales 5.21 4.98 4.83 4.64 Average Annual Kilowatt-Hour Use Per Residential Customer 13,320 13,173 13,173 12,883 Average Annual Revenue Per Residential Customer $891.38 $853.86 $815.00 $751.60 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,174 2,174 2,174 2,174 Maximum Peak-Hour Demand - Net of SEPA (megawatts): Winter 1,418 1,310 1,814 1,395 Summer 1,740 1,778 1,691 1,613 Annual Load Factor (percent) 57.0 55.2 52.6 56.5 Plant Availability - Fossil-Steam (percent) 92.2 89.2 89.1 88.2 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 82.0 69.8 78.3 93.2 Oil and gas 0.1 0.5 0.2 0.4 Purchased power - From non-affiliates 0.5 0.6 0.4 0.4 From affiliates 17.4 29.1 21.1 6.0 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 =========================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,636 10,765 10,621 10,461 Cost of fuel per million BTU (cents) 203.60 206.06 193.70 178.00 Average cost of fuel per net kilowatt-hour generated (cents) 2.17 2.22 2.06 1.86 ===========================================================================================================================
II-154B MISSISSIPPI POWER COMPANY FINANCIAL SECTION II-155 MANAGEMENT'S REPORT Mississippi Power Company 1998 Annual Report The management of Mississippi Power Company has prepared--and is responsible for--the financial statements and related information included in this report. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances and necessarily include amounts that are based on best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that books and records reflect only authorized transactions of the Company. Limitations exist in any system of internal controls, however, based upon a recognition that the cost of the system should not exceed its benefits. The Company believes its system of internal accounting control maintains an appropriate cost/benefit relationship. The Company's system of internal accounting controls is evaluated on an ongoing basis by the internal audit staff. The Company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, composed of four directors who are not employees, provides a broad overview of management's financial reporting and control functions. Periodically, this committee meets with management, the internal auditors, and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal controls, and financial reporting matters. The internal auditors and independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the Company's operations are conducted according to a high standard of business ethics. In management's opinion, the financial statements present fairly, in all material respects, the financial position, results of operations, and cash flows of Mississippi Power Company in conformity with generally accepted accounting principles. /s/ Dwight H. Evans Dwight H. Evans President and Chief Executive Officer /s/ Michael W. Southern Michael W. Southern Vice President, Secretary, Treasurer and Chief Financial Officer February 10, 1999 II-156 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Mississippi Power Company: We have audited the accompanying balance sheets and statements of capitalization of Mississippi Power Company (a Mississippi corporation and a wholly owned subsidiary of Southern Company) as of December 31, 1998 and 1997, and the related statements of income, retained earnings, paid-in capital, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements (pages II-167 through II-182) referred to above present fairly, in all material respects, the financial position of Mississippi Power Company as of December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia February 10, 1999 11-157 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Mississippi Power Company 1998 Annual Report RESULTS OF OPERATIONS Earnings Mississippi Power Company's 1998 net income after dividends on preferred stock was $55.1 million, reflecting a 2.0 percent or $1.1 million increase over the prior year. This change is primarily attributable to higher retail and wholesale revenues. In 1997, earnings were $54.0 million, up $1.3 million from the prior year. This earnings increase resulted primarily from lower operating expenses. Revenues The following table summarizes the factors impacting operating revenues for the past three years: Increase (Decrease) From Prior Year ------------------------------------- 1998 1997 1996 ------------------------------------- (in thousands) Retail -- Change in base rates (PEP and ECO Plan) $ 335 $ 3,177 $ (402) Sales growth 4,787 109 11,187 Weather 7,091 (1,118) (5,585) Fuel cost recovery and other 13,112 948 (1,255) ----------------------------------------------------------------- Total retail 25,325 3,116 3,945 ---------------------------------------------------- ------------ Sales for resale -- Non-affiliates 16,084 5,464 7,776 Affiliates 8,142 (11,606) 14,139 ----------------------------------------------------------------- Total sales for resale 24,226 (6,142) 21,915 Other operating revenues 1,992 2,585 1,616 ----------------------------------------------------------------- Total operating revenues $51,543 $ (441) $27,476 ================================================================= Percent change 9.5% (0.1)% 5.3% ----------------------------------------------------------------- Retail revenues of $443 million in 1998 increased 6.1 percent from 1997. Continued growth in the service area and the positive impact of weather on energy sales were the predominant factors contributing to the rise in revenues. Retail revenues for 1997 reflected a 0.8 percent increase over the prior year due to the 1996 Performance Evaluation Plan (PEP) retail rate increase and the January 1997 Environmental Compliance Overview Plan (ECO Plan) retail rate increase. Changes in base rates reflect any rate changes made under the PEP and ECO Plan. Fuel revenues generally represent the direct recovery of fuel expense including purchased power. Therefore, changes in recoverable fuel expenses are offset with corresponding changes in fuel revenues and have no effect on net income. Energy sales to non-affiliates include economy sales and amounts sold under short-term contracts. Sales for resale to non-affiliates are influenced by those utilities' own customer demand, plant availability, and the cost of their predominant fuels. Included in sales for resale to non-affiliates are revenues from rural electric cooperative associations and municipalities located in southeastern Mississippi. Energy sales to these customers increased 9.8 percent in 1998 and 3.6 percent in 1997, with the related revenues rising 11.3 percent and 1.6 percent, respectively. The customer demand experienced by these utilities is determined by factors very similar to Mississippi Power's. Revenues from other sales outside the service area increased in 1998 and 1997 primarily due to power marketing activities. These increases were primarily offset by increases in purchased power from non-affiliates and, as a result, had no significant effect on net income. Sales to affiliated companies within the Southern electric system will vary from year to year depending on demand and the availability and cost of generating resources at each company. These sales have no material impact on earnings. 11-158 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report Below is a breakdown of kilowatt-hour sales for 1998 and the percent change for the last three years: 1998 Percent Change ----------- ------------------------------ KWH 1998 1997 1996 (in millions) Residential 2,249 10.3% (2.0)% 1.9% Commercial 2,623 9.0 4.0 3.3 Industrial 3,729 (6.4) 0.6 3.8 Other 40 - 2.6 1.9 ---------- Total retail 8,641 2.0 0.9 3.2 Sales for Resale -- Non-affiliates 3,158 9.1 6.2 9.4 Affiliates 552 15.2 (31.0) 184.7 ---------- Total 12,351 4.3 0.2 8.7 ================================================================== Residential and commercial sales increased in 1998 10.3 percent and 9.0 percent respectively, and industrial sales decreased 6.4 percent. The increases can be attributed primarily to sales growth and hotter temperatures in the summer months. The decrease in industrial sales was due primarily to a large industrial customer being out of service because of damages incurred from Hurricane Georges. Residential sales in 1997 declined 2.0 percent while sales to commercial and industrial customers increased by 4.0 percent and 0.6 percent, respectively. Milder-than-normal temperatures experienced in 1997 contributed to the moderate sales. The Company anticipates continued growth in energy sales as the economy improves within its service area. The casino industry and ancillary services, such as lodging, food, transportation, etc., are some of the factors that may influence the economy of the Company's service area. Also, energy demand is expected to grow as a result of a larger and more fully employed population. Expenses Total operating expenses were $515 million in 1998 reflecting an increase of $49.1 million or 10.6 percent over the prior year. The increase was due primarily to higher fuel expenses, higher maintenance and higher other operation costs. In 1997, total operating expenses decreased by 0.3 percent from the prior year due primarily to lower administrative and general expenses. Fuel costs are the single largest expense for the Company. Fuel expenses in 1998 increased 10.2 percent due to a 3.1 percent increase in generation and a higher average cost of fuel. In 1998, expenses related to purchased power from non-affiliates increased 133.0 percent and expenses related to purchased power from affiliates decreased 4.6 percent. The increased generation was due to higher demand for energy across the Southern electric system. Further, the higher demand for energy resulted in higher purchased power costs from non-affiliates. In 1997, fuel costs increased because of a 1.1 percent increase in generation caused by the higher demand for energy in the retail sector. Expenses related to purchased power from non-affiliates decreased and expenses related to purchased power from affiliates increased due to the availability of energy within the Southern electric system. Purchased power expense increased $18 million (128.4 percent) to meet higher territorial energy demands and power marketing activities. Energy purchased for power marketing activities was resold to non-affiliated third parties and had no significant effect on net income. Sales and purchases among Mississippi Power and its affiliates will vary from period to period depending on demand and the availability and variable production cost at each generating unit in the Southern electric system. The amount and sources of generation and the average cost of fuel per net kilowatt-hour generated were as follows: 1998 1997 1996 ---------------------------- Total generation (millions of kilowatt hours) 10,610 10,289 10,180 Sources of generation (percent) -- Coal 80 85 85 Gas 20 15 15 Average cost of fuel per net kilowatt-hour generated (cents) -- 1.62 1.54 1.57 ============================================================== Other operation expenses increased 7.5 percent in 1998 primarily due to continuing expenses related to a new customer service system, modification of certain information systems for year 2000 readiness discussed below, and costs related to work force reduction programs. In 1997, other operation expense decreased 3.5 percent due to lower administrative and general expenses. II-159 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report Maintenance expenses increased 6.6 percent in 1998 due to scheduled maintenance performed at Plants Daniel and Watson, as well as other projects. In 1998, depreciation and amortization expenses increased 4.1 percent primarily due to additional plant investment and increased amortization of regulatory assets. Comparisons of taxes other than income taxes for 1998 and 1997 show increases of 4.4 percent and 1.1 percent, respectively, due to higher municipal franchise taxes resulting from higher retail revenues. Effects of Inflation Mississippi Power is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the Company is recovering its costs of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on the Company because of the large investment in long-lived utility plant. Conventional accounting for historical costs does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations, such as long-term debt and preferred stock. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings potential. The level of future earnings depends on numerous factors ranging from regulatory matters to energy sales growth to a less regulated more competitive environment. Expenses are subject to constant review and cost control programs. See Note 2 to the financial statements under "Workforce Reduction Programs" for information regarding the Company's workforce reduction plan of 1997. The Company currently operates as a vertically integrated company providing electricity to customers within its traditional service area located in southeastern Mississippi. Prices for electricity provided by the Company to retail customers are set by the MPSC under cost-based regulatory principles. Mississippi Power is also maximizing the utility of invested capital and minimizing the need for capital by refinancing, decreasing the average fuel stockpile, raising generating plant availability and efficiency, and aggressively controlling the construction budget. Operating revenues will be affected by any changes in rates under the PEP, the Company's performance based ratemaking plan, and the ECO Plan. PEP has proven to be a stabilizing force on electric rates, with only moderate changes in rates taking place. The ECO Plan provides for recovery of costs (including costs of capital) associated with environmental projects approved by the Mississippi Public Service Commission (MPSC), most of which are required to comply with Clean Air Act Amendments of 1990 (Clean Air Act) regulations. The ECO Plan is operated independently of PEP. The Clean Air Act and other important environmental items are discussed later under "Environmental Matters." The Federal Energy Regulatory Commission (FERC) regulates the Company's wholesale rate schedules, power sales contracts and transmission facilities. The FERC is currently reviewing the rate of return on common equity included in certain contracts and may require such returns to be lowered, possibly retroactively. Further discussion of PEP, the ECO Plan, and proceedings before the FERC is found in Note 3 to the financial statements herein. Future earnings in the near term will depend upon growth in energy sales, which is subject to a number of factors. These factors include weather, competition, changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, and the rate of economic growth in Mississippi Power's service area. The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Energy Act allows Independent Power Producers (IPPs) to access a utility's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for II-160 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report a utility's large industrial and commercial customers and sell energy generation to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. The Company is aggressively working to maintain and expand its share of wholesale sales in the Southeastern power markets. Although the Energy Act does not permit retail transmission access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in various stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Restructuring initiatives are being discussed in Mississippi; none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. In the event that a portion of the Company's operations is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. The inability of Mississippi Power to recover its investment, including regulatory assets, could have a material adverse effect on the financial condition of the Company. The Company is attempting to minimize or reduce its cost exposure. Continuing to be a low-cost producer could provide significant opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless Mississippi Power remains a low-cost producer and provides quality service, the Company's retail energy sales growth could be limited, and this could significantly erode earnings. The Company is subject to the provisions of FASB Statement 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of the Company's operation is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. Exposure to Market Risks Due to cost-based rate regulation, the Company has limited exposure to market volatility in interest rates and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the Company enters into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statements as incurred. At December 31, 1998, exposure from these activities was not material to the Company's financial position, results of operation, or cash flow. Also, based on the Company's overall interest rate exposure at December 31, 1998, a near-term 100 basis point change in interest rates would not materially affect the financial statements. New Accounting Standards The FASB has issued Statement No.133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments - including certain derivative instruments embedded in other contracts - and for hedging activities. The Company has not yet quantified the impact of adopting this statement on its financial statements; however, the adoption could increase volatility in earnings and other comprehensive income. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Cost of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. II-161 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, reflecting gains and losses rather than revenues and purchased power expense. Energy trading contracts are defined as energy contracts entered into with the objective of generating profits on or from exposure to shifts or changes in market prices. The Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the financial statements. Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard wired into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space was used until the mid-1990s. Unless corrected before the year 2000, affected software systems and devices containing a chip or microprocessor with date and time function could incorrectly process dates or the systems may cease to function. The Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. The Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year 2000 and beyond. Critical systems include, but are not limited to, safe shutdown systems, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status The Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. The Company's Year 2000 Program was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in the phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices and applications into the year 2000. The Southern Company has completed more than 70 percent of the activities in its work plan. The percentage of completion and projected completion by function is as follows: Work Plan - - - - - - - -------------------------------------------------------------------------- Remediation Project Inventory Assessment Testing Completion - - - - - - - -------------------------------------------------------------------------- Generation 100% 100% 70% 6/99 Energy Management 100 100 90 6/99 Transmission and Distribution 100 100 100 1/99 Telecommunications 100 100 50 6/99 Corporate Applications 100 100 90 3/99 - - - - - - - -------------------------------------------------------------------------- Year 2000 Costs Current projected costs for Year 2000 readiness are approximately $4.9 million. These costs include labor necessary to identify, test, and renovate affected devices and systems. From its inception through December 31, 1998, the year 2000 program costs, recognized as expense, amounted to $3.2 million. II-162 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report Year 2000 Risks The Company is implementing a detailed process to minimize the possibility of service interruptions related to Year 2000. The Company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operations. The Company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruption in service that may occur within the service territory to be isolated and short in duration. The Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the loss of any single bulk transmission element in its service territory. The Company has followed a proven methodology for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, the Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council-coordinated national drills during 1999. The Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to the Company's operations. Among such critical third parties are fuel, transportation, telecommunication, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to the Company is being developed. There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their Year 2000 issues. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the Company is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, the Company is drawing on that experience to make risk assessments and developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. The Company is identifying critical operational location, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the service territory isolated and short in duration. FINANCIAL CONDITION Overview The principal change in Mississippi Power's financial condition during 1998 was gross property additions to utility plant of $68 million. Funding for gross property additions and other capital requirements has been provided from operating activities, principally earnings and the non-cash charges to income of depreciation and amortization. The Statements of Cash Flows provide additional details. Financing Activity The Company continued to improve its financial position by issuing pollution control bonds and retiring higher-cost issues in 1998. The Company sold $13.5 million of pollution control bonds and increased unsecured debt by $90 million. Retirements, including maturities during 1998, totaled $75 million of first mortgage bonds and $13 million of pollution control bonds. See the Statements of Cash Flows for further details. Composite financing rates for the years 1996 through 1998 as of year-end were as follows: 1998 1997 1996 ---------------------------- Composite interest rate on long-term debt 6.14% 6.16% 6.03% Composite preferred stock dividend rate 6.33% 6.33% 6.58% Composite interest rate on preferred securities 7.75% 7.75% - ============================================================ II-163 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report The decrease in the composite dividend rate on preferred stock in 1997 was primarily the result of retirements. Capital Structure At year-end 1998, the Company's ratio of common equity to total capitalization, excluding long-term debt due within one year, remained at the same level as in 1997 at 52.1 percent. Capital Requirements for Construction The Company's projected construction expenditures for the next three years total $164 million ($67 million in 1999, $52 million in 2000, and $45 million in 2001). The major emphasis within the construction program will be on the upgrade of existing facilities. In February 1999, the Company signed an interim construction agency agreement with Escatawpa Funding ("Escatawpa"), a limited partnership, that calls for the Company to design and construct, as agent for Escatawpa, a 1064 megawatt natural gas combined cycle facility. On or before April 30, 1999, Escatawpa and the Company anticipate entering into an Agreement for Lease (which will supersede the interim construction agency agreement), and a Lease Agreement. It is anticipated that the total project will cost approximately $406 million, and upon project completion, the Company will lease the facility from Escatawpa. If the anticipated lease arrangement is not reached, the Company will either exercise its purchase option or Escatawpa will sell the facility to a third party. Revisions to projected construction expenditures may be necessary because of factors such as changes in business conditions, revised load projections, the availability and cost of capital, and changes in environmental regulations, and alternatives such as leasing. Other Capital Requirements In addition to the funds required for the Company's construction program, approximately $80.1 million will be required by the end of 2001 for present sinking fund requirements and maturities of long-term debt. Mississippi Power plans to continue, when economically feasible, to retire higher cost debt and preferred stock and replace these obligations with lower-cost capital if market conditions permit. Environmental Matters In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act -- the acid rain compliance provision of the law -- significantly affected Mississippi Power and the other operating companies of Southern Company. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating plants in the Southern electric system. As a result of Southern Company's compliance strategy, an additional 22 generating units were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected plants by switching to low-sulfur coal, which required some equipment upgrades. Construction expenditures for Phase I compliance totaled approximately $65 million for Mississippi Power. For Phase II sulfur dioxide compliance, Southern Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Current compliance strategy for Phase II could require total estimated construction expenditures of approximately $70 million, of which $16 million remains to be spent. Phase II compliance is not expected to have a material impact on Mississippi Power. Mississippi Power's ECO Plan is designed to allow recovery of costs of compliance with the Clean Air Act, as well as other environmental statutes and regulations. The MPSC reviews environmental projects and the Company's environmental policy through the ECO Plan. Under the ECO Plan, any increase in the annual revenue requirement is limited to 2 percent of retail revenues. Mississippi Power's management believes that the ECO Plan provides for recovery of the Clean Air Act costs. See Note 3 to the financial statements under "Environmental Compliance Overview Plan" for additional information. A significant portion of costs related to the acid rain provision of the Clean Air Act is expected to be recovered through existing ratemaking II-164 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report provisions. However, there can be no assurance that all Clean Air Act costs will be recovered. In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the new rules. The final rules affect 22 states that at present does not include Mississippi. The EPA is presently evaluating whether or not to bring an additional 15 states under this regional haze rule. Misssissippi is one of those new 15 states. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various matters including: emission control strategies for ozone non-attainment areas; additional controls for hazardous air pollutant emissions; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. The Company must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the Company could incur costs to clean up properties currently or previously owned. Upon identifying potential sites, the Company conducts studies, when possible, to determine the extent of any required cleanup costs. Should remediation be determined to be probable, reasonable estimates of costs to clean up such sites are developed and recognized in the financial statements. A currently owned site where manufactured gas plant operations were located prior to the Company's ownership has been investigated for potential remediation. Remediation is scheduled for 1999. See Note 3 to the financial statements under "Environmental Compliance Overview Plan" for additional information. Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; and the Endangered Species Act. Changes to these laws could affect many areas of the Company's operations. The full impact of any such changes cannot be determined at this time. Compliance with possible additional legislation related to global climate change, electromagnetic fields, and other environmental and health concerns could significantly affect the Company. The impact of new legislation -- if any - - - - - - - -- will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for lawsuits alleging damages caused by electromagnetic fields. The likelihood or outcome of such potential lawsuits cannot be determined at this time. Sources of Capital At December 31, 1998, the Company had $76.3 million of unused committed credit agreements. The Company had $13 million of short term notes payable outstanding at year end 1998. It is anticipated that the funds required for construction and other purposes, including compliance with environmental regulations, will be derived from sources similar to those used in the past. These sources were primarily the issuances of first mortgage bonds and preferred securities, in addition to pollution control revenue bonds issued for the Company's benefit by public authorities. The Company issued unsecured debt in 1998. In this regard, Mississippi Power sought and obtained stockholder approval in 1997 to amend its corporate charter eliminating restrictions on the amounts of unsecured indebtedness the Company may incur. Mississippi Power is required to meet certain coverage requirements specified in its mortgage indenture and corporate charter to issue new first mortgage bonds and preferred stock. The Company's coverage ratios are sufficiently high enough to permit, at present interest rate levels, any foreseeable security sales. The amount of securities which the Company will be II-165 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Mississippi Power Company 1998 Annual Report permitted to issue in the future will depend upon market conditions and other factors prevailing at that time. Cautionary Statement Regarding Forward-Looking Information This annual report, including the foregoing Management's Discussion and Analysis, contains forward-looking and historical information. The Company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the Company's markets; potential business strategies -- including acquisitions or dispositions of assets or internal restructuring -- that may be pursued by the Company; state and federal rate regulation; changes in or application of environmental and other laws and regulations to which the Company is subject; political, legal and economic conditions and developments; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; and other factors discussed in the reports (including Form 10-K) filed from time to time by the Company with the SEC. II-166
STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Mississippi Power Company 1998 Annual Report =========================================================================================================================== 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Revenues (Notes 1, 3, and 7): Revenues $ 576,846 $ 533,445 $ 522,199 Revenues from affiliates 18,285 10,143 21,830 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total operating revenues 595,131 543,588 544,029 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation-- Fuel 156,539 142,059 141,532 Purchased power from non-affiliates 33,872 14,536 17,960 Purchased power from affiliates 36,037 37,794 33,245 Other 109,993 102,365 106,061 Maintenance 50,404 47,302 47,091 Depreciation and amortization 47,450 45,574 44,906 Taxes other than income taxes 45,965 44,034 43,545 Federal and state income taxes (Note 8) 34,499 31,968 32,618 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total operating expenses 514,759 465,632 466,958 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Income 80,372 77,956 77,071 Other Income (Expense): Interest income 947 857 239 Other, net 2,498 2,368 4,145 Income taxes applicable to other income (165) 588 (932) - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Income Before Interest and Other Charges 83,652 81,769 80,523 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Interest and Other Charges: Interest on long-term debt 20,567 19,856 19,898 Interest on notes payable 943 96 1,416 Amortization of debt discount, premium, and expense, net 1,446 1,577 1,547 Other interest charges 790 574 40 Distributions on preferred securities of subsidiary trust 2,796 2,369 - - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Interest and other charges, net 26,542 24,472 22,901 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Net Income 57,110 57,297 57,622 Dividends on Preferred Stock 2,005 3,287 4,899 - - - - - - - -------------------------------------------------------------------------------------------------------------------------- Net Income After Dividends on Preferred Stock $ 55,105 $ 54,010 $ 52,723 =========================================================================================================================== The accompanying notes are an integral part of these statements.
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STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Mississippi Power Company 1998 Annual Report ================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Activities: Net income $ 57,110 $ 57,297 $ 57,622 Adjustments to reconcile net income to net cash provided by operating activities-- Depreciation and amortization 51,517 49,661 50,551 Deferred income taxes 11,620 (1,809) 74 Other, net (12,175) 3,206 9,443 Changes in certain current assets and liabilities-- Receivables, net (5,486) (8,583) 5,118 Inventories (5,050) 3,148 4,973 Payables (389) 8,357 2,077 Taxes accrued (2,457) 2,515 532 Other (1,604) 1,465 (240) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash provided from operating activities 93,086 115,257 130,150 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Investing Activities: Gross property additions (68,231) (55,375) (61,314) Other (324) (489) (2,258) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash used for investing activities (68,555) (55,864) (63,572) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Financing Activities: Proceeds-- Capital contribution 85 - 27 Pollution control bonds 13,520 - - Preferred securities - 35,000 - Other long-term debt 90,000 - 80,000 Retirements-- Preferred stock (87) (42,518) - First mortgage bonds (75,000) - (45,447) Pollution control bonds (13,020) (10) (10) Other long-term debt - - (55,000) Increase (decrease) in notes payable, net 13,000 - - Payment of preferred stock dividends (2,005) (3,287) (4,899) Payment of common stock dividends (51,700) (49,400) (43,900) Miscellaneous (2,429) (1,804) (2,932) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash used for financing activities (27,636) (62,019) (72,161) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net Change in Cash and Cash Equivalents (3,105) (2,626) (5,583) Cash and Cash Equivalents at Beginning of Year 4,432 7,058 12,641 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Cash and Cash Equivalents at End of Year $ 1,327 $ 4,432 $ 7,058 ================================================================================================================================ Supplemental Cash Flow Information: Cash paid during the period for-- Interest (net of amount capitalized) $ 26,133 $ 22,297 $ 21,467 Income taxes 26,847 33,450 34,072 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- ( ) Denotes use of cash. The accompanying notes are an integral part of these statements.
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BALANCE SHEETS At December 31, 1998 and 1997 Mississippi Power Company 1998 Annual Report ============================================================================================================================= ASSETS 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- (in thousands) Utility Plant: Plant in service, at original cost (Notes 1 and 6) $ 1,553,112 $ 1,518,402 Less accumulated provision for depreciation 583,957 559,098 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- 969,155 959,304 Construction work in progress 51,517 41,083 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 1,020,672 1,000,387 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Other Property and Investments 979 650 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 1,327 4,432 Receivables-- Customer accounts receivable 29,829 32,220 Regulatory clauses under recovery 8,042 7,619 Other accounts and notes receivable 12,495 8,666 Affiliated companies 10,946 7,398 Accumulated provision for uncollectible accounts (621) (698) Fossil fuel stock, at average cost 16,418 10,651 Materials and supplies, at average cost 18,735 19,452 Current portion of accumulated deferred income taxes 4,248 8,379 Prepayments 1,651 1,791 Vacation pay deferred 4,717 5,030 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 107,787 104,940 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Deferred Charges: Debt expense and loss, being amortized 13,713 12,234 Deferred charges related to income taxes (Note 8) 22,697 21,906 Long-term notes receivable 2,072 2,837 Workforce Reduction Plan 12,748 18,236 Miscellaneous 8,937 5,639 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 60,167 60,852 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total Assets $ 1,189,605 $ 1,166,829 ============================================================================================================================= The accompanying notes are an integral part of these statements.
II-169
BALANCE SHEETS (continued) At December 31, 1998 and 1997 Mississippi Power Company 1998 Annual Report ============================================================================================================================= CAPITALIZATION AND LIABILITIES 1998 1997 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- (in thousands) Capitalization (See accompanying statements): Common stock equity $ 391,231 $ 387,824 Preferred stock 31,809 31,896 Company obligated mandatorily redeemable preferred securities of subsidiary trust holding Company Junior Subordinated Notes (Note 9) 35,000 35,000 Long-term debt 292,744 291,665 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 750,784 746,385 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Long-term debt due within one year (Note 10) 50,020 35,020 Notes payable 13,000 - Accounts payable-- Affiliated companies 8,788 8,548 Regulatory clauses over recovery 4,412 15,476 Other 47,113 34,065 Customer deposits 3,272 3,225 Taxes accrued-- Federal and state income 1,124 1,101 Other 31,379 33,859 Interest accrued 2,955 4,098 Miscellaneous 11,753 12,797 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 173,816 148,189 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 8) 143,852 134,645 Accumulated deferred investment tax credits 25,913 27,121 Deferred credits related to income taxes (Note 8) 37,277 38,203 Postretirement benefits other than pension 25,869 25,145 Accumulated provision for property damage (Note 1) 910 13,991 Workforce Reduction Plan 13,051 15,700 Miscellaneous 18,133 17,450 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 265,005 272,255 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 2, 3, 4, and 5) Total Capitalization and Liabilities $ 1,189,605 $ 1,166,829 ============================================================================================================================= The accompanying notes are an integral part of these statements.
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STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Mississippi Power Company 1998 Annual Report =========================================================================================================================== 1998 1997 1998 1997 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Common Stock Equity: Common stock, without par value -- Authorized -- 1,130,000 shares Outstanding -- 1,121,000 shares in 1998 and 1997 $ 37,691 $ 37,691 Paid-in capital 179,474 179,389 Premium on preferred stock 326 327 Retained earnings (Note 11) 173,740 170,417 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total common stock equity 391,231 387,824 52.1 % 52.0 % - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Cumulative Preferred Stock: $100 par value -- Authorized -- 1,244,139 shares Outstanding -- 318,090 shares in 1998 and 318,955 shares in 1997 4.40% to 4.72% 3,421 3,492 6.32% to 7.00% 28,388 28,404 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (annual dividend requirement -- $2,013,000) 31,809 31,896 4.2 4.3 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Company Obligated Mandatorily Redeemable Preferred Securities (Note 9): $25 liquidation value -- 7.75% 35,000 35,000 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (annual dividend requirement -- $2,713,000) 35,000 35,000 4.7 4.7 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Long-Term Debt: First mortgage bonds -- Maturity Interest Rates 1998 5.38% - 35,000 2000 6.63% - 40,000 2004 6.60% 35,000 35,000 2023 7.45% 35,000 35,000 2025 6.88% 30,000 30,000 Pollution control obligations -- Collateralized: 5.65% to 5.80% due 2007-2023 26,805 39,825 4.00% to 5.25% due 2020-2025 33,900 33,900 Non-collateralized: Variable rate (5.25% at 1/1/99) due 2028 13,520 - Other long-term notes payable-- 6.05% due 2003 35,000 - 6.75% due 2038 55,000 - Adjustable rates (5.71% to 5.79%) due 1999-2000 80,000 80,000 Unamortized debt premium (discount), net (1,461) (2,040) - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement--$21,131,000) 342,764 326,685 Less amount due within one year (Note 10) 50,020 35,020 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 292,744 291,665 39.0 39.0 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total Capitalization $ 750,784 $ 746,385 100.0 % 100.0 % =========================================================================================================================== The accompanying notes are an integral part of these statements.
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STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 Mississippi Power Company 1998 Annual Report ====================================================================================================================== 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Period $ 170,417 $ 166,282 $ 157,459 Net income after dividends on preferred stock 55,105 54,010 52,723 Cash dividends on common stock (51,700) (49,400) (43,900) Preferred stock transactions and other, net (82) (475) - - - - - - - - ---------------------------------------------------------------------------------------------------------------------- Balance at End of Period (Note 11) $ 173,740 $ 170,417 $ 166,282 ====================================================================================================================== STATEMENTS OF PAID-IN CAPITAL For the Years Ended December 31, 1998, 1997, and 1996 ====================================================================================================================== 1998 1997 1996 - - - - - - - ---------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Period $ 179,389 $ 179,389 $ 179,362 Contributions to capital by parent company 85 - 27 - - - - - - - ---------------------------------------------------------------------------------------------------------------------- Balance at End of Period $ 179,474 $ 179,389 $ 179,389 ====================================================================================================================== The accompanying notes are an integral part of these statements.
II-172 NOTES TO FINANCIAL STATEMENTS Mississippi Power Company 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Mississippi Power Company is a wholly owned subsidiary of Southern Company, which is the parent company of five operating companies, Southern Company Services (SCS), Southern Communications Services (Southern LINC), Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), and Southern Energy Solutions, and other direct and indirect subsidiaries. The operating companies (Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company) provide electric service in four southeastern states. Contracts among the companies--dealing with jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power--are regulated by the Federal Energy Regulatory Commission (FERC) and/or the Securities and Exchange Commission. SCS provides, at cost, specialized services to Southern Company and to the subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Worldwide, Southern Energy develops and manages electricity and other energy related projects, including domestic energy trading and marketing. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Energy Solutions develops new business opportunities related to energy products and services. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both Southern Company and its subsidiaries are subject to the regulatory provisions of the PUHCA. Mississippi Power is also subject to regulation by the FERC and the Mississippi Public Service Commission (MPSC). The Company follows generally accepted accounting principles and complies with the accounting policies and practices prescribed by the respective commissions. The preparation of financial statements in conformity with generally accepted accounting principles requires the use of estimates and the actual results may differ from those estimates. Certain prior years' data presented in the financial statements have been reclassified to conform with current year presentation. Regulatory Assets and Liabilities Mississippi Power is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the Company associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Balance Sheets as of December 31 relate to: 1998 1997 ------------------------- (in thousands) Deferred income taxes $ 22,697 $ 21,906 Vacation pay 4,717 5,030 Workforce reduction plan of 1997 12,748 18,236 Premium on reacquired debt 9,304 9,508 Deferred environmental costs 1,500 1,583 Property damage reserve (910) (13,991) Deferred income tax credits (37,277) (38,203) Other, net (2,538) (2,982) - - - - - - - ---------------------------------------------------------------- Total $ 10,241 $ 1,087 ================================================================ In the event that a portion of the Company's operations is no longer subject to the provisions of FASB Statement No. 71, the Company would be required to write off the net regulatory assets and liabilities related to that portion of operations that are not specifically recoverable through regulated rates. In addition, the Company would be required to determine any impairment to other assets, including plant, and write down the assets, if impaired, to their fair value. Revenues The Company currently operates as a vertically integrated utility providing electricity to retail customers within its traditional service area located within the state of Mississippi, and to wholesale customers in the southeast. II-173 NOTES (continued) Mississippi Power Company 1998 Annual Report Revenues, less affiliated transactions, by type of service were as follows: 1998 1997 1996 -------------------------------------- (in thousands) Retail $442,567 $417,242 $414,126 Wholesale 121,225 105,141 99,596 Other 13,054 11,062 8,477 - - - - - - - ----------------------------------------------------------------- Total $576,846 $533,445 $522,199 - - - - - - - ----------------------------------------------------------------- Mississippi Power accrues revenues for service rendered but unbilled at the end of each fiscal period. The Company's retail and wholesale rates include provisions to adjust billings for fluctuations in fuel costs, the energy component of purchased power costs and certain other costs. Retail rates also include provisions to adjust billings for fluctuations in costs for ad valorem taxes and certain qualifying environmental costs. Revenues are adjusted for differences between actual allowable amounts and the amounts included in rates. The Company has a diversified base of customers. No single customer or industry comprises 10 percent or more of revenues. For all periods presented, uncollectible accounts continued to average less than 1 percent of revenues. Depreciation Depreciation of the original cost of depreciable utility plant in service is provided by using composite straight-line rates which approximated 3.3 percent in 1998, 1997, and 1996. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost -- together with the cost of removal, less salvage -- is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Depreciation expense includes an amount for the expected cost of removal of facilities. Income Taxes Mississippi Power uses the liability method of accounting for deferred income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. Utility Plant Utility plant is stated at original cost. This cost includes: materials; labor; minor items of property; appropriate administrative and general costs; payroll-related costs such as taxes, pensions, and other benefits; and the estimated cost of funds used during construction. If applicable, the cost of maintenance, repairs, and replacement of minor items of property is charged to maintenance expense except for the maintenance of coal cars and a portion of the railway track maintenance, which are charged to fuel stock. The cost of replacements of property (exclusive of minor items of property) is charged to utility plant. Cash and Cash Equivalents For purposes of the Statements of Cash Flows, temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. Financial Instruments The Company's financial instruments for which the carrying amount did not equal fair value at December 31 were as follows: Carrying Fair Amount Value --------------------------- (in millions) Long-term debt At December 31, 1998 $343 $348 At December 31, 1997 $327 $330 Capital trust preferred securities: At December 31, 1998 $35 $36 At December 31, 1997 35 36 - - - - - - - -------------------------------------------------------------- The fair value for long-term debt and preferred securities was based on either closing market price or closing price of comparable instruments. Materials and Supplies Generally, materials and supplies include the cost of transmission, distribution and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when used or installed. II-174 NOTES (continued) Mississippi Power Company 1998 Annual Report Provision for Property Damage Mississippi Power is self-insured for the cost of storm, fire and other uninsured casualty damage to its property, including transmission and distribution facilities. As permitted by regulatory authorities, the Company provided for such costs by charges to income of $1.5 million in each of the years 1998, 1997 and 1996. The cost of repairing damage resulting from such events that individually exceed $50 thousand is charged to the accumulated provision to the extent it is available. Effective January 1995, regulatory treatment by the MPSC allowed a maximum accumulated provision of $18 million. Hurricane Georges struck Mississippi's service area on September 28, 1998, causing power outages and widespread flooding in certain counties. Current estimates place the cost of repairing Mississippi's damaged facilities at approximately $16.4 million, of which $1.5 million is expected to be recovered from insurance. Substantially all of the cost ($13.9 million) was charged to the property damage reserve; income will not be significantly affected by these restoration costs. As of December 31, 1998, the accumulated provision amounted to $0.9 million. 2. RETIREMENT BENEFITS Mississippi Power has a defined benefit, trusteed, pension plan that covers substantially all regular employees. The Company provides certain medical care and life insurance benefits for retired employees. Substantially all these employees may become eligible for such benefits when they retire. The Company funds trusts to the extent deductible under federal income tax regulations or to the extent required by the MPSC. In 1998, the Company adopted FASB Statement No. 132 Employers' Disclosure about Pensions and Other Postretirement Benefits The measurement date is September 30 for each year. Pension Plan Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations ---------------------------- 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Balance at beginning of year $132,131 $127,834 Service cost 3,848 4,015 Interest cost 9,613 9,407 Benefits paid (7,845) (5,384) Actuarial (gain) loss and employee transfers 5,060 (3,571) Effect of workforce reduction - (170) - - - - - - - ----------------------------------------------------------------- Balance at end of year $142,807 $132,131 ================================================================= Plan Assets ---------------------------- 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Balance at beginning of year $207,457 $179,658 Actual return on plan assets 1,252 33,718 Benefits paid (7,845) (5,385) Employee transfers (2,764) (534) - - - - - - - ----------------------------------------------------------------- Balance at end of year $198,100 $207,457 ================================================================= The accrued pension costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - -------------------------------------------------------------------- (in thousands) Funded status $ 55,293 $ 75,326 Unrecognized transition obligation (4,359) (4,903) Unrecognized prior service cost 5,405 5,818 Unrecognized net gain (56,590) (78,936) - - - - - - - -------------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $ (251) $ 2,695 ==================================================================== II-175 NOTES (continued) Mississippi Power Company 1998 Annual Report Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ------------------------------------------------------------------ (in thousands) Service cost $ 3,848 $ 4,015 $ 3,842 Interest cost 9,613 9,407 9,310 Expected return on Plan assets (13,817) (12,805) (12,562) Recognized net gain (1,956) (1,729) (1,202) Net amortization (131) (119) (232) - - - - - - - ------------------------------------------------------------------- Net pension income $ (2,443) $ (1,231) $ (844) =================================================================== The weighted average rates assumed in the actuarial calculations for both the pension plans and postretirement benefits were: 1998 1997 --------------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25 5.00 Long-term return on plan assets 8.50 8.50 --------------------------------------------------------------- Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations ---------------------------- 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Balance at beginning of year $43,417 $41,108 Service cost 806 867 Interest cost 3,162 2,922 Benefits paid (2,302) (1,495) Actuarial loss and employee transfers 2,177 2,824 Effect of work force reduction - (2,809) - - - - - - - ----------------------------------------------------------------- Balance at end of year $47,260 $43,417 ================================================================= Plan Assets ---------------------------- 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Balance at beginning of year $12,189 $10,210 Actual return on plan assets 176 1,661 Employer contributions 2,716 1,813 Benefits paid (2,302) (1,495) - - - - - - - ----------------------------------------------------------------- Balance at end of year $12,779 $12,189 ================================================================= The accrued postretirement costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - -------------------------------------------------------------------- (in thousands) Funded status $(34,481) $(31,228) Unrecognized transition obligation 4,967 5,313 Unrecognized net loss (gain) 1,010 (1,980) Fourth quarter contributions 577 728 - - - - - - - -------------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $(27,927) $(27,167) ====================================================================== Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ------------------------------------------------------------------ (in thousands) Service cost $ 806 $ 867 $ 958 Interest cost 3,162 2,922 2,830 Expected return on plan assets (989) (815) (696) Recognized net (gain) loss - (7) 18 Net amortization 346 362 362 - - - - - - - ------------------------------------------------------------------ Net postretirement cost $3,325 $3,329 $3,472 ================================================================== II-176 NOTES (continued) Mississippi Power Company 1998 Annual Report An additional assumption used in measuring the accumulated postretirement benefit obligation was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005 and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would increase the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows: 1 Percent 1 Percent Increase Decrease - - - - - - - -------------------------------------------------- -------------- (in thousands) Benefit obligation $3,128 $(2,652) Service and interest costs 281 (236) - - - - - - - ----------------------------------------------------------------- Workforce Reduction Programs In 1997, approximately one hundred employees of Mississippi Power accepted the terms of a workforce reduction plan. The total cost to be incurred in connection with this voluntary plan is expected to be $18.2 million, including a $2.5 million pension and postretirement benefits curtailment loss. The MPSC approved the deferral and amortization of these program costs over a period not to exceed 60 months beginning no later than July 1998. The unamortized balance of this program was $12.7 million at December 31, 1998. 3. LITIGATION AND REGULATORY MATTERS Retail Rate Adjustment Plans Mississippi Power's retail base rates are set under a Performance Evaluation Plan (PEP) approved by the MPSC in 1994. PEP was designed with the objective that the plan would reduce the impact of rate changes on the customer and provide incentives for Mississippi Power to keep customer prices low. PEP includes a mechanism for sharing rate adjustments based on the Company's ability to maintain low rates for customers and on the Company's performance as measured by three indicators that emphasize price and service to the customer. PEP provides for semiannual evaluations of Mississippi's performance-based return on investment. Any change in rates is limited to 2 percent of retail revenues per evaluation period. PEP will remain in effect until the MPSC modifies or terminates the plan. In September 1996, the MPSC under PEP approved a retail revenue increase of $4.5 million (1.06 percent of annual retail revenue) which became effective in October 1996. There were no PEP retail revenue changes for 1998 or 1997. FERC Reviews Equity Returns On September 21, 1998, the FERC entered separate orders affirming the outcome of its administrative law judge's opinions in two proceedings in which the return on common equity component contained in substantially all of the operating companies' wholesale formula rate contracts was being challenged as unnecessarily high. These orders resulted in no change in the wholesale contracts. The FERC also dismissed a complaint filed by the three customers under long-term power sales agreements seeking to lower the equity return component in such agreements. These customers have filed applications for rehearing regarding each FERC order. In response to a requirement of the September 1998 FERC orders, Southern Company filed a new equity return component on the long-term power sales contracts, to be effective January 5, 1999. The proposed equity return was lowered from 13.75 percent to 12.5 percent. The FERC placed the new rates into effect subject to refund. Also this filing was consolidated with the new proceeding discussed below. On December 28, 1998, the FERC staff filed a motion asking the FERC to initiate a new proceeding regarding the equity return and other issues involving the operating companies' formula rate contracts. The motion was submitted pursuant to review procedures applicable to these contracts, and would be applicable to billings under such contracts on and after January 1, 1999. Environmental Compliance Overview Plan The MPSC approved Mississippi Power's Environmental Compliance Overview Plan (ECO) in 1992. The plan establishes procedures to facilitate the MPSC's overview of the Company's environmental strategy and provides for recovery of costs (including costs of capital) associated with environmental projects approved by the MPSC. Under the ECO Plan any increase in the annual revenue requirement is limited to 2 percent of retail revenues. However, the plan also provides for carryover of any amount over the 2 percent limit into the next year's revenue requirement. In 1997, the Company's filing with the MPSC under the ECO Plan resulted in an annual retail rate increase of $0.9 million. The 1998 ECO filing resulted in a small decrease in customer prices. 11-177 NOTES (continued) Mississippi Power Company 1998 Annual Report Mississippi Power conducts studies, when possible, to determine the extent of any required environmental remediation. Should such remediation be determined to be probable, reasonable estimates of costs to clean up such sites are developed and recognized in the financial statements. A currently owned site where manufactured gas plant operations were located prior to the Company's ownership is being investigated for potential remediation. In recognition of probable remediation, the Company in 1995 recorded a liability and a deferred debit (regulatory asset) of $1.8 million, including feasibility study costs. The Company recognizes such costs as they are incurred and recovers them under the ECO Plan as provided in the Company's 1995 ECO order. As of December 31, 1998, the balance in the liability and regulatory asset accounts was $1.5 million. The remedial investigation has been approved by the Mississippi Department of Environmental Quality. The site is scheduled to be remediated in 1999. The Company currently estimates the remediation costs to be approximately $1.5 million before recovery from potentially responsible parties. Approval for New Capacity In January of 1998, the Company was granted a Certificate of Public Convenience and Necessity by the MPSC to build approximately 1,000 megawatts of combined cycle generation at the Company's Plant Daniel site, to be placed in service by June 2001. In December 1998, the Company requested approval to transfer the ownership rights under the certificate to Escatawpa Funding, Limited Partnership, which will lease the facility to the Company (see Note 4, Construction Program). The Company also requested approval from the MPSC to exclude the costs of the new facility from retail rate base and to assign the Company's existing generating capacity to its retail business, beginning in 2001. In January 1999, the Company and Mississippi Public Utility Staff entered a stipulation covering the details of cost allocation and ratemaking to effect this change. In February 1999, the Commission held hearings on this matter and subsequently granted the Company's request, as modified by the stipulation. 4. CONSTRUCTION PROGRAM Mississippi Power is engaged in continuous construction programs, the costs of which are currently estimated to total $67 million in 1999, $52 million in 2000, and $45 million in 2001. The construction program is subject to periodic review and revision, and actual construction costs may vary from the above estimates because of numerous factors. These factors include changes in business conditions; revised load growth estimates; changes in environmental regulations; increasing costs of labor, equipment and materials; and cost of capital. Significant construction will continue related to transmission and distribution facilities, the upgrading of generating plants, and the addition of combined cycle generation. In February 1999, the Company signed an interim construction agency agreement with Escatawpa Funding ("Escatawpa"), a limited partnership, that calls for the Company to design and construct, as agent for Escatawpa, a 1064 megawatt natural gas combined cycle facility. On or before April 30, 1999, Escatawpa and the Company anticipate entering into an Agreement for Lease (which will supersede the interim construction agency agreement), and a Lease Agreement. It is anticipated that the total project will cost approximately $406 million. Upon project completion, the Company will lease the facility from Escatawpa. If the anticipated lease arrangement is not reached, the Company will either exercise its purchase option or Escatawpa will sell the facility to a third party. 5. FINANCING AND COMMITMENTS Financing Mississippi Power's construction program is expected to be financed from internal and other sources, such as the issuance of additional long-term debt and preferred securities and the receipt of capital contributions from Southern Company. The amounts of first mortgage bonds and preferred stock that can be issued in the future will be contingent upon market conditions, adequate earnings levels, regulatory authorizations and other factors. At December 31, 1998, Mississippi Power had total committed credit agreements with banks for $96.3 million. At year-end 1998, the unused portion of these committed credit agreements was $76.3 million. These credit agreements expire at various dates in 1999 and in 2000. Some of these agreements allow short-term borrowings to be converted into term loans, payable in 12 equal quarterly installments, with the first installment due at the end of the first 11-178 NOTES (continued) Mississippi Power Company 1998 Annual Report calendar quarter after the applicable termination date or at an earlier date at the Company's option. In connection with these credit arrangements, the Company agrees to pay commitment fees based on the unused portions of the commitments or to maintain compensating balances with the banks. At December 31, 1998, the Company had $13 million of short-term borrowings outstanding. Assets Subject to Lien Mississippi Power's mortgage indenture dated as of September 1, 1941, as amended and supplemented, which secures the first mortgage bonds issued by the Company, constitutes a direct first lien on substantially all of the Company's fixed property and franchises. Lease Agreements In 1984, Mississippi Power and Gulf States Utilities (now Entergy) entered into a forty-year transmission facilities agreement whereby Entergy began paying a use fee to the Company covering all expenses relative to ownership and operation and maintenance of a 500 kV line, including amortization of its original $57 million cost. For the three years ended 1998 use fees collected under this agreement, net of related expenses, amounted to $3.4 million each year, and are included within Other Income in the Statements of Income. In 1989, Mississippi Power entered into a twenty-two year lease agreement for the use of 495 aluminum railcars. In 1994, a second lease agreement for the use of 250 additional aluminum railcars was also entered into for twenty-two years. The Company has the option to purchase the 745 railcars at the greater of lease termination value or fair market value, or to renew the leases at the end of the lease term. In 1997, a third lease agreement for the use of 360 railcars was also entered into for three years, with a monthly renewal option for up to an additional nine months. All of these leases, totaling 1,105 railcars, were for the transport of coal at Plant Daniel. Gulf Power, as joint owner of Plant Daniel, is responsible for one half of the lease cost. The Company's share (50%) of the leases, charged to fuel inventory, was $2.8 million in 1998, $2.0 million in 1997, and $1.7 million in 1996. The Company's annual lease payments for 1999 through 2003 will average approximately $2.2 million and after 2003, lease payments total in aggregate approximately $16 million. Fuel and Purchased Power Commitments To supply a portion of the fuel requirements of its generating plants, Mississippi Power has entered into various long-term commitments for the procurement of fuel. In most cases, these contracts contain provisions for price escalations, minimum production levels, and other financial commitments. Total estimated obligations at December 31, 1998, were as follows: Year Fuel -------- -------------- (in millions) 1999 $111 2000 80 - - - - - - - ---------------------------------------------------------- Total commitments $191 - - - - - - - ---------------------------------------------------------- Additional commitments for fuel will be required in the future to supply the Company's fuel needs. In 1996, Mississippi Power entered into agreements to purchase options for summer peaking power for the years 1997 through 2000. The Company has purchased options from power marketers for up to 250 megawatts of peaking power in 1997; 300 megawatts in 1998; 250 megawatts in 1999; and 400 megawatts in 2000. In 1997and 1998, Mississippi Power exercised its option to purchase 250 megawatts and 300 megawatts of peaking capacity respectively. In June 1997, the MPSC approved Mississippi Power's request that it be allowed to earn a return on the capacity portion of this agreement. Mississippi Power expects to exercise its option to purchase 250 megawatts of summer peaking capacity in 1999. 11-179 NOTES (continued) Mississippi Power Company 1998 Annual Report 6. JOINT OWNERSHIP AGREEMENTS Mississippi Power and Alabama Power own as tenants in common Units 1 and 2 at Greene County Electric Generating Plant located in Alabama; and Mississippi Power and Gulf Power own as tenants in common Daniel Electric Generating Plant located in Mississippi. At December 31, 1998, Mississippi Power's percentage ownership and investment in these jointly owned facilities were as follows: Company's Generating Total Percent Gross Accumulated Plant Capacity Ownership Investment Depreciation - - - - - - - ------------- --------- --------- ------------ ------------ (Megawatts) (in thousands) Greene County Units 1 and 2 500 40% $ 60,868 $27,767 Daniel 1,000 50% 219,082 99,006 -------------------------------------------------------------------------- Mississippi Power's share of plant operating expenses is included in the corresponding operating expenses in the Statements of Income. 7. LONG-TERM POWER SALES AGREEMENTS Mississippi Power and the other operating affiliates of Southern Company have long-term contractual agreements for the sale of capacity and energy to certain non-affiliated utilities located outside the system's service area. Because the energy is generally sold at cost under these agreements, profitability is primarily affected by revenues from capacity sales. The capacity revenues have been $10,389 in 1998; $8,000 in 1997; and none in 1996. 8. INCOME TAXES At December 31, 1998, the tax-related regulatory assets and liabilities were $23 million and $37 million, respectively. These assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. These liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of the federal and state income tax provisions are shown below: 1998 1997 1996 ---------------------------------- (in thousands) Total provision for income taxes Federal -- Currently payable $20,500 $27,651 $29,888 Deferred --current year 7,007 8,171 13,816 --reversal of prior years 2,435 (9,236) (14,913) ----------------------------------------------------------------- 29,942 26,586 28,791 ----------------------------------------------------------------- State -- Currently payable 2,544 5,537 3,588 Deferred --current year 1,568 1,756 4,727 --reversal of prior years 610 (2,499) (3,556) ----------------------------------------------------------------- 4,722 4,794 4,759 ----------------------------------------------------------------- Total 34,664 31,380 33,550 Less income taxes charged to other income 165 (588) 932 ----------------------------------------------------------------- Federal and state income taxes charged to operations $34,499 $31,968 $32,618 ================================================================= 11-180 NOTES (continued) Mississippi Power Company 1998 Annual Report The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities are as follows: 1998 1997 ---------------------------- (in thousands) Deferred tax liabilities: Accelerated depreciation $153,768 $149,941 Basis differences 9,642 10,037 Other 26,038 25,097 --------------------------------------------------------------- Total 189,448 185,075 --------------------------------------------------------------- Deferred tax assets: Other property basis differences 22,391 23,139 Pension and other benefits 9,441 9,803 Property insurance 1,526 5,351 Unbilled fuel 2,080 802 Other 14,406 19,714 --------------------------------------------------------------- Total 49,844 58,809 --------------------------------------------------------------- Net deferred tax liabilities 139,604 126,266 Portion included in current assets, net 4,248 8,379 --------------------------------------------------------------- Accumulated deferred income taxes in the Balance Sheets $143,852 $134,645 =============================================================== Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation in the Statements of Income. Credits amortized in this manner amounted to $1.2 million in 1998, $1.2 million in 1997, and $1.4 million in 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. A reconciliation of the federal statutory income tax rate to the effective income tax rate is as follows: 1998 1997 1996 ---------------------------------- Federal statutory rate 35.00% 35.00% 35.00% State income tax, net of federal deduction 3.34 3.51 3.39 Non-deductible book depreciation .47 .47 .46 Other (1.04) (3.60) (2.05) ------------------------------------------------------------------ Effective income tax rate 37.77% 35.38% 36.80% ================================================================== Southern Company files a consolidated federal income tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. 9. COMPANY OBLIGATED MANDATORILY REDEEMABLE PREFERRED SECURITIES In February 1997, Mississippi Power Capital Trust I (Trust I), of which the Company owns all the common securities, issued $35 million of 7.75 percent mandatorily redeemable preferred securities. Substantially all of the assets of Trust I are $36 million aggregate principal amount of the Company's 7.75 percent junior subordinated notes due February 15, 2037. The Company considers that the mechanisms and obligations relating to the preferred securities, taken together, constitute a full and unconditional guarantee by Mississippi Power Capital Trust for the obligation with respect to the preferred securities. The Trust is a subsidiary of the Company, and accordingly is consolidated in the Company's financial statements. 10. LONG-TERM DEBT DUE WITHIN ONE YEAR A summary of the improvement fund requirements and scheduled maturities and redemptions of long-term debt due within one year is as follows: 1998 1997 ------------------- (in thousands) Bond improvement fund requirement $ 1,000 $1,750 Less: Portion to be satisfied by certifying property additions 1,000 1,750 --------------------------------------------------------------- Cash sinking fund requirement - - Redemptions of first mortgage bonds - 35,000 Current portion of other long-term debt 50,000 Pollution control bond cash sinking fund requirements 20 20 --------------------------------------------------------------- Total $50,020 $35,020 =============================================================== II-181 NOTES (continued() Mississippi Power Company 1998 Annual Report The first mortgage bond improvement fund requirement is one percent of each outstanding series authenticated under the indenture of Mississippi Power prior to January 1 of each year, other than first mortgage bonds issued as collateral security for certain pollution control obligations. The requirement must be satisfied by June 1 of each year by depositing cash or reacquiring bonds, or by pledging additional property equal to 166-2/3 percent of such requirement. 11. COMMON STOCK DIVIDEND RESTRICTIONS Mississippi Power's first mortgage bond indenture and the corporate charter contain various common stock dividend restrictions. At December 31, 1998, approximately $118 million of retained earnings was restricted against the payment of cash dividends on common stock under the most restrictive terms of the mortgage indenture or corporate charter. 12. QUARTERLY FINANCIAL DATA (UNAUDITED) Summarized quarterly financial data for 1998 and 1997 are as follows: Net Income After Dividends Operating Operating On Preferred Quarter Ended Revenues Income Stock - - - - - - - -------------------------------------------------------------------- (in thousands) March 1998 $122,156 $15,367 $8,388 June 1998 156,612 20,123 13,713 September 1998 191,699 34,167 28,309 December 1998 124,664 10,715 4,696 March 1997 $116,903 $17,132 $10,645 June 1997 128,915 19,340 12,618 September 1997 171,874 30,441 25,163 December 1997 125,896 11,043 5,584 - - - - - - - -------------------------------------------------------------------- Mississippi Power's business is influenced by seasonal weather conditions and the timing of rate changes. II-182
SELECTED FINANCIAL AND OPERATING DATA Mississippi Power Company 1998 Annual Report =========================================================================================================================== 1998 1997 1996 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $595,131 $543,588 $544,029 Net Income after Dividends on Preferred Stock (in thousands) $55,105 $54,010 $52,723 Cash Dividends on Common Stock (in thousands) $51,700 $49,400 $43,900 Return on Average Common Equity (percent) 14.2 14.0 13.9 Total Assets (in thousands) $1,189,605 $1,166,829 $1,142,327 Gross Property Additions (in thousands) $68,231 $55,375 $61,314 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $391,231 $387,824 $383,734 Preferred stock 31,809 31,896 74,414 Preferred stock subject to mandatory redemption - - - Company obligated mandatorily redeemable preferred securities 35,000 35,000 - Long-term debt 292,744 291,665 326,379 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $750,784 $746,385 $784,527 =========================================================================================================================== Capitalization Ratios (percent): Common stock equity 52.1 52.0 48.9 Preferred stock 4.2 4.3 9.5 Company obligated mandatorily redeemable preferred securities 4.7 4.7 - Long-term debt 39.0 39.0 41.6 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 =========================================================================================================================== First Mortgage Bonds (in thousands): Issued - - - Retired 75,000 - 45,447 Preferred Stock (in thousands): Issued - - - Retired 87 42,518 - Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - 35,000 - - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's Aa3 Aa3 Aa3 Standard and Poor's AA- AA- A+ Duff & Phelps AA- AA- AA- Preferred Stock - Moody's a1 a1 a1 Standard and Poor's A A A Duff & Phelps A+ A+ A+ - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 156,530 156,650 154,630 Commercial 31,319 31,667 30,366 Industrial 587 642 639 Other 200 200 200 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 188,636 189,159 185,835 =========================================================================================================================== Employees (year-end) 1,230 1,245 1,363 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------
II-183
SELECTED FINANCIAL AND OPERATING DATA Mississippi Power Company 1998 Annual Report ============================================================================================================================== 1995 1994 1993 1992 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Operating Revenues (in thousands) $516,553 $499,162 $474,883 $434,447 Net Income after Dividends on Preferred Stock (in thousands) $52,531 $49,157 $42,436 $36,790 Cash Dividends on Common Stock (in thousands) $39,400 $34,100 $29,000 $28,000 Return on Average Common Equity (percent) 14.26 14.38 14.09 13.27 Total Assets (in thousands) $1,148,953 $1,123,711 $1,050,334 $791,283 Gross Property Additions (in thousands) $67,570 $104,014 $139,976 $68,189 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Capitalization (in thousands): Common stock equity $374,884 $361,753 $321,768 $280,640 Preferred stock 74,414 74,414 74,414 74,414 Preferred stock subject to mandatory redemption - - - - Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 288,820 306,522 250,391 238,650 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total (excluding amounts due within one year) $738,118 $742,689 $646,573 $593,704 ============================================================================================================================== Capitalization Ratios (percent): Common stock equity 50.8 48.7 49.8 47.3 Preferred stock 10.1 10.0 11.5 12.5 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 39.1 41.3 38.7 40.2 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ============================================================================================================================== First Mortgage Bonds (in thousands): Issued 30,000 35,000 70,000 40,000 Retired 1,625 32,628 51,300 104,703 Preferred Stock (in thousands): Issued - - 23,404 35,000 Retired - - 23,404 - Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Security Ratings: First Mortgage Bonds - Moody's Aa3 Aa3 A1 A1 Standard and Poor's A+ A+ A+ A+ Duff & Phelps AA- A+ A+ A+ Preferred Stock - Moody's a1 a1 a1 a1 Standard and Poor's A A A A Duff & Phelps A+ A A A - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Customers (year-end): Residential 154,014 152,891 151,692 150,248 Commercial 29,903 29,276 28,648 28,056 Industrial 642 650 570 573 Other 194 189 190 189 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------ Total 184,753 183,006 181,100 179,066 ============================================================================================================================== Employees (year-end) 1,421 1,535 1,586 1,619 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------
11-184A
SELECTED FINANCIAL AND OPERATING DATA Mississippi Power Company 1998 Annual Report ============================================================================================================================- 1991 1990 1989 1988 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $432,386 $446,871 $442,650 $437,939 Net Income after Dividends on Preferred Stock (in thousands) $22,627 $34,176 $38,576 $36,081 Cash Dividends on Common Stock (in thousands) $28,500 $27,500 $27,000 $27,600 Return on Average Common Equity (percent) 8.17 12.36 14.43 14.03 Total Assets (in thousands) $790,641 $800,026 $786,570 $779,319 Gross Property Additions (in thousands) $53,675 $49,009 $43,916 $54,550 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $273,855 $279,833 $273,157 $261,473 Preferred stock 39,414 39,414 39,414 39,414 Preferred stock subject to mandatory redemption - 3,750 4,500 5,250 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 304,150 270,724 277,693 287,525 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $617,419 $593,721 $594,764 $593,662 ============================================================================================================================= Capitalization Ratios (percent): Common stock equity 44.4 47.1 45.9 44.1 Preferred stock 6.4 7.3 7.4 7.5 Company obligated mandatorily redeemable preferred securities - - - - Long-term debt 49.2 45.6 46.7 48.4 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ============================================================================================================================= First Mortgage Bonds (in thousands): Issued 50,000 - - - Retired - 4,000 3,823 - Preferred Stock (in thousands): Issued - - - - Retired 4,118 750 750 1,500 Company Obligated Mandatorily Redeemable Preferred Securities (in thousands): Issued - - - - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 A1 Standard and Poor's A+ A+ A+ A+ Duff & Phelps A+ A+ A+ 5 Preferred Stock - Moody's a1 a1 a1 a1 Standard and Poor's A A A A Duff & Phelps A A A 6 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 148,978 147,738 147,308 146,750 Commercial 27,441 27,134 26,867 26,751 Industrial 562 574 525 478 Other 400 411 404 399 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 177,381 175,857 175,104 174,378 ============================================================================================================================= Employees (year-end) 1,630 1,842 1,750 1,831 - - - - - - - -----------------------------------------------------------------------------------------------------------------------------
11-184B
SELECTED FINANCIAL AND OPERATING DATA (continued) Mississippi Power Company 1998 Annual Report - - - - - - - ------------------------------------------------------------------------------------------------------------------------- 1998 1997 1996 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $157,642 $138,608 $137,055 Commercial 145,677 134,208 131,734 Industrial 135,039 140,233 141,324 Other 4,209 4,193 4,013 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total retail 442,567 417,242 414,126 Sales for resale - non-affiliates 121,225 105,141 99,596 Sales for resale - affiliates 18,285 10,143 21,830 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 582,077 532,526 535,552 Other revenues 13,054 11,062 8,477 - - - - - - - --------------------------------------------------------------------------------------------------------- -------------- Total $595,131 $543,588 $544,029 ========================================================================================================================= Kilowatt-Hour Sales (in thousands): Residential 2,248,915 2,039,042 2,079,611 Commercial 2,623,276 2,407,520 2,315,860 Industrial 3,729,166 3,981,875 3,960,243 Other 39,772 40,508 39,297 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total retail 8,641,129 8,468,945 8,395,011 Sales for resale - non-affiliates 3,157,837 2,895,182 2,726,993 Sales for resale - affiliates 552,142 478,884 693,510 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total 12,351,108 11,843,011 11,815,514 ========================================================================================================================= Average Revenue Per Kilowatt-Hour (cents): Residential 7.01 6.80 6.59 Commercial 5.55 5.57 5.69 Industrial 3.62 3.52 3.57 Total retail 5.12 4.93 4.93 Total sales 4.71 4.50 4.53 Residential Average Annual Kilowatt-Hour Use Per Customer 14,375 13,132 13,469 Residential Average Annual Revenue Per Customer $1,007.68 $892.68 $887.66 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,086 2,086 2,086 Maximum Peak-Hour Demand (megawatts): Winter 1,740 1,922 2,030 Summer 2,339 2,209 2,117 Annual Load Factor (percent) 58.0 59.1 60.7 Plant Availability - Fossil-Steam (percent) 90.0 92.4 91.8 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 66.0 70.0 70.4 Oil and gas 15.0 13.0 12.0 Purchased power - From non-affiliates 8.0 3.0 6.5 From affiliates 11.0 14.0 11.1 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 ========================================================================================================================= Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,261 10,078 10,038 Cost of fuel per million BTU (cents) 157.93 153.32 156.08 Average cost of fuel per net kilowatt-hour generated (cents) 1.62 1.54 1.57 - - - - - - - -------------------------------------------------------------------------------------------------------------------------
11-185
SELECTED FINANCIAL AND OPERATING DATA (continued) Mississippi Power Company 1998 Annual Report =========================================================================================================================== 1995 1994 1993 1992 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $134,286 $124,257 $118,793 $109,781 Commercial 131,034 124,716 115,152 107,131 Industrial 140,947 142,268 130,198 117,010 Other 3,914 3,882 3,760 3,533 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 410,181 395,123 367,903 337,455 Sales for resale - non-affiliates 91,820 88,122 83,511 80,213 Sales for resale - affiliates 7,691 9,538 15,519 10,055 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 509,692 492,783 466,933 427,723 Other revenues 6,861 6,379 7,950 6,724 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total $516,553 $499,162 $474,883 $434,447 =========================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 2,040,608 1,922,217 1,929,835 1,804,858 Commercial 2,242,163 2,100,625 1,933,685 1,811,042 Industrial 3,813,456 3,847,011 3,623,543 3,536,634 Other 38,559 38,147 38,357 38,261 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 8,134,786 7,908,000 7,525,420 7,190,795 Sales for resale - non-affiliates 2,493,519 2,555,914 2,544,982 2,687,917 Sales for resale - affiliates 243,554 174,342 426,919 280,443 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 0,871,859 10,638,256 10,497,321 10,159,155 =========================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.58 6.46 6.16 6.08 Commercial 5.84 5.94 5.96 5.92 Industrial 3.70 3.70 3.59 3.31 Total retail 5.04 5.00 4.89 4.69 Total sales 4.69 4.63 4.45 4.21 Residential Average Annual Kilowatt-Hour Use Per Customer 13,307 12,611 12,780 12,066 Residential Average Annual Revenue Per Customer $875.69 $815.21 $786.71 $733.90 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,086 2,086 2,011 2,011 Maximum Peak-Hour Demand (megawatts): Winter 1,637 1,636 1,401 1,386 Summer 2,095 1,874 1,872 1,755 Annual Load Factor (percent) 60.0 63.4 60.0 60.8 Plant Availability - Fossil-Steam (percent) 92.1 85.4 88.0 92.0 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 58.0 56.0 63.5 60.4 Oil and gas 15.2 10.2 7.6 5.8 Purchased power - From non-affiliates 2.4 1.2 1.3 1.2 From affiliates 24.4 32.6 27.6 32.6 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 =========================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,249 10,295 10,075 9,888 Cost of fuel per million BTU (cents) 160.48 165.96 170.13 162.27 Average cost of fuel per net kilowatt-hour generated (cents) 1.64 1.71 1.71 1.60 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------
II-186A
SELECTED FINANCIAL AND OPERATING DATA (continued) Mississippi Power Company 1998 Annual Report =========================================================================================================================== 1991 1990 1989 1988 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $103,820 $102,243 $100,068 $96,711 Commercial 103,666 103,352 103,403 98,772 Industrial 116,972 123,754 128,983 123,038 Other 5,869 6,078 5,992 5,874 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 330,327 335,427 338,446 324,395 Sales for resale - non-affiliates 78,826 86,194 82,111 75,525 Sales for resale - affiliates 18,044 20,157 16,938 33,747 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 427,197 441,778 437,495 433,667 Other revenues 5,189 5,093 5,155 4,272 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total $432,386 $446,871 $442,650 $437,939 =========================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 1,832,266 1,804,838 1,741,855 1,686,722 Commercial 1,768,441 1,718,074 1,686,302 1,607,988 Industrial 3,297,247 3,311,460 3,204,208 2,879,457 Other 89,375 85,938 87,611 86,049 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total retail 6,987,329 6,920,310 6,719,976 6,260,216 Sales for resale - non-affiliates 2,706,320 2,883,581 2,798,086 2,280,341 Sales for resale - affiliates 617,696 714,365 527,970 1,100,808 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 0,311,345 10,518,256 10,046,032 9,641,365 =========================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 5.67 5.66 5.74 5.73 Commercial 5.86 6.02 6.13 6.14 Industrial 3.55 3.74 4.03 4.27 Total retail 4.73 4.85 5.04 5.18 Total sales 4.14 4.20 4.35 4.50 Residential Average Annual Kilowatt-Hour Use Per Customer 12,338 12,228 11,842 11,499 Residential Average Annual Revenue Per Customer $699.11 $692.70 $680.32 $659.30 Plant Nameplate Capacity Ratings (year-end) (megawatts) 2,011 1,998 1,998 1,966 Maximum Peak-Hour Demand (megawatts): Winter 1,267 1,201 1,556 1,284 Summer 1,682 1,724 1,682 1,621 Annual Load Factor (percent) 61.5 59.0 58.8 57.6 Plant Availability - Fossil-Steam (percent) 89.8 93.3 94.0 93.0 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 64.1 62.6 63.4 86.3 Oil and gas 8.1 14.0 13.5 4.8 Purchased power - From non-affiliates 0.7 0.8 0.5 0.4 From affiliates 27.1 22.6 22.6 8.5 - - - - - - - --------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 =========================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,142 10,319 10,159 10,220 Cost of fuel per million BTU (cents) 177.52 183.27 178.38 185.13 Average cost of fuel per net kilowatt-hour generated (cents) 1.80 1.89 1.81 1.89 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------
II-186B < SAVANNAH ELECTRIC AND POWER COMPANY FINANCIAL SECTION II-187 MANAGEMENT'S REPORT Savannah Electric and Power Company 1998 Annual Report The management of Savannah Electric and Power Company has prepared--and is responsible for--the financial statements and related information included in this report. These statements were prepared in accordance with generally accepted accounting principles appropriate in the circumstances and necessarily include amounts that are based on the best estimates and judgments of management. Financial information throughout this annual report is consistent with the financial statements. The Company maintains a system of internal accounting controls to provide reasonable assurance that assets are safeguarded and that books and records reflect only authorized transactions of the Company. Limitations exist in any system of internal controls, however, based on a recognition that the cost of the system should not exceed its benefits. The Company believes its system of internal accounting controls maintains an appropriate cost/benefit relationship. The Company's system of internal accounting controls is evaluated on an ongoing basis by the Company's internal audit staff. The Company's independent public accountants also consider certain elements of the internal control system in order to determine their auditing procedures for the purpose of expressing an opinion on the financial statements. The audit committee of the board of directors, composed of four directors who are not employees, provides a broad overview of management's financial reporting and control functions. Periodically, this committee meets with management, the internal auditors and the independent public accountants to ensure that these groups are fulfilling their obligations and to discuss auditing, internal controls and financial reporting matters. The internal auditors and the independent public accountants have access to the members of the audit committee at any time. Management believes that its policies and procedures provide reasonable assurance that the Company's operations are conducted according to a high standard of business ethics. In management's opinion, the financial statements present fairly, in all material respects, the financial position, results of operations, and cash flows of Savannah Electric and Power Company in conformity with generally accepted accounting principles. /s/ G. Edison Holland, Jr. G. Edison Holland, Jr. President and Chief Executive Officer /s/ K. R. Willis K. R. Willis Vice-President Treasurer, Chief Financial Officer and Assistant Secretary February 10, 1999 II-188 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Savannah Electric and Power Company: We have audited the accompanying balance sheets and statements of capitalization of Savannah Electric and Power Company (a Georgia corporation and a wholly owned subsidiary of Southern Company) as of December 31, 1998 and 1997, and the related statements of income, retained earnings, and cash flows for each of the three years in the period ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements (pages 11-198 through II-210) referred to above present fairly, in all material respects, the financial position of Savannah Electric and Power Company as of December 31, 1998 and 1997, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ Arthur Andersen LLP Arthur Andersen LLP Atlanta, Georgia February 10, 1999 II-189 MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION Savannah Electric and Power Company 1998 Annual Report RESULTS OF OPERATIONS Earnings Savannah Electric and Power Company's net income after dividends on preferred stock for 1998 totaled $23.6 million, representing a $0.2 million decrease from the prior year. This 0.9 percent decline in earnings from 1997 is principally the result of a decrease in other income, net. In 1997, earnings were $23.8 million, representing a $0.1 million, or 0.4 percent decrease from the prior year. This was principally the result of an increase in other operation expense, partially offset by an increase in other income, net. Revenues Total revenues for 1998 were $254.5 million, reflecting a 12.5 percent increase compared to 1997. The following table summarizes the factors affecting operating revenues for the 1996-1998 period: Increase (Decrease) From Prior Year -------------------------------------- 1998 1997 1996 -------------------------------------- Retail -- (in thousands) Sales growth $ (479) $ 7,664 $ 3,679 Weather 8,336 (6,186) (2,813) Fuel cost recovery and other 15,012 (10,002) 12,365 -------------------------------------------------------------------- Total retail 22,869 (8,524) 13,231 -------------------------------------------------------------------- Sales for resale-- Non-affiliates 1,081 1,469 147 Affiliates 964 (1,078) (4,070) -------------------------------------------------------------------- Total sales for resale 2,045 391 (3,923) -------------------------------------------------------------------- Other operating revenues 3,264 336 (963) -------------------------------------------------------------------- Total operating revenues $28,178 $ (7,797) $ 8,345 ==================================================================== Percent change 12.5% (3.3)% 3.7% -------------------------------------------------------------------- Retail revenues increased 10.4 percent in 1998, compared to a decline of 3.7 percent in 1997. The increase in 1998 retail revenues is primarily attributable to the unusually hot summer weather, which led to the increases in the residential and commercial classes. The base rate decrease to the small business customer class, ordered by the Georgia Public Service Commission (GPSC) effective July 1998, more than offset the sales growth in all classes. See Note 3 to the financial statements for additional information. The number of customers was also up in both the residential and commercial categories. The decline in 1997 retail revenues was attributable to the mild summer weather and a decrease in fuel cost recovery revenues, somewhat offset by customer growth and increased industrial energy sales. Industrial energy sales were higher primarily due to an increase in the demand of a major customer. Under the Company's fuel cost recovery provisions, fuel revenues--including the fuel component of purchased energy--generally equal fuel expense and have no effect on earnings. Revenues from sales to utilities outside the service area under long-term contracts consist of capacity and energy components. Capacity revenues reflect the recovery of fixed costs and a return on investment under the contracts. Energy is generally sold at variable cost. Capacity revenues remained unchanged in 1998. The capacity and energy components were as follows: 1998 1997 1996 -------------------------------------- (in thousands) Capacity $ 2 $ 2 $ 2 Energy 401 746 1,329 - - - - - - - ----------------------------------------------------------- Total $403 $748 $1,331 =========================================================== Sales to affiliated companies within the Southern electric system vary from year to year depending on demand and the availability and cost of generating resources at each company. These sales do not have a significant impact on earnings. Energy Sales Changes in revenues are influenced heavily by the amount of energy sold each year. Kilowatt-hour (KWH) sales for 1998 and the percent change by year were as follows: KWH Percent Change ------------ ----------------------------- 1998 1998 1997 1996 ------------ ----------------------------- (in millions) Residential 1,540 7.8% (1.9)% 3.9% Commercial 1,236 6.9 1.3 3.8 Industrial 900 2.1 5.1 (5.5) Other 131 5.3 (1.4) 0.1 ------------ Total retail 3,807 6.0 0.8 1.4 Sales for resale-- Non-affiliates 53 (43.5) 2.9 4.4 Affiliates 59 7.2 30.4 (34.4) ------------ Total 3,919 4.8% 1.2% 0.8% ===================================================================== II-190 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report Total retail energy sales were up 6.0% in 1998, the strongest showing since 1995. Both residential and commercial energy sales reflected the impact of the hotter-than-normal weather. Industrial energy sales reflected high demand from one industrial customer. Expenses Total operating expenses for 1998 were $216.6 million, reflecting a $27.6 million increase from 1997. Major components of this increase include a $17.5 million increase in fuel, a $7.1 million increase in purchased power from non-affiliates, and a $5.5 million increase in maintenance expense. These increases were partially offset by a decrease of $6.4 million in purchased power from affiliates. The increase in fuel expense was primarily attributable to higher demand for energy. The increase in purchased power from non-affiliates primarily resulted from increased power marketing activities. Maintenance expenses were higher primarily due to scheduled turbine dismantle inspection costs. The decline in purchased power from affiliates was due primarily to an increase in internal generation reflecting system load growth. In 1997, total operating expenses were $189.1 million, reflecting a $6.1 million decrease from 1996. This decrease includes a $16.5 million reduction in purchased power from affiliates, partially offset by increases of $6.4 million in fuel and $3.7 million in other operation expenses. The decrease in purchased power from affiliates was due to an increase in internal generation and to an adjustment in affiliated billings. The increase in fuel expense was primarily attributable to higher generation and to fuel mix. The increase in other operation expense primarily resulted from a one-time charge for work force reductions of $1.9 million, and expenses associated with the implementation of a new computer software system. Fuel and purchased power costs constitute the single largest expense for the Company. The mix of energy supply is determined primarily by system load, the unit cost of fuel consumed, and the availability of units. The amount and sources of energy supply and the total average cost of energy supply were as follows: 1998 1997 1996 -------------------------- Total energy supply (millions of KWHs) 4,182 3,964 3,917 Sources of energy supply (percent) -- Coal 42 34 28 Oil 1 - - Gas 12 5 3 Purchased Power 45 61 69 Total average cost of energy supply (cents) 2.35 2.02 2.30 - - - - - - - ----------------------------------------------------------------- Effects of Inflation The Company is subject to rate regulation and income tax laws that are based on the recovery of historical costs. Therefore, inflation creates an economic loss because the Company is recovering its costs of investments in dollars that have less purchasing power. While the inflation rate has been relatively low in recent years, it continues to have an adverse effect on the Company because of the large investment in utility plant with long economic life. Conventional accounting for historical cost does not recognize this economic loss nor the partially offsetting gain that arises through financing facilities with fixed-money obligations such as long-term debt and preferred securities. Any recognition of inflation by regulatory authorities is reflected in the rate of return allowed. 11-191 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report Future Earnings Potential The results of operations for the past three years are not necessarily indicative of future earnings potential. The level of future earnings depends on numerous factors ranging from energy sales growth to a less regulated, more competitive environment. Savannah Electric currently operates as a vertically integrated utility providing electricity to customers within the traditional service area of southeastern Georgia. Prices for electricity provided by the Company to retail customers are set by the GPSC. Prices for electricity relating to jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power are set by the Federal Energy Regulatory Commission (FERC). Future earnings in the near term will depend upon growth in energy sales, which is subject to a number of factors. These factors include weather, competition, changes in contracts with neighboring utilities, energy conservation practiced by customers, the elasticity of demand, and the rate of economic growth in the Company's service area. The electric utility industry in the United States is currently undergoing a period of dramatic change as a result of regulatory and competitive factors. Among the primary agents of change has been the Energy Policy Act of 1992 (Energy Act). The Company is positioning the business to meet the challenge of this major change in the traditional practice of selling electricity. The Energy Act allows independent power producers (IPPs) to access the Company's transmission network in order to sell electricity to other utilities. This enhances the incentive for IPPs to build cogeneration plants for industrial and commercial customers and sell energy generation to other utilities. Also, electricity sales for resale rates are being driven down by wholesale transmission access and numerous potential new energy suppliers, including power marketers and brokers. Although the Energy Act does not permit retail customer access, it was a major catalyst for the current restructuring and consolidation taking place within the utility industry. Numerous federal and state initiatives are in varying stages to promote wholesale and retail competition. Among other things, these initiatives allow customers to choose their electricity provider. As these initiatives materialize, the structure of the utility industry could radically change. Some states have approved initiatives that result in a separation of the ownership and/or operation of generating facilities from the ownership and/or operation of transmission and distribution facilities. While various restructuring and competition initiatives have been or are being discussed in Georgia, none have been enacted to date. Enactment would require numerous issues to be resolved, including significant ones relating to transmission pricing and recovery of any stranded investments. The inability of the Company to recover its investments, including the regulatory assets described in Note 1 to the financial statements, could have a material adverse effect on the financial condition of the Company. The Company is attempting to minimize or reduce its cost exposure. Continuing to be a low-cost producer could provide significant opportunities to increase market share and profitability in markets that evolve with changing regulation. Conversely, unless the Company remains a low-cost producer and provides quality service, the Company's retail energy sales growth could be limited, and this could significantly erode earnings. Compliance costs related to current and future environmental laws and regulations could affect earnings if such costs are not fully recovered. The Clean Air Act and other important environmental items are discussed later under "Environmental Matters." Rates to retail customers served by the Company are regulated by the GPSC. As part of the Company's rate settlement in 1992, it was informally agreed that the Company's earned rate of return on common equity should be 12.95 percent. In June 1998, the GPSC issued a four-year accounting order which settled its review of the Company's earnings. See Note 3 to the financial statements for additional information. The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. In the event that a portion of the Company's operations is no longer subject to these provisions, the Company would be required to write off related regulatory assets and liabilities that are not specifically recoverable, and determine if any other assets have been impaired. See Note 1 to the financial statements under "Regulatory Assets and Liabilities" for additional information. 11-192 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report Exposure to Market Risks Due to cost-based rate regulation, the Company has limited exposure to market volatility in interest rates and prices of electricity. To mitigate residual risks relative to movements in electricity prices, the Company enters into fixed price contracts for the purchase and sale of electricity through the wholesale electricity market. Realized gains and losses are recognized in the income statement as incurred. At December 31, 1998, exposure from these activities was not material to the Company's financial statements. Also, based on the Company's overall interest rate exposure at December 31, 1998, a near-term 100 basis point change in interest rates would not materially affect the financial statements. New Accounting Standards The FASB has issued Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, which must be adopted by the year 2000. This statement establishes accounting and reporting standards for derivative instruments -- including certain derivative instruments embedded in other contracts -- and for hedging activities. The Company has not yet quantified the impact of adopting this statement on its financial statements; however, the adoption could increase volatility in earnings. In March 1998, the American Institute of Certified Public Accountants (AICPA) issued a new Statement of Position, Accounting for the Costs of Computer Software Developed or Obtained for Internal Use. This statement requires capitalization of certain costs of internal-use software. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In April 1998, the AICPA issued a new Statement of Position, Reporting on the Cost of Start-up Activities. This statement requires that the costs of start-up activities and organizational costs be expensed as incurred. Any of these costs previously capitalized by a company must be written off in the year of adoption. The Company adopted this statement in January 1999, and it is not expected to have a material impact on the financial statements. In December 1998, the Emerging Issues Task Force (EITF) of the FASB issued EITF No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. The EITF requires that energy trading contracts must be marked to market through the income statement, with gains and losses reflected rather than revenues and purchased power. Energy trading contracts are defined as energy contracts entered into with the objective of generating profits on or from exposure to shifts or changes in market prices. The Company adopted the required accounting in January 1999, and it is not expected to have a material impact on the financial statements. Year 2000 Year 2000 Challenge In order to save storage space, computer programmers in the 1960s and 1970s shortened the year portion of date entries to just two digits. Computers assumed, in effect, that all years began with "19." This practice was widely adopted and hard-coded into computer chips and processors found in some equipment. This approach, intended to save processing time and storage space, was used until the mid-1990s. Unless corrected before the Year 2000, affected software systems and devices containing a chip or microprocessor with date and time functions could incorrectly process dates or the systems may cease to function. The Company depends on complex computer systems for many aspects of its operations, which include generation, transmission, and distribution of electricity, as well as other business support activities. The Company's goal is to have critical devices or software that are required to maintain operations to be Year 2000 ready by June 1999. Year 2000 ready means that a system or application is determined suitable for continued use through the Year 2000 and beyond. Critical systems include, but are not limited to, safe shutdown systems, turbine generator systems, control center computer systems, customer service systems, energy management systems, and telephone switches and equipment. Year 2000 Program and Status The Company's executive management recognizes the seriousness of the Year 2000 challenge and has dedicated what it believes to be adequate resources to address the issue. The Millennium Project is a team of employees, IBM consultants, and other contractors whose progress is reviewed on a monthly basis by a steering committee of Southern Company executives. 11-193 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report The Company's Year 2000 program was divided into two phases. Phase I began in 1996 and consisted of identifying and assessing corporate assets related to software systems and devices that contain a computer chip or clock. The first phase was completed in June 1997. Phase 2 consists of testing and remediating high priority systems and devices. Also, contingency planning is included in this phase. Completion of Phase 2 is targeted for June 1999. The Millennium Project will continue to monitor the affected computer systems, devices, and applications into the Year 2000. Southern Company has completed more than 70 percent of the activities contained in its work plan. The percentage of completion and projected completion by function are as follows: - - - - - - - ------------------------------------------------------------------------- Work Plan ------------------------------------------------ Remediation Project Inventory Assessment Testing Completion - - - - - - - ------------------------------------------------------------------------- Generation 100% 100% 70% 6/99 - - - - - - - ------------------------------------------------------------------------- Energy Management 100 100 90 6/99 - - - - - - - ------------------------------------------------------------------------- Transmission and Distribution 100 100 100 1/99 - - - - - - - ------------------------------------------------------------------------- Telecommunications 100 100 50 6/99 - - - - - - - ------------------------------------------------------------------------- Corporate Applications 100 100 90 3/99 - - - - - - - ------------------------------------------------------------------------ Year 2000 Costs Current projected total costs for Southern Company for Year 2000 readiness are approximately $91 million, which includes $6 million of cost billed to non-affiliated companies. These costs include labor necessary to identify, test, and remediate affected devices and systems. From its inception through December 31, 1998, the Year 2000 program costs for Southern Company, recognized as expense, amounted to $56 million. The Company's total estimated costs related to the project are approximately $1.2 million. Year 2000 costs of $0.5 million and $0.2 million were expensed in 1998 and 1997, respectively. The Company's estimated cost of completion is $0.5 million. Year 2000 Risks The Company is implementing a detailed process to minimize the possibility of service interruptions related to the Year 2000. The Company believes, based on current tests, that the system can provide customers with electricity. These tests increase confidence, but do not guarantee error-free operations. The Company is taking what it believes to be prudent steps to prepare for the Year 2000, and it expects any interruptions in service that may occur within the service territory to be isolated and short in duration. The Company expects the risks associated with Year 2000 to be no more severe than the scenarios that its electric system is routinely prepared to handle. The most likely worst case scenario consists of the service loss of one of the largest generating units and/or the service loss of any single bulk transmission element in its service territory. The Company has followed a proven methodology for identifying and assessing software and devices containing potential Year 2000 challenges. Remediation and testing of those devices are in progress. Following risk assessment, the Company is preparing contingency plans as appropriate and is participating in North American Electric Reliability Council-coordinated national drills during 1999. The Company is currently reviewing the Year 2000 readiness of material third parties that provide goods and services crucial to the Company's operations. Among such critical third parties are fuel, transportation, telecommunications, water, chemical, and other suppliers. Contingency plans based on the assessment of each third party's ability to continue supplying critical goods and services to the Company are being developed. There is a potential for some earnings erosion caused by reduced electrical demand by customers because of their own Year 2000 issues. Year 2000 Contingency Plans Because of experience with hurricanes and other storms, the Company is skilled at developing and using contingency plans in unusual circumstances. As part of Year 2000 business continuity and contingency planning, the Company is drawing on that experience to make risk assessments and developing additional plans to deal specifically with situations that could arise relative to Year 2000 challenges. The Company is identifying critical operational locations, and key employees will be on duty at those locations during the Year 2000 transition. In September 1999, drills are scheduled to be conducted to test contingency plans. Because of the level of detail of the contingency planning process, management feels that the contingency plans will keep any service interruptions that may occur within the service territory isolated and short in duration. 11-194 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report FINANCIAL CONDITION Overview The principal change in the Company's financial condition in 1998 was the addition of $18.1 million to utility plant. The funds needed for gross property additions are currently provided from operating activities, principally from earnings and non-cash charges to income such as depreciation and deferred income taxes and from financing activities. See Statements of Cash Flows for additional information. Capital Structure As of December 31, 1998, the Company's capital structure consisted of 46.4 percent common stock equity, 10.5 percent trust preferred securities, and 43.1 percent long-term debt, excluding amounts due within one year. The Company's long-term financial objective for capitalization ratios is to maintain a capital structure of common equity at 48 percent, preferred securities at 10 percent and debt at 42 percent. In March 1998, the Company issued $30 million of Series A 6 5/8% senior retail intermediate bonds maturing in 2015. The Company used these proceeds to redeem the remaining amount of its 8.30% first mortgage bonds due in 2022. Maturities and retirements of long-term debt were $30 million in 1998, $14 million in 1997, and $29 million in 1996. In November 1998, the Company redeemed all of its 1,400,000 shares of 6.64% Series Preferred Stock at a redemption price of $25 per share, plus accrued dividends through the date of redemption. In December 1998, Savannah Electric Capital Trust I, of which the Company owns all of the common securities, issued $40 million of 6.85% mandatorily redeemable preferred securities. The composite interest rates and dividend rates for the years 1996 through 1998 as of year-end were as follows: 1998 1997 1996 ------------------------------- Composite interest rates on long-term debt 6.5% 6.9% 7.0% Preferred stock dividend rate -% 6.6% 6.6% Trust preferred securities dividend rate 6.9% -% -% ================================================================== Capital Requirements for Construction The Company's projected construction expenditures for the next three years total $92 million ($29 million in 1999, $32 million in 2000, and $31 million in 2001). Actual construction costs may vary from this estimate because of factors such as changes in: business conditions; environmental regulations; load projections; the cost and efficiency of construction labor, equipment and materials; and the cost of capital. In addition, there can be no assurance that costs related to capital expenditures will be fully recovered. In early 1999, the Company will issue a Request for Proposal for bids to provide its capacity requirements for 2002. These bids will be compared to self-build options to identify the least cost supply option. The supply decision should be made by late summer. Construction of transmission and distribution facilities and upgrading of generating plants will be continuing. Other Capital Requirements In addition to the funds needed for the construction program, approximately $31.9 million will be needed by the end of 2001 for maturities of long-term debt and present sinking fund requirements. 11-195 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report Environmental Matters In November 1990, the Clean Air Act was signed into law. Title IV of the Clean Air Act--the acid rain compliance provision of the law--significantly affected the Company and other subsidiaries of Southern Company. Specific reductions in sulfur dioxide and nitrogen oxide emissions from fossil-fired generating plants are required in two phases. Phase I compliance began in 1995 and initially affected 28 generating units of Southern Company. As a result of Southern Company's compliance strategy, an additional 22 generating units, which included four of the Company's units, were brought into compliance with Phase I requirements. Phase II compliance is required in 2000, and all fossil-fired generating plants will be affected. Southern Company achieved Phase I sulfur dioxide compliance at the affected plants by switching to low-sulfur coal, which required some equipment upgrades. This compliance strategy resulted in unused emission allowances being banked for later use. Construction expenditures for Phase I compliance totaled approximately $2 million for Savannah Electric. For Phase II sulfur dioxide compliance, Southern Company could use emission allowances, increase fuel switching, and/or install flue gas desulfurization equipment at selected plants. Also, equipment to control nitrogen oxide emissions will be installed on additional system fossil-fired plants as necessary to meet Phase II limits. Current compliance strategy for Phase II and ozone non-attainment could require total estimated construction expenditures for Southern Company of approximately $70 million, of which $16 million remains to be spent. Phase II compliance is not expected to have a material impact on Savannah Electric. A significant portion of costs related to the acid rain provision of the Clean Air Act is expected to be recovered through existing ratemaking provisions. However, there can be no assurance that all Clean Air Act costs will be recovered. In July 1997, the Environmental Protection Agency (EPA) revised the national ambient air quality standards for ozone and particulate matter. This revision makes the standards significantly more stringent. In September 1998, the EPA issued the final regional nitrogen oxide rules to the states for implementation. The states have one year to adopt and implement the rules. The final rules affect 22 states including Georgia. The EPA rules are being challenged in the courts by several states and industry groups. Implementation of the final state rules could require substantial further reductions in nitrogen oxide emissions from fossil-fired generating facilities and other industry in these states. Implementation of the standards could result in significant additional compliance costs and capital expenditures that cannot be determined until the results of legal challenges are known, and the states have adopted their final rules. The EPA and state environmental regulatory agencies are reviewing and evaluating various other matters including: nitrogen oxide emission control strategies for ozone non-attainment areas; additional controls for hazardous air pollutant emissions; control strategies to reduce regional haze; and hazardous waste disposal requirements. The impact of new standards will depend on the development and implementation of applicable regulations. The Company must comply with other environmental laws and regulations that cover the handling and disposal of hazardous waste. Under these various laws and regulations, the Company could incur substantial costs to clean up properties currently or previously owned. The Company conducts studies to determine the extent of any required cleanup costs and will recognize in the financial statements any costs to clean up known sites. Several major pieces of environmental legislation are being considered for reauthorization or amendment by Congress. These include: the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; and the Endangered Species Act. Changes to these laws could affect many areas of Southern Company's operations. The full impact of any such changes cannot be determined at this time. Compliance with possible additional legislation related to global climate change, electromagnetic fields, and other environmental and health concerns could significantly affect Southern Company. The impact of new legislation--if any--will depend on the subsequent development and implementation of applicable regulations. In addition, the potential exists for liability as the result of lawsuits alleging damages caused by electromagnetic fields. 11-196 MANAGEMENT'S DISCUSSION AND ANALYSIS (continued) Savannah Electric and Power Company 1998 Annual Report Sources of Capital At December 31, 1998, the Company had $6.0 million of cash and $40.5 million of unused short-term credit arrangements with banks to meet its short-term cash needs. Revolving credit arrangements of $20 million, which expire December 31, 2001, are also used to meet short-term cash needs and to provide additional interim funding for the Company's construction program. Of the revolving credit arrangements, $20 million remained unused at December 31, 1998. It is anticipated that the funds required for construction and other purposes, including compliance with environmental regulation, will be derived from sources similar to those used in the past. These sources were primarily from the issuances of first mortgage bonds, other long-term debt, and preferred stock, in addition to pollution control revenue bonds issued for the Company's benefit by public authorities, to meet long-term external financing requirements. Recently, the Company's financings have consisted of unsecured debt and trust preferred securities. The Company is required to meet certain earnings coverage requirements specified in its mortgage indenture and corporate charter to issue new first mortgage bonds and preferred stock. The Company's coverage ratios are sufficiently high to permit, at present interest rate levels, any foreseeable security sales. In December 1998, the Company obtained stockholder approval to amend the corporate charter including the elimination of the restrictions on the amount of unsecured indebtedness allowed. The amount of securities which the Company will be permitted to issue in the future will depend upon market conditions and other factors prevailing at that time. Cautionary Statement Regarding Forward-Looking Information Savannah Electric and Power Company's 1998 Annual Report contains forward-looking and historical information. The Company cautions that there are various important factors that could cause actual results to differ materially from those indicated in the forward-looking information; accordingly, there can be no assurance that such indicated results will be realized. These factors include legislative and regulatory initiatives regarding deregulation and restructuring of the electric utility industry; the extent and timing of the entry of additional competition in the Company's markets; potential business strategies--including acquisitions or dispositions of assets or internal restructuring--that may be pursued by the Company; state and federal rate regulation; Year 2000 issues; changes in or application of environmental and other laws and regulations to which the Company is subject; political, legal and economic conditions and developments; financial market conditions and the results of financing efforts; changes in commodity prices and interest rates; weather and other natural phenomena; and other factors discussed in the reports--including Form 10-K--filed from time to time by the Company with the Securities and Exchange Commission. 11-197 STATEMENTS OF INCOME For the Years Ended December 31, 1998, 1997, and 1996 Savannah Electric and Power Company 1998 Annual Report
================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Revenues (Note 1): Revenues $ 251,439 $ 224,225 $ 230,944 Revenues from affiliates 3,016 2,052 3,130 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total operating revenues 254,455 226,277 234,074 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Operating Expenses: Operation -- Fuel 53,021 35,563 29,139 Purchased power from non-affiliates 9,460 2,347 2,350 Purchased power from affiliates 35,687 42,107 58,591 Other 49,055 47,735 44,007 Maintenance 18,711 13,236 14,140 Depreciation and amortization (Notes 1 and 3) 22,032 20,152 19,113 Taxes other than income taxes 12,342 11,494 11,675 Federal and state income taxes (Notes 1 and 6) 16,335 16,419 16,175 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total operating expenses 216,643 189,053 195,190 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Operating Income 37,812 37,224 38,884 Other Income (Expense): Allowance for equity funds used during construction 83 239 317 Interest income 384 279 201 Other, net (1,781) (781) (1,756) Income taxes applicable to other income (Notes 1 and 6) 1,234 1,233 1,034 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Income Before Interest Charges 37,732 38,194 38,680 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Interest and Other Charges: Interest on long-term debt 10,383 10,907 11,563 Allowance for debt funds used during construction (133) (164) (333) Interest on notes payable 278 172 229 Amortization of debt discount, premium, and expense, net 853 739 579 Distributions on preferred securities of subsidiary trust 167 - - Other interest charges 474 369 378 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Interest and other charges, net 12,022 12,023 12,416 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net Income 25,710 26,171 26,264 Dividends on Preferred Stock 2,066 2,324 2,324 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net Income After Dividends on Preferred Stock $ 23,644 $ 23,847 $ 23,940 ================================================================================================================================ STATEMENTS OF RETAINED EARNINGS For the Years Ended December 31, 1998, 1997, and 1996 ================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Balance at Beginning of Year $ 112,720 $ 109,373 $ 105,033 Net income after dividends on preferred stock 23,644 23,847 23,940 Cash dividends on common stock (23,500) (20,500) (19,600) Preferred stock transactions, net and other adjustments 90 - - - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Balance at End of Year (Note 9) $ 112,954 $ 112,720 $ 109,373 ================================================================================================================================ The accompanying notes are an integral part of these statements.
11-198 STATEMENTS OF CASH FLOWS For the Years Ended December 31, 1998, 1997, and 1996 Savannah Electric and Power Company 1998 Annual Report
================================================================================================================================ 1998 1997 1996 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) Operating Activities: Net income $ 25,710 $ 26,171 $ 26,264 Adjustments to reconcile net income to net cash provided from operating activities -- Depreciation and amortization 23,531 21,083 20,246 Deferred income taxes and investment tax credits, net 7,011 3,841 7,482 Allowance for equity funds used during construction (83) (239) (317) Other, net (6) (2,577) (641) Changes in certain current assets and liabilities -- Receivables, net (9,969) (3,239) (641) Inventories 705 1,720 410 Payables 470 (1,608) 4,242 Taxes accrued (434) 2,310 (569) Other (4,331) 2,357 (4,038) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash provided from operating activities 42,604 49,819 52,438 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Investing Activities: Gross property additions (18,071) (18,846) (28,950) Other 1,617 (1,418) (3,173) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash used for investing activities (16,454) (20,264) (32,123) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Financing Activities and Capital Contributions: Proceeds: Preferred securities 40,000 - - First mortgage bonds - - 20,000 Pollution control notes - 13,870 - Other long-term debt 30,000 - 17,000 Retirements: Preferred stock (35,000) - - First mortgage bonds (30,000) - (29,400) Pollution control bonds - (13,870) - Other long-term debt (478) (433) (397) Notes payable, net - (5,000) 1,000 Payment of preferred stock dividends (2,556) (2,324) (2,324) Payment of common stock dividends (23,500) (20,500) (19,600) Miscellaneous (4,798) (368) (2,257) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net cash used for financing activities (26,332) (28,625) (15,978) - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Net Change in Cash and Cash Equivalents (182) 930 4,337 Cash and Cash Equivalents at Beginning of Year 6,144 5,214 877 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Cash and Cash Equivalents at End of Year $ 5,962 $ 6,144 $ 5,214 ================================================================================================================================ Supplemental Cash Flow Information: Cash paid during the year for- Interest (net of amount capitalized) $12,198 $11,619 $12,960 Income taxes 9,666 11,150 10,926 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- ( ) Denotes use of cash. The accompanying notes are an integral part of these statements.
11-199 BALANCE SHEETS At December 31, 1998 and 1997 Savannah Electric and Power Company 1998 Annual Report
============================================================================================================================ Assets 1998 1997 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- (in thousands) Utility Plant: Plant in service, at original cost (Notes 1, 4, 5, and 8) $ 781,964 $ 760,694 Less accumulated provision for depreciation 341,930 321,509 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- 440,034 439,185 Construction work in progress 2,908 7,709 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 442,942 446,894 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Other Property and Investments 1,420 1,783 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Current Assets: Cash and cash equivalents 5,962 6,144 Special deposits - 94 Receivables- Customer accounts receivable 18,030 21,148 Other accounts and notes receivable 3,543 720 Affiliated companies 1,388 1,128 Accumulated provision for uncollectible accounts (284) (354) Fuel cost under recovery 17,628 7,694 Fossil fuel stock, at average cost 4,984 5,205 Materials and supplies, at average cost (Note 1) 6,496 6,980 Prepayments 4,772 5,922 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 62,519 54,681 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Deferred Charges and Other Assets: Deferred charges related to income taxes (Note 6) 17,130 17,267 Debt issue expense, being amortized 3,554 2,255 Premium on reacquired debt, being amortized 8,570 7,121 Prepaid pension costs (Note 2) 3,281 3,424 Cash surrender value of life insurance for deferred compensation plans 14,179 12,130 Miscellaneous 2,204 1,797 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 48,918 43,994 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total Assets $ 555,799 $ 547,352 ============================================================================================================================ The accompanying notes are an integral part of these statements.
II-200 BALANCE SHEETS At December 31, 1998 and 1997 Savannah Electric and Power Company 1998 Annual Report
============================================================================================================================ Capitalization and Liabilities 1998 1997 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- (in thousands) Capitalization (See accompanying statements): Common stock equity $ 175,865 $ 175,631 Preferred stock - 35,000 Company obligated mandatorily redeemable preferred securities of subsidiary trust holding company junior subordinated notes (Note 7) 40,000 - Long-term debt 163,443 142,846 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 379,308 353,477 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Current Liabilities: Amount of securities due within one year (Note 8) 689 21,764 Accounts payable- Affiliated companies 5,014 6,025 Other 10,833 7,862 Customer deposits 5,224 5,541 Taxes accrued- Federal and state income 2,467 534 Other 2,891 2,791 Interest accrued 3,815 4,963 Vacation pay accrued 1,978 1,893 Miscellaneous 6,700 9,031 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 39,611 60,404 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Deferred Credits and Other Liabilities: Accumulated deferred income taxes (Note 6) 82,778 80,697 Accumulated deferred investment tax credits (Note 6) 11,943 12,607 Deferred credits related to income taxes (Note 6) 21,349 21,469 Deferred compensation plans 9,788 9,272 Postretirement benefits (Note 2) 6,434 6,011 Miscellaneous 4,588 3,415 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Total 136,880 133,471 - - - - - - - ---------------------------------------------------------------------------------------------------------------------------- Commitments and Contingent Matters (Notes 1, 2, 3, 4, 5, and 8) Total Capitalization and Liabilities $ 555,799 $ 547,352 ============================================================================================================================ The accompanying notes are an integral part of these statements.
II-201 STATEMENTS OF CAPITALIZATION At December 31, 1998 and 1997 Savannah Electric and Power Company 1998 Annual Report
================================================================================================================================ 1998 1997 1998 1997 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- (in thousands) (percent of total) Common Stock Equity (Note 9): Common stock, par value $5 per share -- Authorized -- 16,000,000 shares Outstanding -- 10,844,635 shares in 1998 and 1997 $ 54,223 $ 54,223 Paid-in capital 8,688 8,688 Retained earnings 112,954 112,720 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total common stock equity 175,865 175,631 46.4 % 49.7 % - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Cumulative Preferred Stock (Note 7): $25 par value -- Authorized -- 2,200,000 shares 6.64% Series -- Outstanding -- 1,400,000 shares in 1997 - 35,000 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total (annual dividend requirement -- $2,324,000) - 35,000 - 9.9 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Company Obligated Mandatorily Redeemable Preferred Securities (Note 7): $25 Liquidation Value -- 6.85% 40,000 - - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total (annual distribution requirement -- $2,740,000) 40,000 - 10.5 - - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Long-Term Debt (Note 8): First mortgage bonds -- Maturity Interest Rates -------- -------------- July 1, 2003 6 3/8% 20,000 20,000 May 1, 2006 6.90% 20,000 20,000 July 1, 2022 8.30% - 30,000 July 1, 2023 7.40% 25,000 25,000 May 1, 2025 7 7/8% 15,000 15,000 Other long-term debt -- Pollution control revenue bonds -- Collateralized: Variable rate (4.00% at 1/1/99) due 2016 4,085 4,085 Variable rate bank note (5.10% at 1/1/99) due 2037 13,870 13,870 Long-term notes payable -- 6.88% due 2001 10,000 10,000 Variable rate (5.38% at 1/1/99) due 2001 10,000 15,000 Variable rate (5.77% at 1/1/99) due 2001 10,000 5,000 6 5/8% Retail Intermediate Bond due 2015 30,000 - Capitalized lease obligations -- Coal unloading facility variable rate (5.80% at 1/1/99) 5,467 5,867 Transportation fleet 710 788 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total long-term debt (annual interest requirement -- $10,717,000) 164,132 164,610 Less amount due within one year (Note 8) 689 21,764 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Long-term debt excluding amount due within one year 163,443 142,846 43.1 40.4 - - - - - - - -------------------------------------------------------------------------------------------------------------------------------- Total Capitalization $ 379,308 $ 353,477 100.0 % 100.0 % ================================================================================================================================ The accompanying notes are an integral part of these statements.
II-202 NOTES TO FINANCIAL STATEMENTS Savannah Electric and Power Company 1998 Annual Report 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES General Savannah Electric and Power Company (the Company), is a wholly owned subsidiary of Southern Company, which is the parent company of five operating companies, a system service company, Southern Communications Services (Southern LINC), Southern Energy, Inc. (Southern Energy), Southern Nuclear Operating Company (Southern Nuclear), Southern Company Energy Solutions, and other direct and indirect subsidiaries. The operating companies provide electric service in four southeastern states. Contracts among the companies--dealing with jointly owned generating facilities, interconnecting transmission lines, and the exchange of electric power--are regulated by the Federal Energy Regulatory Commission (FERC) and/or the Securities and Exchange Commission. The system service company provides, at cost, specialized services to Southern Company and subsidiary companies. Southern LINC provides digital wireless communications services to the operating companies and also markets these services to the public within the Southeast. Worldwide, Southern Energy develops and manages electricity and other energy related projects, including domestic energy trading and marketing. Southern Nuclear provides services to Southern Company's nuclear power plants. Southern Company Energy Solutions develops new business opportunities related to energy products and services. Southern Company is registered as a holding company under the Public Utility Holding Company Act of 1935 (PUHCA). Both Southern Company and its subsidiaries are subject to the regulatory provisions of the PUHCA. The Company also is subject to regulation by the FERC and the Georgia Public Service Commission (GPSC). The Company follows generally accepted accounting principles and complies with the accounting policies and practices prescribed by the GPSC. The preparation of financial statements in conformity with generally accepted accounting principles requires the use of estimates, and the actual results may differ from those estimates. Certain prior years' data presented in the financial statements has been reclassified to conform with the current year presentation. Regulatory Assets and Liabilities The Company is subject to the provisions of Financial Accounting Standards Board (FASB) Statement No. 71, Accounting for the Effects of Certain Types of Regulation. Regulatory assets represent probable future revenues to the Company associated with certain costs that are expected to be recovered from customers through the ratemaking process. Regulatory liabilities represent probable future reductions in revenues associated with amounts that are expected to be credited to customers through the ratemaking process. Regulatory assets and (liabilities) reflected in the Balance Sheets at December 31 relate to: 1998 1997 --------------------------- (in thousands) Deferred income taxes $ 17,130 $ 17,267 Premium on reacquired debt 8,570 7,121 Deferred income tax credits (21,349) (21,469) Storm damage reserves (1,580) (1,500) Accelerated depreciation (1,000) - - - - - - - - --------------------------------------------------------------- Total $ 1,771 $ 1,419 =============================================================== In the event that a portion of the Company's operations is no longer subject to the provisions of Statement No. 71, the Company would be required to write off related net regulatory assets and liabilities that are not specifically recoverable through regulated rates. In addition, the Company would be required to determine if any impairment to other assets exists, including plant, and write down the assets, if impaired, to their fair value. Revenues and Fuel Costs The Company currently operates as a vertically integrated utility providing electricity to retail customers within its traditional service area of southeastern Georgia, and to non-affiliated customers in the Southeast. Revenues, less affiliated transactions, by type of service were as follows: 1998 1997 1996 -------------------------------------- (in thousands) Retail $242,327 $219,458 $227,982 Sales for resale-- Non-affiliates 4,548 3,467 1,998 Other 4,564 1,300 964 - - - - - - - ------------------------------------------------------------ Total $251,439 $224,225 $230,944 ============================================================ Other revenues include rents and revenues from non-utility services. II-203 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report The Company accrues revenues for service rendered but unbilled at the end of each fiscal period. Fuel costs are expensed as the fuel is used. The Company's electric rates include provisions to adjust billings for fluctuations in fuel costs, the energy component of purchased power costs, and certain other costs. Revenues are adjusted for differences between recoverable fuel costs and amounts actually recovered in current rates. The Company has a diversified base of customers. No single customer or industry comprises 10 percent or more of revenues. In 1998, uncollectible accounts continued to average less than 1 percent of revenues. In January 1999, the GPSC approved an increase of slightly over one-tenth of a cent per kilowatt-hour in the Company's fuel allowance, effective in February 1999. Depreciation and Amortization Depreciation of the original cost of depreciable utility plant in service is provided primarily by using composite straight-line rates, which approximated 2.9 percent in 1998 and 1997 and 2.8 percent in 1996. When property subject to depreciation is retired or otherwise disposed of in the normal course of business, its cost--together with the cost of removal, less salvage--is charged to the accumulated provision for depreciation. Minor items of property included in the original cost of the plant are retired when the related property unit is retired. Depreciation expense includes an amount for the expected cost of removal of certain facilities. See Note 3 to the financial statements for more information. Income Taxes The Company, which is included in the consolidated federal income tax return filed by Southern Company, uses the liability method of accounting for deferred income taxes and provides deferred income taxes for all significant income tax temporary differences. Investment tax credits utilized are deferred and amortized to income over the average lives of the related property. Allowance for Funds Used During Construction (AFUDC) AFUDC represents the estimated debt and equity costs of capital funds that are necessary to finance the construction of new facilities. While cash is not realized currently from such allowance, it increases the revenue requirement over the service life of the plant through a higher rate base and higher depreciation expense. The composite rates used by the Company to calculate AFUDC were 8.00 percent in 1998, 9.24 percent in 1997 and 8.69 percent in 1996. Utility Plant Utility plant is stated at original cost, which includes: materials; labor; minor items of property; appropriate administrative and general costs; payroll-related costs such as taxes, pensions, and other benefits; and AFUDC. The cost of maintenance, repairs, and replacement of minor items of property is charged to maintenance expense. The cost of replacements of property (exclusive of minor items of property) is charged to utility plant. Cash and Cash Equivalents For purposes of the financial statements, temporary cash investments are considered cash equivalents. Temporary cash investments are securities with original maturities of 90 days or less. Financial Instruments The Company's financial instruments for which the carrying amounts did not equal fair value at December 31 were as follows: Carrying Fair Amount Value -------------------------- (in millions) Long-term debt: At December 31, 1998 $158 $162 At December 31, 1997 158 161 Trust preferred securities: At December 31, 1998 $40 $40 At December 31, 1997 - - The fair values for long-term debt and preferred securities were based on either closing market prices or closing prices of comparable instruments. II-204 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report Materials and Supplies Generally, materials and supplies include the costs of transmission, distribution, and generating plant materials. Materials are charged to inventory when purchased and then expensed or capitalized to plant, as appropriate, when installed. 2. RETIREMENT BENEFITS The Company has defined benefit, trusteed, non-contributory pension plans that cover substantially all employees. The Company provides certain medical care and life insurance benefits for retired employees. Substantially all these employees may become eligible for such benefits when they retire. The Company funds trusts to the extent deductible under federal income tax regulations or to the extent required by the GPSC. In 1998, the Company adopted FASB Statement No. 132, Employers' Disclosure about Pensions and Other Postretirement Benefits. The measurement date is September 30 of each year. The weighted average rates assumed in the actuarial calculations for both the pension plans and postretirement benefit plans were: 1998 1997 - - - - - - - --------------------------------------------------------------- Discount 6.75% 7.50% Annual salary increase 4.25 5.00 Long-term return on plan assets 8.50 8.50 - - - - - - - --------------------------------------------------------------- Pension Plan Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $51,720 $49,914 Service cost 1,495 1,393 Interest cost 3,806 3,556 Benefits paid (3,392) (2,403) Actuarial (gain) loss and employee transfers 4,343 (740) Amendments 1,235 - - - - - - - - --------------------------------------------------------------- Balance at end of year $59,207 $51,720 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $50,630 $42,430 Actual return on plan assets 171 7,603 Employer contributions 2,464 3,000 Benefits paid (3,392) (2,403) Employee transfers (243) - - - - - - - - --------------------------------------------------------------- Balance at end of year $49,630 $50,630 =============================================================== The accrued pension costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Funded status $(9,577) $(1,090) Unrecognized transition obligation 266 355 Unrecognized prior service cost 2,874 1,884 Unrecognized net loss 9,718 1,275 Fourth quarter contributions - 1,000 - - - - - - - ----------------------------------------------------------------- Prepaid asset recognized in the Balance Sheets $ 3,281 $ 3,424 ================================================================= Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ----------------------------------------------------------------- (in thousands) Service cost $1,495 $1,393 $1,352 Interest cost 3,806 3,556 3,389 Expected return on plan assets (3,992) (3,782) (3,263) Recognized net loss 2 475 626 Net amortization 334 280 224 - - - - - - - ----------------------------------------------------------------- Net pension cost $1,645 $1,922 $2,328 ================================================================= II-205 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report Postretirement Benefits Changes during the year in the projected benefit obligations and in the fair value of plan assets were as follows: Projected Benefit Obligations --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $20,899 $20,520 Service cost 348 319 Interest cost 1,527 1,499 Benefits paid (839) (526) Actuarial (gain) loss and employee transfers 1,621 (913) - - - - - - - --------------------------------------------------------------- Balance at end of year $23,556 $20,899 =============================================================== Plan Assets --------------------------- 1998 1997 - - - - - - - --------------------------------------------------------------- (in thousands) Balance at beginning of year $3,110 $2,473 Actual return on plan assets 85 365 Employer contributions 1,447 798 Benefits paid (839) (526) - - - - - - - --------------------------------------------------------------- Balance at end of year $3,803 $3,110 =============================================================== The accrued postretirement costs recognized in the Balance Sheets were as follows: 1998 1997 - - - - - - - ----------------------------------------------------------------- (in thousands) Funded status $(19,753) $(17,789) Unrecognized transition obligation 6,913 7,407 Unrecognized net loss 5,444 3,737 Fourth quarter contributions 1,152 749 - - - - - - - ----------------------------------------------------------------- Accrued liability recognized in the Balance Sheets $ (6,244) $(5,896) ================================================================= Components of the plans' net periodic cost were as follows: 1998 1997 1996 - - - - - - - ---------------------------------------------------------------- (in thousands) Service cost $ 348 $ 319 $ 360 Interest cost 1,528 1,499 1,422 Expected return on plan assets (276) (211) (129) Recognized net loss 104 125 171 Net amortization 494 494 494 - - - - - - - ----------------------------------------------------------------- Net postretirement cost $2,198 $2,226 $2,318 ================================================================ An additional assumption used in measuring the accumulated postretirement benefit obligations was a weighted average medical care cost trend rate of 8.30 percent for 1998, decreasing gradually to 4.75 percent through the year 2005, and remaining at that level thereafter. An annual increase or decrease in the assumed medical care cost trend rate of 1 percent would affect the accumulated benefit obligation and the service and interest cost components at December 31, 1998 as follows: 1 Percent 1 Percent Increase Decrease - - - - - - - --------------------------------------------------------------- (in thousands) Benefit obligation $1,301 $(1,227) Service and interest costs 107 (101) =============================================================== The Company has a supplemental retirement plan for certain executive employees. The plan is unfunded and payable from the general funds of the Company. The Company has purchased life insurance on participating executives, and plans to use these policies to satisfy this obligation. Benefit costs associated with this plan were $0.4 million for 1998, 1997 and 1996. Work Force Reduction Program In 1997, the Company incurred a $1.9 million, one-time charge to other operation expense for costs related to the implementation of a work force reduction program. II-206 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report 3. REGULATORY MATTERS Rates to retail customers served by the Company are regulated by the GPSC. As part of the Company's rate settlement in 1992, it was informally agreed that the Company's earned rate of return on common equity should be 12.95 percent. In June 1998, the GPSC approved a four-year accounting order for the Company. Under this order, the Company will reduce the electric rates of its small business customers by approximately $11 million over the next four years. The Company will also expense an additional $1.95 million in storm damage accruals and accrue an additional $8 million in depreciation on generating assets over the term of the order. The additional depreciation will be accumulated in a regulatory liability account to be available to mitigate any potential stranded costs. In addition, the Company has discretionary authority to provide up to an additional $0.3 million per year in storm damage accruals and up to an additional $4.0 million in depreciation expense over the four years. The Company is also precluded from asking for a rate increase except upon significant changes in economic conditions, new laws, or regulations. There will be a quarterly monitoring of the Company's earnings performance. 4. CONSTRUCTION PROGRAM The Company is engaged in a continuous construction program, currently estimated to total $29 million in 1999, $32 million in 2000, and $31 million in 2001. The construction program is subject to periodic review and revision, and actual construction costs may vary from the above estimates because of numerous factors. These factors include: changes in business conditions; revised load growth estimates; changes in environmental regulations; increasing costs of labor, equipment, and materials; and changes in cost of capital. The Company does not have any traditional baseload generating plants under construction. However, construction related to transmission and distribution facilities and the upgrading of generating plants will continue. 5. FINANCING AND COMMITMENTS General To the extent possible, the Company's construction program is expected to be financed from internal sources and from the issuance of additional long-term debt, preferred securities, and capital contributions from Southern Company. The amounts of long-term debt and preferred securities that can be issued in the future will be contingent on market conditions, the maintenance of adequate earnings levels, regulatory authorizations, and other factors. Bank Credit Arrangements At the end of 1998, unused credit arrangements with six banks totaled $40.5 million and expire at various times during 1999 and 2000. The Company's revolving credit arrangements of $20 million, all of which remained unused as of December 31, 1998, expire December 31, 2001. These agreements allow short-term borrowings to be converted into term loans, payable in 12 equal quarterly installments, with the first installment due at the end of the first calendar quarter after the applicable termination date or at an earlier date at the Company's option. In connection with these credit arrangements, the Company agrees to pay commitment fees based on the unused portions of the commitments. Assets Subject to Lien As amended and supplemented, the Company's Indenture of Mortgage, which secures the first mortgage bonds issued by the Company, constitutes a direct first lien on substantially all of the Company's fixed property and franchises. A second lien for $10 million of bank debt is secured by a portion of the Plant Kraft property and a second lien for $34 million in bank notes is secured by a portion of the Plant McIntosh property. II-207 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report Fuel Commitments To supply a portion of the fuel requirements of its generating plants, the Company has entered into long-term commitments for the procurement of fuel. In most cases, these contracts contain provisions for price escalations, minimum purchase levels, and other financial commitments. The Company has fuel commitments of $12.0 million and $9.0 million for 1999 and 2000, respectively. Operating Leases The Company has rental agreements with various terms and expiration dates. Rental expenses totaled $1.1 million for 1998, $1.2 million for 1997, and $1.6 million for 1996. The Company entered into a 22.5 year lease agreement effective December 1, 1995 for 100 new aluminum rail cars at an annual cost of approximately $0.5 million. The rail cars are used to transport coal to one of the Company's generating plants. At December 31, 1998, estimated future minimum lease payments for noncancelable operating leases were as follows: Rental Commitments -------------------- (in thousands) 1999 $ 483 2000 483 2001 483 2002 483 2003 483 2004 and thereafter 6,969 - - - - - - - ------------------------------------------------------------- 6. INCOME TAXES At December 31, 1998, tax-related regulatory assets and liabilities were $17 million and $21 million, respectively. The assets are attributable to tax benefits flowed through to customers in prior years and to taxes applicable to capitalized AFUDC. The liabilities are attributable to deferred taxes previously recognized at rates higher than current enacted tax law and to unamortized investment tax credits. Details of income tax provisions are as follows: 1998 1997 1996 -------------------------------- (in thousands) Total provision for income taxes Federal -- Currently payable $ 6,763 $ 9,743 $ 7,084 Deferred -- current year 8,377 4,522 8,216 -- reversal of prior years (2,565) (1,381) (1,989) - - - - - - - ------------------------------------------------------------------ 12,575 12,884 13,311 - - - - - - - ------------------------------------------------------------------ State -- Currently payable 1,327 1,603 575 Deferred -- current year 1,174 569 1,216 -- reversal of prior years 25 130 39 - - - - - - - ------------------------------------------------------------------ 2,526 2,302 1,830 - - - - - - - ------------------------------------------------------------------ Total 15,101 15,186 15,141 Less income taxes credited to other income (1,234) (1,233) (1,034) - - - - - - - ------------------------------------------------------------------ Total income taxes charged to operations $16,335 $16,419 $16,175 ================================================================== The tax effects of temporary differences between the carrying amounts of assets and liabilities in the financial statements and their respective tax bases, which give rise to deferred tax assets and liabilities, are as follows: 1998 1997 -------------------- Deferred tax liabilities: (in thousands) Accelerated depreciation $75,187 $72,663 Property basis differences 7,591 8,034 Other 10,187 5,850 - - - - - - - ---------------------------------------------------------------- Total 92,965 86,547 - - - - - - - ---------------------------------------------------------------- Deferred tax assets: Pension and other benefits 4,892 5,338 Other 2,828 2,957 - - - - - - - ---------------------------------------------------------------- Total 7,720 8,295 - - - - - - - ---------------------------------------------------------------- Net deferred tax liabilities 85,245 78,252 Portions included in current assets, net (2,467) 2,445 - - - - - - - ---------------------------------------------------------------- Accumulated deferred income taxes in the Balance Sheets $82,778 $80,697 ================================================================ Deferred investment tax credits are amortized over the life of the related property with such amortization normally applied as a credit to reduce depreciation in the Statements of Income. Credits amortized in this manner amounted to $0.7 million in 1998, 1997, and 1996. At December 31, 1998, all investment tax credits available to reduce federal income taxes payable had been utilized. II-208 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report A reconciliation of the federal statutory income tax rate to the effective income tax rate is as follows: 1998 1997 1996 --------------------------- Federal statutory tax rate 35% 35% 35% State income tax, net of federal income tax benefit 4 4 3 Other (2) (2) (1) -------------------------------------------------------------- Effective income tax rate 37% 37% 37% ============================================================== Southern Company files a consolidated federal income tax return. Under a joint consolidated income tax agreement, each subsidiary's current and deferred tax expense is computed on a stand-alone basis. Tax benefits from losses of the parent company are allocated to each subsidiary based on the ratio of taxable income to total consolidated taxable income. 7. CUMULATIVE PREFERRED STOCK AND TRUST PREFERRED SECURITIES In November 1998, the Company redeemed all of its 1,400,000 shares of 6.64% Series Preferred Stock at a redemption price of $25 per share, plus accrued dividends through the date of redemption. In December 1998, Savannah Electric Capital Trust I, of which the Company owns all of the common securities, issued $40 million of 6.85% mandatorily redeemable preferred securities. Substantially all of the assets of Trust I are $40 million aggregate principal amount of the Company's 6.85% junior subordinated notes due December 31, 2028. The Company considers that the mechanisms and obligations relating to the preferred securities, taken together, constitute a full and unconditional guarantee by the Company of payment obligations with respect to the preferred securities of Savannah Electric Capital Trust I. Savannah Electric Capital Trust I is a subsidiary of the Company, and accordingly is consolidated in the Company's financial statements. 8. LONG-TERM DEBT AND LONG-TERM DEBT DUE WITHIN ONE YEAR The Company's Indenture related to its First Mortgage Bonds is unlimited as to the authorized amount of bonds which may be issued, provided that required property additions, earnings and other provisions of such Indenture are met. In March 1998, the Company issued $30 million of Series A 6 5/8% senior retail intermediate bonds maturing in 2015. The Company used these proceeds to redeem the remaining amount of its 8.30% first mortgage bonds due in 2022. Maturities and retirements of long-term debt were $30 million in 1998, $14 million in 1997 and $29 million in 1996. In April 1997, the Company issued $14 million in variable rate pollution control obligations (bank note) maturing in 2037. The Company redeemed all of its remaining outstanding 6 3/4% Pollution Control Bonds due 2022. Assets acquired under capital leases are recorded as utility plant in service, and the related obligation is classified as other long-term debt. Leases are capitalized at the net present value of the future lease payments. However, for ratemaking purposes, these obligations are treated as operating leases, and as such, lease payments are charged to expense as incurred. A summary of the sinking fund requirements and scheduled maturities and redemptions of long-term debt due within one year at December 31 is as follows: 1998 1997 --------------------- (in thousands) Bond sinking fund requirement $800 $ 1,100 Less: Portion to be satisfied by certifying property additions 800 - - - - - - - - ------------------------------------------------------------------- Cash sinking fund requirement - 1,100 Other long-term debt maturities 689 20,664 - - - - - - - ------------------------------------------------------------------- Total $689 $21,764 =================================================================== II-209 NOTES (continued) Savannah Electric and Power Company 1998 Annual Report The first mortgage bond improvement (sinking) fund requirements amount to 1 percent of each outstanding series of bonds authenticated under the Indenture prior to January 1 of each year, other than those issued to collateralize pollution control and other obligations. The requirements may be satisfied by depositing cash or reacquiring bonds, or by pledging additional property equal to 1 2/3 times the requirements. The sinking fund requirements of first mortgage bonds were satisfied by cash redemption in 1998 and by certifying property additions in 1997. It is anticipated that the 1999 requirement will be satisfied by certifying property additions. Sinking fund requirements and/or maturities through 2003 applicable to long-term debt are as follows: $0.7 million in 1999; $0.6 million in 2000; $30.5 million in 2001; $0.5 million in 2002; and $20.4 million in 2003. 9. COMMON STOCK DIVIDEND RESTRICTIONS The Company's Indenture contains certain limitations on the payment of cash dividends on common stock. At December 31, 1998, approximately $68 million of retained earnings was restricted against the payment of cash dividends on common stock under the terms of the Indenture. 10. QUARTERLY FINANCIAL INFORMATION (Unaudited) Summarized quarterly financial data for 1998 and 1997 are as follows (in thousands): Net Income After Operating Operating Dividends on Quarter Ended Revenues Income Preferred Stock - - - - - - - ------------------------------------------------------------------ March 1998 $48,381 $ 6,214 $ 2,426 June 1998 69,616 11,606 7,807 September 1998 84,224 16,056 12,518 December 1998 52,234 3,936 893 March 1997 $42,945 $ 6,117 $ 2,545 June 1997 52,516 8,626 5,136 September 1997 79,900 17,531 14,276 December 1997 50,916 4,950 1,890 - - - - - - - ------------------------------------------------------------------ The Company's business is influenced by seasonal weather conditions and a seasonal rate structure, among other factors. II-210 SELECTED FINANCIAL AND OPERATING DATA Savannah Electric and Power Company 1998 Annual Report
========================================================================================================================= 1998 1997 1996 1995 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $254,455 $226,277 $234,074 $225,729 Net Income after Dividends on Preferred and Preference Stocks (in thousands) $23,644 $23,847 $23,940 $23,395 Cash Dividends on Common Stock (in thousands) $23,500 $20,500 $19,600 $17,600 Return on Average Common Equity (percent) 13.45 13.71 14.08 14.20 Total Assets (in thousands) $555,799 $547,352 $544,900 $524,662 Gross Property Additions (in thousands) $18,071 $18,846 $28,950 $26,503 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $175,865 $175,631 $172,284 $167,812 Preferred stock - 35,000 35,000 35,000 Preferred and preference stock subject to mandatory redemption - - - - Trust preferred securities 40,000 - - - Long-term debt 163,443 142,846 164,406 153,679 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $379,308 $353,477 $371,690 $356,491 ========================================================================================================================= Capitalization Ratios (percent): Common stock equity 46.4 49.7 46.4 47.1 Preferred and preference stock - 9.9 9.4 9.8 Trust preferred securities 10.5 - - - Long-term debt 43.1 40.4 44.2 43.1 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ========================================================================================================================= First Mortgage Bonds (in thousands): Issued - - 20,000 15,000 Retired 30,000 - 29,400 29,250 Preferred Stock and Preferred Securities (in thousands): Issued 40,000 - - - Retired 35,000 - - - - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 A1 Standard and Poor's AA- AA- A+ A+ Preferred Stock - Moody's "a2" "a2" "a2" "a2" Standard and Poor's A A A A - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 110,437 109,092 106,657 104,624 Commercial 15,328 14,233 13,877 13,339 Industrial 63 64 65 65 Other 377 1,129 1,097 1,048 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Total 126,205 124,518 121,696 119,076 ========================================================================================================================= Employees (year-end) 542 535 571 584
II-211 SELECTED FINANCIAL AND OPERATING DATA (continued) Savannah Electric and Power Company 1998 Annual Report
============================================================================================================================= 1994 1993 1992 1991 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $211,785 $218,442 $197,761 $189,646 Net Income after Dividends on Preferred and Preference Stocks (in thousands) $22,110 $21,459 $20,512 $24,030 Cash Dividends on Common Stock (in thousands) $16,300 $21,000 $22,000 $22,000 Return on Average Common Equity (percent) 14.00 13.73 12.89 15.13 Total Assets (in thousands) $518,305 $527,187 $352,175 $352,505 Gross Property Additions (in thousands) $30,078 $72,858 $30,132 $19,478 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $161,581 $154,269 $158,376 $159,841 Preferred stock 35,000 35,000 20,000 20,000 Preferred and preference stock subject to mandatory redemption - - - - Trust preferred securities - - - - Long-term debt 155,922 151,338 110,767 119,280 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $352,503 $340,607 $289,143 $299,121 ============================================================================================================================= Capitalization Ratios (percent): Common stock equity 45.8 45.3 54.8 53.4 Preferred and preference stock 9.9 10.3 6.9 6.7 Trust preferred securities - - - - Long-term debt 44.3 44.4 38.3 39.9 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 100.0 ============================================================================================================================= First Mortgage Bonds (in thousands): Issued - 45,000 30,000 30,000 Retired 5,065 - 38,750 22,500 Preferred Stock and Preferred Securities (in thousands): Issued - 35,000 - - Retired - 20,000 - - - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 A1 Standard and Poor's A A A A Preferred Stock - Moody's "a2" "a2" "a2" "a2" Standard and Poor's A- A- A- A- - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 103,199 101,032 99,164 97,446 Commercial 13,015 12,702 12,416 12,153 Industrial 65 69 73 73 Other 1,007 957 940 897 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------- Total 117,286 114,760 112,593 110,569 ============================================================================================================================= Employees (year-end) 616 665 688 672
II-212A SELECTED FINANCIAL AND OPERATING DATA (continued) Savannah Electric and Power Company 1998 Annual Report
=============================================================================================================================== 1990 1989 1988 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands) $205,635 $201,799 $182,440 Net Income after Dividends on Preferred and Preference Stocks (in thousands) $26,254 $25,535 $24,272 Cash Dividends on Common Stock (in thousands) $22,000 $20,000 $11,700 Return on Average Common Equity (percent) 16.85 16.88 17.03 Total Assets (in thousands) $340,050 $349,887 $347,051 Gross Property Additions (in thousands) $20,086 $18,831 $23,254 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Capitalization (in thousands): Common stock equity $157,811 $153,737 $148,883 Preferred stock 20,000 22,300 22,300 Preferred and preference stock subject to mandatory redemption - 2,884 3,075 Trust preferred securities - - - Long-term debt 112,377 117,522 98,285 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) $290,188 $296,443 $272,543 =============================================================================================================================== Capitalization Ratios (percent): Common stock equity 54.4 51.9 54.6 Preferred and preference stock 6.9 8.5 9.3 Trust preferred securities - - - Long-term debt 38.7 39.6 36.1 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total (excluding amounts due within one year) 100.0 100.0 100.0 =============================================================================================================================== First Mortgage Bonds (in thousands): Issued - 30,000 - Retired 9,135 18,275 12,231 Preferred Stock and Preferred Securities (in thousands): Issued - - 20,000 Retired 5,374 6,591 553 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Security Ratings: First Mortgage Bonds - Moody's A1 A1 A1 Standard and Poor's A A A- Preferred Stock - Moody's "a2" "a2" "a2" Standard and Poor's A- A- BBB+ - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Customers (year-end): Residential 96,452 94,766 93,486 Commercial 12,045 12,298 12,135 Industrial 76 69 69 Other 867 856 828 - - - - - - - ------------------------------------------------------------------------------------------------------------------------------- Total 109,440 107,989 106,518 =============================================================================================================================== Employees (year-end) 648 643 655
II-212B SELECTED FINANCIAL AND OPERATING DATA (continued) Savannah Electric and Power Company 1998 Annual Report
================================================================================================================================= 1998 1997 1996 1995 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $109,393 $96,587 $101,607 $95,208 Commercial 86,231 78,949 80,494 75,117 Industrial 37,865 35,301 37,077 36,040 Other 8,838 8,621 8,804 8,386 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total retail 242,327 219,458 227,982 214,751 Sales for resale - non-affiliates 4,548 3,467 1,998 1,851 Sales for resale - affiliates 3,016 2,052 3,130 7,200 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 249,891 224,977 233,110 223,802 Other revenues 4,564 1,300 964 1,927 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total $254,455 $226,277 $234,074 $225,729 ================================================================================================================================= Kilowatt-Hour Sales (in thousands): Residential 1,539,792 1,428,337 1,456,651 1,402,148 Commercial 1,236,337 1,156,078 1,141,218 1,099,570 Industrial 900,012 881,261 838,753 887,141 Other 131,142 124,490 126,215 126,057 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total retail 3,807,283 3,590,166 3,562,837 3,514,916 Sales for resale - non-affiliates 53,294 94,280 91,610 87,747 Sales for resale - affiliates 58,415 54,509 41,808 63,731 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total 3,918,992 3,738,955 3,696,255 3,666,394 ================================================================================================================================= Average Revenue Per Kilowatt-Hour (cents): Residential 7.10 6.76 6.98 6.79 Commercial 6.97 6.83 7.05 6.83 Industrial 4.21 4.01 4.42 4.06 Total retail 6.36 6.11 6.40 6.11 Sale for resale 6.77 3.71 3.84 5.98 Total sales 6.38 6.02 6.31 6.10 Residential Average Annual Kilowatt-Hour Use Per Customer 14,061 13,231 13,771 13,478 Residential Average Annual Revenue Per Customer $998.95 $894.73 $960.58 $915.15 Plant Nameplate Capacity Ratings (year-end) (megawatts) 788 788 788 788 Maximum Peak-Hour Demand (megawatts): Winter 582 625 666 630 Summer 846 802 811 811 Annual Load Factor (percent) 54.9 54.3 53.1 52.9 Plant Availability - Fossil-Steam (percent) 72.9 93.7 77.6 83.3 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 41.6 34.4 27.7 23.9 Oil and gas 12.9 5.2 3.1 5.9 Purchased power - From non-affiliates 3.4 1.4 2.1 2.3 From affiliates 42.1 59.0 67.1 67.9 - - - - - - - --------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 ================================================================================================================================= Total Fuel Economy Data: BTU per net kilowatt-hour generated 11,730 11,495 11,888 12,146 Cost of fuel per million BTU (cents) 198.75 197.19 203.36 179.25 Average cost of fuel per net kilowatt-hour generated (cents) 2.33 2.27 2.42 2.18 =================================================================================================================================
II-213 SELECTED FINANCIAL AND OPERATING DATA (continued) Savannah Electric and Power Company 1998 Annual Report
=================================================================================================================================== 1994 1993 1992 1991 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $89,195 $93,883 $82,670 $80,541 Commercial 71,227 71,320 64,756 61,827 Industrial 32,906 36,180 33,171 30,492 Other 7,946 7,810 7,095 6,561 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total retail 201,274 209,193 187,692 179,421 Sales for resale - non-affiliates 4,786 6,021 7,821 7,813 Sales for resale - affiliates 6,446 2,433 1,505 1,430 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 212,506 217,647 197,018 188,664 Other revenues (721) 795 743 982 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total $211,785 $218,442 $197,761 $189,646 =================================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 1,298,122 1,329,362 1,216,993 1,195,005 Commercial 1,045,831 1,015,935 953,840 925,757 Industrial 799,543 854,324 861,121 825,862 Other 119,593 115,969 110,270 106,683 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total retail 3,263,089 3,315,590 3,142,224 3,053,307 Sales for resale - non-affiliates 201,716 247,203 367,066 372,085 Sales for resale - affiliates 93,001 75,384 37,632 32,581 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total 3,557,806 3,638,177 3,546,922 3,457,973 =================================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 6.87 7.06 6.79 6.74 Commercial 6.81 7.02 6.79 6.68 Industrial 4.12 4.23 3.85 3.69 Total retail 6.17 6.31 5.97 5.88 Sale for resale 3.81 2.62 2.30 2.28 Total sales 5.97 5.98 5.55 5.46 Residential Average Annual Kilowatt-Hour Use Per Customer 12,686 13,269 12,369 12,323 Residential Average Annual Revenue Per Customer $871.68 $937.07 $840.23 $830.54 Plant Nameplate Capacity Ratings (year-end) (megawatts) 788 628 628 605 Maximum Peak-Hour Demand (megawatts): Winter 617 524 533 526 Summer 729 747 695 691 Annual Load Factor (percent) 54.3 54.1 55.0 54.1 Plant Availability - Fossil-Steam (percent) 81.0 90.2 89.1 76.9 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 18.6 21.5 12.0 16.3 Oil and gas 1.8 4.5 2.9 1.7 Purchased power - From non-affiliates 1.5 0.9 1.0 0.4 From affiliates 78.1 73.1 84.1 81.6 - - - - - - - ----------------------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 100.0 =================================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 11,786 11,515 12,547 10,917 Cost of fuel per million BTU (cents) 205.03 215.97 201.50 199.42 Average cost of fuel per net kilowatt-hour generated (cents) 2.42 2.49 2.53 2.18 ===================================================================================================================================
II-214A SELECTED FINANCIAL AND OPERATING DATA (continued) Savannah Electric and Power Company 1998 Annual Report
================================================================================================================== 1990 1989 1988 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Operating Revenues (in thousands): Residential $87,063 $85,113 $81,098 Commercial 65,462 65,474 62,640 Industrial 30,237 28,304 26,865 Other 6,782 6,892 6,557 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total retail 189,544 185,783 177,160 Sales for resale - non-affiliates 9,482 8,814 808 Sales for resale - affiliates 5,566 6,025 3,567 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total revenues from sales of electricity 204,592 200,622 181,535 Other revenues 1,043 1,177 905 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total $205,635 $201,799 $182,440 =================================================================================================================== Kilowatt-Hour Sales (in thousands): Residential 1,183,486 1,109,976 1,067,411 Commercial 892,931 839,756 806,687 Industrial 644,704 561,063 533,604 Other 103,539 101,164 97,072 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total retail 2,824,660 2,611,959 2,504,774 Sales for resale - non-affiliates 441,090 437,943 24,168 Sales for resale - affiliates 294,042 303,142 156,106 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total 3,559,792 3,353,044 2,685,048 =================================================================================================================== Average Revenue Per Kilowatt-Hour (cents): Residential 7.36 7.67 7.60 Commercial 7.33 7.80 7.77 Industrial 4.69 5.04 5.03 Total retail 6.71 7.11 7.07 Sale for resale 2.05 2.00 2.43 Total sales 5.75 5.98 6.76 Residential Average Annual Kilowatt-Hour Use Per Customer 12,339 11,781 11,489 Residential Average Annual Revenue Per Customer $907.68 $903.37 $872.87 Plant Nameplate Capacity Ratings (year-end) (megawatts) 605 605 605 Maximum Peak-Hour Demand (megawatts): Winter 428 548 471 Summer 648 613 574 Annual Load Factor (percent) 53.2 52.4 53.4 Plant Availability - Fossil-Steam (percent) 89.6 94.7 77.1 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Source of Energy Supply (percent): Coal 52.8 63.5 79.8 Oil and gas 3.4 1.4 5.4 Purchased power - From non-affiliates 0.8 1.5 5.9 From affiliates 43.0 33.6 8.9 - - - - - - - ------------------------------------------------------------------------------------------------------------------- Total 100.0 100.0 100.0 =================================================================================================================== Total Fuel Economy Data: BTU per net kilowatt-hour generated 10,741 10,611 10,683 Cost of fuel per million BTU (cents) 188.18 180.48 178.31 Average cost of fuel per net kilowatt-hour generated (cents) 2.02 1.92 1.90 ===================================================================================================================
II-214B PART III Items 10, 11, 12 and 13 for SOUTHERN are incorporated by reference to ELECTION OF DIRECTORS in SOUTHERN's definitive Proxy Statement relating to the 1999 annual meeting of stockholders. The ages of directors and executive officers in Item 10 set forth below are as of December 31, 1998. Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS ALABAMA Identification of directors of ALABAMA. Elmer B. Harris (1) President and Chief Executive Officer Age 59 Served as Director since 3-1-89 Whit Armstrong (2) Age 51 Served as Director since 9-24-82 David J. Cooper, Sr. (2) Age 53 Served as Director since 4-24-98 A. W. Dahlberg (2) Age 58 Served as Director since 4-22-94 Peter V. Gregerson, Sr. (2) Age 70 Served as Director since 10-22-93 Carl E. Jones, Jr. (2) Age 58 Served as Director since 4-22-88 Patricia M. King (2) Age 53 Served as Director since 7-25-97 James K. Lowder (2) Age 49 Served as Director since 7-25-97 Wallace D. Malone, Jr. (2) Age 62 Served as Director since 6-22-90 Thomas C. Meredith (2) Age 57 Served as Director since 10-23-98 William V. Muse (2) Age 59 Served as Director since 2-26-93 John T. Porter (2) Age 67 Served as Director since 10-22-93 Robert D. Powers (2) Age 48 Served as Director since 1-24-92 Andreas Renschler (2) Age 40 Served as Director since 1-23-98 C. Dowd Ritter (2) Age 51 Served as Director since 7-25-97 William J. Rushton, III (2) Age 69 Served as Director since 9-18-70 James H. Sanford (2) Age 54 Served as Director since 8-1-83 John C. Webb, IV (2) Age 56 Served as Director since 4-22-77 (1) Previously served as Director of ALABAMA from 1980 to 1985. (2) No position other than Director. Each of the above is currently a director of ALABAMA, serving a term running from the last annual meeting of ALABAMA's stockholder (April 24, 1998) for one year until the next annual meeting or until a successor is elected and qualified, except for Dr. Meredith, who was elected on the date indicated. III-1 There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as a director or nominee, other than any arrangements or understandings with directors or officers of ALABAMA acting solely in their capacities as such. Identification of executive officers of ALABAMA. Elmer B. Harris (1) President, Chief Executive Officer and Director Age 59 Served as Executive Officer since 3-1-89 Banks H. Farris Executive Vice President Age 63 Served as Executive Officer since 12-3-91 Michael D. Garrett Executive Vice President - External Affairs Age 49 Served as Executive Officer since 3-1-98 William B. Hutchins, III Executive Vice President, Chief Financial Officer and Treasurer Age 55 Served as Executive Officer since 12-3-91 Earl B. Parsons, Jr. Senior Vice President Age 60 Served as Executive Officer since 6-1-98 (1) Previously served as executive officer of ALABAMA from 1979 to 1985. Each of the above is currently an executive officer of ALABAMA, serving a term running from the last annual meeting of the directors (April 24, 1998) for one year until the next annual meeting or until his successor is elected and qualified, except for Mr. Parsons, who was elected on the date indicated. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as an officer, other than any arrangements or understandings with officers of ALABAMA acting solely in their capacities as such. Identification of certain significant employees. None. Family relationships. None. Business experience. Elmer B. Harris - President and Chief Executive Officer since 1989. Director of SOUTHERN and AmSouth Bancorporation. Whit Armstrong - President, Chairman of the Board and Director of The Citizens Bank, Enterprise, Alabama. Also, President, Chairman of the Board and Director of Enterprise Capital Corporation, Inc. Director of The Enstar Group, Inc. David J. Cooper, Sr. - President of Cooper/T. Smith Corporation, a maritime company with a core business of stevedoring and tugboats. Director of Cooper/T. Smith Corporation and subsidiaries. Chairman of the Board, American Equity Underwriters, Inc., Mobile, Alabama. A. W. Dahlberg - Chairman, President and Chief Executive Officer of SOUTHERN since 1995. He previously served as President of SOUTHERN from 1994 to 1995 and President and Chief Executive Officer of GEORGIA from 1988 through 1993. Director of SOUTHERN, GEORGIA, Equifax, Inc., Protective Life Corporation and SunTrust Banks, Inc. Peter V. Gregerson, Sr. - Chairman Emeritus of Gregerson's Foods, Inc. (retail groceries), Gadsden, Alabama. Carl E. Jones, Jr. - President and Chief Executive Officer of Regions Financial Corporation, Birmingham, Alabama. Patricia M. King - President and Chief Executive Officer of King Motor Co., Inc., King's Highway, Inc. and King Imports, Inc., Anniston, Alabama. Director of Regions Bank, Anniston, Alabama. James K. Lowder - President and Chief Executive Officer of The Colonial Company (real estate development and sales), Montgomery, Alabama. III-2 Wallace D. Malone, Jr. - Chairman and Chief Executive Officer of SouthTrust Corporation, bank holding company, Birmingham, Alabama. Director of American Cast Iron Pipe Company, Birmingham, Alabama. Thomas C. Meredith - Chancellor of The University of Alabama System, Tuscaloosa, Alabama. Director of ATMOS Energy Corporation, Dallas, Texas. William V. Muse - President of Auburn University, Auburn, Alabama. Director of SouthTrust Bank and American Cast Iron Pipe Company, Birmingham, Alabama. John T. Porter - Pastor of Sixth Avenue Baptist Church, Birmingham, Alabama. Director of Citizens Federal Savings Bank, Birmingham, Alabama. Robert D. Powers - President and Director, The Eufaula Agency, Inc. (real estate and insurance), Eufaula, Alabama. Andreas Renschler - President and Chief Executive Officer of Mercedes-Benz U.S. International, Inc., Tuscaloosa County, Alabama. C. Dowd Ritter - Chairman, President, Chief Executive Officer and Director, AmSouth Bancorporation and AmSouth Bank, Birmingham, Alabama. William J. Rushton, III - Chairman Emeritus of Protective Life Corporation (insurance holding company), Birmingham, Alabama. Director of SOUTHERN. James H. Sanford - Chairman, HOME Place Farms Inc. (diversified farmers and ginners), Prattville, Alabama. President, Autauga Quality Cotton Association. Chairman of the Board, Sylvest Farms of Georgia, Inc., College Park, Georgia. Chairman of the Board, Sylvest Poultry Inc., Montgomery, Alabama. John C. Webb, IV - President, Webb Lumber Company, Inc. (wholesale lumber and wood products sales), Demopolis, Alabama. Director of J. F. Suttle, Co. Banks H. Farris - Executive Vice President - Customer Service since 1994. Responsible for providing the overall management of human resources, information resources, power delivery and marketing departments, customer service centers and the six geographic divisions. He previously served as Senior Vice President from 1991 to 1994. Michael D. Garrett - Executive Vice President - External Affairs since 1998. Responsible for governmental relations, environmental, public relations, economic development, corporate real estate and corporate services. He previously served as Senior Vice President - External Affairs from February 1994 to March 1998. Director of AmSouth Bank, Birmingham, Alabama. William B. Hutchins, III - Executive Vice President, and Chief Financial Officer since 1991. Treasurer was added to his responsibilities in 1998. Responsible for financial and accounting operations, corporate planning and treasury operations. He previously served as Senior Vice President and Chief Financial Officer from 1991 to 1994. Earl B. Parsons, Jr. - Senior Vice president - Fossil and Hydro Generation since 1995. Responsible for providing the overall management of the Fossil Generation, Hydro Generation, Power Generation Support and Fuels Department. He previously served as Vice President of Power Generation and Transmission at GULF. Involvement in certain legal proceedings. None. III-3 GEORGIA Identification of directors of GEORGIA. H. Allen Franklin President and Chief Executive Officer Age 54 Served as Director since 1-1-94 Warren Y. Jobe Executive Vice President Age 58 Served as Director since 8-1-82 Daniel P. Amos (1) Age 47 Served as Director since 5-21-97 Juanita P. Baranco (1) Age 49 Served as Director since 5-21-97 A. W. Dahlberg (1) Age 58 Served as Director since 6-1-88 William A. Fickling, Jr. (1) Age 66 Served as Director since 4-18-73 L. G. Hardman III (1) Age 59 Served as Director since 6-25-79 James R. Lientz, Jr. (1) Age 55 Served as Director since 7-21-93 Zell Miller (1) Age 67 Served as Director since 2-17-99 G. Joseph Prendergast (1) Age 53 Served as Director since 1-20-93 Herman J. Russell (1) Age 68 Served as Director since 5-18-88 Gloria M. Shatto (1) Age 67 Served as Director since 2-20-80 William Jerry Vereen (1) Age 58 Served as Director since 5-18-88 Carl Ware (1) (2) Age 55 Served as Director since 2-15-95 (1) No position other than Director. (2) Previously served as Director of GEORGIA from 1980 to 1991. Each of the above is currently a director of GEORGIA, serving a term running from the last annual meeting of GEORGIA's stockholder (May 20, 1998) for one year until the next annual meeting or until a successor is elected and qualified, except for Mr. Miller, who was elected on the date indicated. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he/she was or is to be selected as a director or nominee, other than any arrangements or understandings with directors or officers of GEORGIA acting solely in their capacities as such. Identification of executive officers of GEORGIA. H. Allen Franklin President, Chief Executive Officer and Director Age 54 Served as Executive Officer since 1-1-94 Warren Y. Jobe Executive Vice President and Director Age 58 Served as Executive Officer since 5-19-82 William C. Archer, III Executive Vice President - External Affairs Age 50 Served as Executive Officer since 4-6-95 III-4 Gene R. Hodges Executive Vice President - Customer Operations Age 60 Served as Executive Officer since 11-19-86 David M. Ratcliffe Executive Vice President, Treasurer and Chief Financial Officer Age 50 Served as Executive Officer since 3-1-98 Wayne T. Dahlke Senior Vice President - Power Delivery Age 57 Served as Executive Officer since 4-19-89 James K. Davis Senior Vice President - Corporate Relations Age 58 Served as Executive Officer since 10-1-93 Robert H. Haubein Senior Vice President - Fossil/Hydro Power Age 58 Served as Executive Officer since 2-19-92 Leonard J. Haynes Senior Vice President - Marketing Age 48 Served as Executive Office since 10-13-98 Fred R. Williams Senior Vice President - Resource Policy & Planning Age 54 Served as Executive Officer since 11-18-92 Each of the above is currently an executive officer of GEORGIA, serving a term running from the last annual meeting of the directors (May 20, 1998) for one year until the next annual meeting or until his successor is elected and qualified, except for Mr. Haynes, who was elected on the date indicated. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as an officer, other than any arrangements or understandings with officers of GEORGIA acting solely in their capacities as such. Identification of certain significant employees. None. Family relationships. None. Business experience. H. Allen Franklin - President and Chief Executive Officer since 1994. He previously served as President and Chief Executive Officer of SCS from 1988 through 1993. Director of SOUTHERN and SouthTrust Corporation. Warren Y. Jobe - Executive Vice President since 1982. He previously served as Chief Financial Officer and Treasurer from 1982 to 1998. Effective February 1998, elected Senior Vice President of SOUTHERN with responsibilities for corporate development, including customer relations and civic and community affairs. Daniel P. Amos - President and Chief Executive Officer, American Family Life Assurance Company, Incorporated (AFLAC), Columbus, Georgia. Director, AFLAC Incorporated (and subsidiaries), CIT Group and Greystone Capital Partners, I.L.P. Juanita P. Baranco - Business owner of Baranco Automotive Group. Director of Federal Reserve Bank of Atlanta and John H. Harland Company, Decatur, Georgia. A. W. Dahlberg - Chairman, President and Chief Executive Officer of SOUTHERN since 1995. He previously served as President of SOUTHERN from 1994 to 1995 and President and Chief Executive Officer of GEORGIA from 1988 through 1993. Director of SOUTHERN, ALABAMA, Equifax, Inc., Protective Life Corporation and SunTrust Banks, Inc. William A. Fickling, Jr. - Chairman of the Board, Chief Executive Officer of Beech Street Corporation (provider of managed care services) and President from 1995 to 1996. He previously served as Chairman of the Board and Chief Executive Officer of Charter Medical Corporation (provider of psychiatric care). L. G. Hardman III - Chairman of the Board and Chief Executive Officer of First Commerce Bancorp, Inc. Chairman of the Board of The First National Bank of Commerce, Georgia and Chairman of the Board, President and Treasurer of Harmony Grove Mills, Inc. (real estate investments). Director of SOUTHERN. III-5 James R. Lientz, Jr. - President, NationsBank, Mid-South Banking Group since 1993. He previously served as President and Chief Executive Officer of former C&S of South Carolina (now NationsBank) from 1990 to 1993. Director of Cerulean Companies, Inc. and Blue Cross/Blue Shield of Georgia. Zell Miller - Former Governor of Georgia. He served two terms as Governor of the State of Georgia, leaving office in January 1999. He previously served as Lieutenant Governor of Georgia. Director of Albany-based Gray Communications, Atlanta-based Post Properties, Atlanta-based Law Companies Group and United Community Banks, Inc., Blairsville, GA. G. Joseph Prendergast - Senior Executive Vice President, Wachovia Corporation. Heads the banking division comprising the companies' consumer and corporate banking activities and Wachovia Bank, N.A. Herman J. Russell - Chairman and Chief Executive Officer of H. J. Russell & Company (construction), Atlanta, Georgia. Chairman of the Board, Citizens Trust Bank, Atlanta, Georgia. Director of Wachovia Corporation and First Union Real Estate and Mortgage Investments. Gloria M. Shatto - President Emerita, Berry College, Mount Berry, Georgia. Director of SOUTHERN, Becton Dickinson & Company and Texas Instruments Incorporated. William Jerry Vereen - President, Treasurer and Chief Executive Officer of Riverside Manufacturing Company (manufacture and sale of uniforms), Moultrie, Georgia. Director of Gerber Scientific, Inc., Textile Clothing Technology Corporation, Cerulean Companies, Inc. and Blue Cross/Blue Shield of Georgia. Carl Ware - President, Africa Group, The Coca-Cola Company since 1991. William C. Archer, III - Executive Vice President - External Affairs since September 1995. Senior Vice President - External Affairs from April 1995 to September 1995. Vice President - Human Resources for SCS from 1992 to 1995. Responsible for governmental and regulatory affairs, corporate relations, land department, environmental affairs, corporate communications, risk management, corporate security, regulatory and litigation support and corporate concerns. Gene R. Hodges - Executive Vice President - Customer Operations, Power Delivery and Safety since 2-19-92. Elected Vice President in charge of customer service and power delivery in 1992. Safety department was added to the Executive Vice President's responsibilities in 1995. Responsible for the northern and southern regions and power delivery, customer service, region safety and labor relations areas. David M. Ratcliffe - Executive Vice President and Treasurer since 3-1-98 and Executive Vice President, Treasurer and Chief Financial Officer since 5-20-98. He previously served as Senior Vice President - External Affairs of SOUTHERN from 1995 to 1998. President and Chief Executive Officer of MISSISSIPPI from 1991 to 1995. Responsible for accounting, corporate secretary, finance and procurement. Wayne T. Dahlke - Senior Vice President - Power Delivery since 1992. Senior Vice President - Marketing from 1989 to 1992. Responsible for transmission and construction, planning and projects, distribution, forestry and right of way services and system operations. James K. Davis - Senior Vice President - Corporate Relations since 1993. Vice President of Corporate Relations from 1988 to 1993. Responsible for corporate relations and consumer affairs. Robert H. Haubein - Senior Vice President - Fossil/ Hydro Power since 1994. Senior Vice President - Administrative Services from 1992 to 1994. Responsible for fossil/hydro power generation, labor relations, safety and health. Leonard J. Haynes - Senior Vice President - Marketing since 1998. Vice President of Marketing from October 1995 to November 1998. Responsible for GEORGIA's and SAVANNAH's Power Marketing organizations as well as SOUTHERN's national accounts organization. Fred R. Williams - Senior Vice President - Resource Policy and Planning since 1997. Senior Vice President - Wholesale Power Marketing from 1995 to 1997. Senior Vice President - Bulk Power Markets from 1992 to August 1995. Responsible for managing the supply needs for retail and wholesale customers and developing policy and recommendations for future industry structure. Involvement in certain legal proceedings. None. III-6 GULF Identification of directors of GULF. Travis J. Bowden President and Chief Executive Officer Age 60 Served as Director since 2-1-94 Paul J. DeNicola (1) Age 50 Served as Director since 4-19-91 Fred C. Donovan, Sr. (1) Age 58 Served as Director since 1-18-91 W. Deck Hull, Jr. (1) Age 66 Served as Director since 10-14-83 Joseph K. Tannehill (1) Age 65 Served as Director since 7-19-85 Barbara H. Thames (1) Age 58 Served as Director since 2-28-97 (1) No position other than Director. Each of the above is currently a director of GULF, serving a term running from the last annual meeting of GULF's stockholder (June 30, 1998) for one year until the next annual meeting or until a successor is elected and qualified. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as a director or nominee, other than any arrangements or understandings with directors or officers of GULF acting solely in their capacities as such. Identification of executive officers of GULF. Travis J. Bowden President, Chief Executive Officer and Director Age 60 Served as Executive Officer since 2-1-94 Francis M. Fisher, Jr. Vice President - Power Delivery and Customer Operations Age 50 Served as Executive Officer since 5-19-89 John E. Hodges, Jr. Vice President - Marketing and Employee/External Affairs Age 55 Served as Executive Officer since 5-19-89 Robert G. Moore Vice President - Power Generation and Transmission Age 49 Served as Executive Officer since 7-25-97 Arlan E. Scarbrough Vice President - Finance Age 62 Served as Executive Officer since 9-21-77 Each of the above is currently an executive officer of GULF, serving a term running from the last annual meeting of the directors (July 24, 1998) for one year until the next annual meeting or until his successor is elected and qualified. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as an officer, other than any arrangements or understandings with officers of GULF acting solely in their capacities as such. Identification of certain significant employees. None. Family relationships. None. Business experience. Travis J. Bowden - President and Chief Executive Officer since 1994. He previously served as Executive Vice President of ALABAMA from 1985 to 1994. III-7 Paul J. DeNicola - President and Chief Executive Officer of SCS since 1994. Executive Vice President and Group Executive of SOUTHERN since 1991. He previously served as Executive Vice President of SCS from 1991 through 1993. Director of SOUTHERN, MISSISSIPPI and SAVANNAH. Fred C. Donovan, Sr. - President of Baskerville - Donovan, Inc., an architectural and engineering firm, Pensacola, Florida. W. Deck Hull, Jr. - President and Director of Hull Company - Panama City, Florida. He previously served as Vice Chairman of the SunTrust Bank, West Florida, Panama City, Florida. Joseph K. Tannehill - President, Chairman and Chief Executive Officer of Tannehill International Industries, Inc., Lynn Haven, Florida. Director of Regions Bank of North Florida, Panama City, Florida. Barbara H. Thames - Vice President of West Florida Regional Medical Center, Pensacola, Florida. She previously served as Chief Executive Officer of Santa Rosa Medical Center, Milton, Florida. Francis M. Fisher, Jr. - Vice President - Power Delivery and Customer Operations since 1996. He previously served as Vice President-Employee and External Relations from 1989 to 1996. Responsible for power delivery, customer operations, corporate real estate, and total quality management and serves as compliance officer. John E. Hodges, Jr. - Vice President - Marketing and Employee/External Affairs since 1996. He previously served as Vice President - Customer Operations from 1989 to 1996. Responsible for corporate communications, marketing, govermental affairs, economic development, safety and health, employee relations and human resources-coastal region. Robert G. Moore - Vice President - Power Generation and Transmission of GULF and Vice President of Fossil Generation of SCS since 1997. He previously served as Plant Manager - Bowen at GEORGIA. Responsible for the generation and transmission of electricity and bulk power maketing efforts. Arlan E. Scarbrough - Vice President - Finance since 1980. Responsible for all accounting, financial and regulatory matters. Involvement in certain legal proceedings. None. III-8 MISSISSIPPI Identification of directors of MISSISSIPPI. Dwight H. Evans President and Chief Executive Officer Age 50 Served as Director since 3-27-95 Paul J. DeNicola (1) Age 50 Served as Director since 5-1-89 Edwin E. Downer (1) Age 67 Served as Director since 4-24-84 Robert S. Gaddis (1) Age 67 Served as Director since 1-21-86 Aubrey K. Lucas (1) Age 64 Served as Director since 4-24-84 George A. Schloegel (1) Age 58 Served as Director since 7-26-95 Philip J. Terrell (1) Age 45 Served as Director since 2-22-95 N. Eugene Warr (1) Age 63 Served as Director since 1-21-86 (1) No position other than Director. Each of the above is currently a director of MISSISSIPPI, serving a term running from the last annual meeting of MISSISSIPPI's stockholder (April 7, 1998) for one year until the next annual meeting or until his successor is elected and qualified. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he or she was or is to be selected as a director or nominee, other than any arrangements or understandings with directors or officers of MISSISSIPPI acting solely in their capacities as such. Identification of executive officers of MISSISSIPPI. Dwight H. Evans President, Chief Executive Officer and Director Age 50 Served as Executive Officer since 3-27-95 H. E. Blakeslee Vice President - Customer Services and Marketing Age 58 Served as Executive Officer since 1-25-84 Andrew J. Dearman, III Vice President - Power Generation and Delivery Age 45 Served as Executive Officer since 4-23-97 Don E. Mason Vice President - External Affairs and Corporate Services Age 57 Served as Executive Officer since 7-27-83 Michael W. Southern Vice President, Secretary, Treasurer and Chief Financial Officer Age 46 Served as Executive Officer since 1-1-95 Each of the above is currently an executive officer of MISSISSIPPI, serving a term running from the last annual meeting of the directors (May 7, 1998) for one year until the next annual meeting or until his successor is elected and qualified. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as an officer, other than any arrangements or understandings with officers of MISSISSIPPI acting solely in their capacities as such. Identification of certain significant employees. None. Family relationships. None. III-9 Business experience. Dwight H. Evans - President and Chief Executive Officer since 1995. He previously served as Executive Vice President - External Affairs of GEORGIA from 1989 to 1995. Paul J. DeNicola - President and Chief Executive Officer of SCS effective 1994. Executive Vice President and Group Executive of SOUTHERN since 1991. Executive Vice President of SCS from 1991 through 1993. Director of SOUTHERN, SAVANNAH and GULF. Edwin E. Downer - Business consultant specializing in economic analysis, management controls and procedural studies, Meridian, Mississippi. Robert S. Gaddis - Chairman of the Advisory Board of Trustmark National Bank, Laurel, Mississippi. Aubrey K. Lucas - President Emeritus and Distinguished Professor of Higher Education at the University of Southern Mississippi, Hattiesburg, Mississippi. George A. Schloegel - President of Hancock Bank. President, Chief Executive Officer and Director of Hancock Bank Securities Corporation. Vice Chairman of Hancock Holding Company. Director of Hancock Bank - Mississippi and Hancock Bank - Louisiana. Philip J. Terrell - Superintendent of Pass Christian Public School District and adjunct professor at William Carey College. N. Eugene Warr - Retailer (Biloxi and Gulfport, Mississippi). Director of Coast Community Bank, formerly SouthTrust Bank of Mississippi, Biloxi, Mississippi. H. E. Blakeslee - Vice President - Customer Services and Marketing since 1984. Responsible for rate design, revenue forecasting, marketing, district operations, corporate compliance, distribution engineering, customer accounting, vehicle maintenance centers and customer call center. Andrew J. Dearman, III - Vice President - Power Generation and Delivery since 1997. Responsible for generating plants, environmental quality, fuel services, power generation technical services, transmission, system planning, bulk power contracts, system operations and control, system protection and real estate. He served as Vice President - Southern Division of ALABAMA from 1995 to May 1997, and Division Manager - Customer Service of ALABAMA from 1989 to 1995. Don E. Mason - Vice President- External Affairs and Corporate Services since 1983. Responsible for external affairs, corporate communications, security, risk management, economic development and general services, as well as the human resources function. Michael W. Southern - Vice President, Secretary, Treasurer and Chief Financial Officer since 1995. Responsible for accounting, secretary/treasury, corporate planning, procurement and information resources. He previously served as Director of Corporate Finance of SCS from 1994 to 1995 and Director of Financial Planning of SCS from 1990 to 1994. Involvement in certain legal proceedings. None. III-10 SAVANNAH Identification of directors of SAVANNAH. G. Edison Holland, Jr. President and Chief Executive Officer Age 46 Served as Director since 7-15-97 Archie H. Davis (1) Age 57 Served as Director since 2-18-97 Paul J. DeNicola (1) Age 50 Served as Director since 3-14-91 Walter D. Gnann (1) Age 63 Served as Director since 5-17-83 Robert B. Miller, III (1) Age 53 Served as Director since 5-17-83 Arnold M. Tenenbaum (1) Age 62 Served as Director since 5-17-77 (1) No position other than Director. Each of the above is currently a director of SAVANNAH, serving a term running from the last annual meeting of SAVANNAH's stockholder (May 19, 1998) for one year until the next annual meeting or until a successor is elected and qualified. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he/she was or is to be selected as a director or nominee, other than any arrangements or understandings with directors or officers of SAVANNAH acting solely in their capacities as such. Identification of executive officers of SAVANNAH. G. Edison Holland, Jr. President, Chief Executive Officer and Director Age 46 Served as Executive Officer since 7-15-97 W. Miles Greer Vice President - Customer Operations, Marketing and External Affairs Age 55 Served as Executive Officer since 11-20-85 Kirby R. Willis Vice President, Treasurer, Chief Financial Officer and Assistant Corporate Secretary Age 47 Served as Executive Officer since 1-1-94 Each of the above is currently an executive officer of SAVANNAH, serving a term running from the meeting of the directors held on July 21, 1998 for the ensuing year. There are no arrangements or understandings between any of the individuals listed above and any other person pursuant to which he was or is to be selected as an officer, other than any arrangements or understandings with officers of SAVANNAH acting solely in their capacities as such. Identification of certain significant employees. None. Family relationships. None. Business experience. G. Edison Holland, Jr. - Elected President and Chief Executive Officer in 1997. Vice President - Power Generation/Transmission and Corporate Counsel of GULF from 1995 to 1997. Served as a partner in the law firm of Beggs & Lane from 1979 to 1997. Director of SunTrust Bank of Savannah. Archie H. Davis - President and Chief Executive Officer of The Savannah Bancorp and The Savannah Bank, N.A., Savannah, Georgia. Member of the Board of Directors of Thomaston Mills, Thomaston, Georgia. Director of Bryan Bank & Trust. III-11 Paul J. DeNicola - President and Chief Executive Officer of SCS since 1994. Executive Vice President and Group Executive of SOUTHERN since 1991. Executive Vice President of SCS from 1991 through 1993. Director of SOUTHERN, GULF and MISSISSIPPI. Walter D. Gnann - President of Walt's TV, Appliance and Furniture Co., Inc., Springfield, Georgia. Past Chairman of the Development Authority of Effingham County, Georgia. Robert B. Miller, III - President of American Building Systems, Inc., Savannah, Georgia. Arnold M. Tenenbaum - President and Director of Chatham Steel Corporation. Director of First Union Bank of Georgia, First Union Bank of Savannah, Cerulean Corporation and Blue Cross/Blue Shield of Georgia. W. Miles Greer - Vice President - Customer Operations, Marketing and External Affairs since 1998. Responsible for marketing, customer services, transmission and distribution, engineering, system operation and external affairs. He previously served as Vice President of Marketing and Customer Service from 1994 to 1998. Kirby R. Willis - Vice President, Treasurer and Chief Financial Officer since 1994 and Assistant Corporate Secretary effective 1998. Responsible primarily for all accounting, financial, information resources, labor relations, corporate services, environmental and safety activities. He previously served as Treasurer, Controller and Assistant Secretary from 1991 to 1993. Involvement in certain legal proceedings. None Section 16(a) Beneficial Ownership Reporting Compliance. GEORGIA's Mr. Franklin filed one late report with the SEC representing one transaction in SOUTHERN common stock. III-12 Item 11. EXECUTIVE COMPENSATION Summary Compensation Tables. The following tables set forth information concerning any Chief Executive Officer and the four most highly compensated executive officers whose total annual salary and bonus exceeded $100,000 during 1998 for each of the operating affiliates (ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH). Key terms used in this Item will have the following meanings:- AME.........................Above-market earnings on deferred compensation ESP.........................Employee Savings Plan ESOP........................Employee Stock Ownership Plan SBP.........................Supplemental Benefit Plan ERISA.......................Employee Retirement Income Security Act
ALABAMA SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------ Elmer B. Harris President, Chief Executive 1998 545,102 192,751 19,060 29,411 249,971 30,180 Officer, 1997 500,700 101,002 20,453 35,648 247,224 30,172 Director 1996 480,310 72,697 7,112 31,608 439,508 25,068 Banks H. Farris 1998 275,822 32,631 8,530 11,473 178,829 14,764 Executive Vice 1997 247,170 37,500 7,218 13,513 155,313 14,379 President 1996 235,255 32,390 7,829 9,730 155,313 12,161 William B. Hutchins, III Executive Vice President, 1998 237,532 34,646 3,010 8,118 132,472 12,678 Chief Financial 1997 217,756 31,400 1,383 9,834 115,170 12,441 Officer 1996 209,213 28,806 3,029 8,654 115,169 10,853 See next page for footnotes.
III-13
ALABAMA SUMMARY COMPENSATION TABLE (Continued) ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Michael D. Garrett4 1998 221,731 25,966 12,389 7,800 105,866 11,558 Executive Vice 1997 - - - - - - President 1996 - - - - - - Earl B. Parsons, Jr.4 1998 213,075 26,758 7,285 7,282 114,911 11,249 Senior Vice President 1997 - - - - - - 1996 - - - - - - 1 Tax reimbursement by ALABAMA and certain personal benefits. 2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods ending December 31, 1996, 1997 and 1998,respectively. 3 ALABAMA contributions to the ESP, ESOP, and non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP) for the following:- Name ESP ESOP SBP Elmer B. Harris $5,792 $1,046 $23,342 Banks H. Farris 7,200 1,046 6,518 William B. Hutchins, III 7,200 1,046 4,432 Michael D. Garrett 6,093 1,046 4,419 Earl B. Parsons, Jr. 7,200 1,046 3,003 4 Messrs. Garrett and Parsons, Jr. were named executive officers effective April 24, 1998.
III-14
GEORGIA SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- H. Allen Franklin President, 1998 564,329 237,502 7,078 30,521 283,629 31,590 Chief Executive 1997 511,505 129,426 14,219 36,544 280,513 31,350 Officer, Director 1996 482,658 73,260 10,992 31,853 498,688 27,334 David M. Ratcliffe Executive Vice President, Treasurer, 1998 339,672 62,700 3,934 14,039 218,175 12,255 Chief Financial 1997 313,152 50,515 10,828 17,086 207,322 18,342 Officer 1996 347,985 39,465 8,446 15,179 207,322 16,889 Gene R. Hodges 1998 244,284 42,595 4,543 8,317 132,472 13,087 Executive 1997 228,336 39,058 5,544 10,271 126,075 13,111 Vice President 1996 221,708 26,209 1,783 9,214 126,075 12,193 Warren Y. Jobe Executive 1998 249,314 37,434 7,804 10,275 132,472 12,660 Vice President, 1997 238,948 39,862 98,870 10,483 126,075 13,408 Director 1996 227,496 26,749 4,308 9,404 126,075 12,476 Robert H. Haubein, Jr. 1998 239,448 35,683 1,922 8,175 132,472 13,007 Senior Vice 1997 220,358 35,683 657 9,952 115,170 11,981 President 1996 211,010 29,681 2,081 8,757 115,169 11,740 1 Tax reimbursement by GEORGIA on certain personal benefits including membership fees of $94,429 in 1997 for Mr. Jobe. 2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods ending December 31, 1996, 1997 and 1998, respectively. 3 GEORGIA contributions to the ESP, ESOP, and non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP) for the following:- Name ESP ESOP SBP H. Allen Franklin $7,200 $1,046 $23,344 David M. Ratcliffe 7,200 1,046 4,009 Gene R. Hodges 7,200 1,046 4,841 Warren Y. Jobe 6,450 1,046 5,164 Robert H. Haubein, Jr. 6,450 1,046 5,511
III-15
GULF SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Travis J. Bowden President, 1998 329,280 35,121 3,839 13,583 218,175 18,068 Chief Executive 1997 306,584 33,933 2,842 16,694 207,322 17,888 Officer, Director 1996 297,685 29,950 1,560 14,975 207,322 14,950 Arlan E. Scarbrough 1998 196,661 18,071 3,253 6,721 96,594 10,218 Vice President 1997 180,642 18,212 1,440 8,142 84,048 10,235 1996 173,719 17,512 1,514 7,234 84,047 9,420 John E. Hodges, Jr. 1998 192,765 17,680 915 6,575 96,594 10,014 Vice President 1997 178,428 17,989 2,418 8,042 91,977 10,185 1996 171,688 17,297 1,415 7,145 91,977 9,405 Francis M. 1998 175,719 16,147 240 6,005 96,594 9,329 Fisher, Jr. 1997 160,783 16,274 479 7,275 84,048 9,182 Vice President 1996 151,236 15,352 459 5,674 84,047 8,177 Robert G. Moore4 1998 159,332 18,626 525 4,881 72,767 8,325 Vice President 1997 149,926 23,474 - 4,741 46,551 7,550 1996 - - - - - - 1 Tax reimbursement by GULF on certain personal benefits. 2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods ending December 31, 1996, 1997 and 1998, respectively. 3 GULF contributions to the ESP, ESOP, and non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP) for the following:- Name ESP ESOP SBP Travis J. Bowden $6,450 $1,046 $10,572 Arlan E. Scarbrough 6,448 1,046 2,724 John E. Hodges, Jr. 6,698 1,046 2,270 Francis M. Fisher, Jr. 7,200 1,046 1,083 Robert G. Moore 6,927 1,046 352 4 Mr. Moore was named an executive officer effective July 25, 1997.
III-16
MISSISSIPPI SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- Dwight H. Evans President, Chief 1998 283,195 42,603 5,051 11,693 218,175 15,291 Executive 1997 262,678 39,643 3,830 14,303 126,075 15,025 Officer, Director 1996 253,006 35,923 3,519 12,830 126,075 13,824 H. E. Blakeslee 1998 207,416 36,202 47 7,068 96,594 10,979 Vice President 1997 192,029 38,863 697 8,687 91,977 10,991 1996 190,429 25,664 224 7,572 91,977 9,885 Don E. Mason 1998 203,234 29,560 4,497 6,926 96,594 10,757 Vice President 1997 188,126 41,889 839 8,512 84,048 10,675 1996 186,670 25,148 125 7,420 84,047 9,587 Michael W. Southern Vice President Chief Financial 1998 174,334 34,130 - 5,997 83,087 8,978 Officer, Secretary, 1997 155,151 31,406 1,590 6,281 65,768 8,757 Treasurer 1996 155,027 20,740 2,841 5,475 65,768 7,865 Andrew J. Dearman, III4 1998 159,713 41,031 600 4,893 83,087 8,343 Vice President 1997 141,393 21,008 2,083 5,871 42,903 21,354 1996 - - - - - - 1 Tax reimbursement by MISSISSIPPI on certain personal benefits. 2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods ending December 31, 1996, 1997 and 1998, respectively. 3 MISSISSIPPI contributions to the ESP, ESOP, and non-pension related accruals under the SBP (ERISA excess plan under which accruals are made to offset Internal Revenue Code imposed limitations under the ESP and ESOP) for the following:- Name ESP ESOP SBP Dwight H. Evans $6,450 $1,046 $7,795 H. E. Blakeslee 6,093 1,046 3,840 Don E. Mason 5,992 1,046 3,719 Michael W. Southern 6,879 1,046 1,053 Andrew J. Dearman, III 6,936 1,046 361 In 1997, Mr. Dearman received a one-time lump-sum payment of $13,591, given in connection with his appointment to his current position. 4 Mr. Dearman was named an executive officer effective April 23, 1997.
III-17
SAVANNAH SUMMARY COMPENSATION TABLE ANNUAL COMPENSATION LONG-TERM COMPENSATION Number of Securities Long- Name Underlying Term and Other Annual Stock Incentive All Other Principal Compensation Options Payouts Compensation Position Year Salary($) Bonus($) ($)1 (Shares) ($)2 ($)3 - - - - - - - ------------------------------------------------------------------------------------------------------------------------- G. Edison Holland, Jr.4 President, 1998 233,330 26,019 17,309 7,951 128,608 8,246 Chief Executive 1997 202,413 26,231 3,046 8,640 91,977 49,892 Officer, Director 1996 184,359 18,584 2,969 7,677 91,977 9,940 W. Miles Greer 1998 160,207 16,054 13 4,901 69,000 13,179 Vice President 1997 138,643 16,294 805 4,924 60,636 10,740 1996 131,203 16,225 322 4,261 60,636 9,631 Kirby R. Willis Vice President, 1998 155,236 15,554 13 4,748 69,000 10,581 Chief Financial 1997 134,794 15,915 182 4,809 60,636 9,322 Officer, Treasurer 1996 122,110 15,505 674 3,924 60,636 8,765 1 Tax reimbursement by SAVANNAH on certain personal benefits, including membership fees of $11,669 for Mr. Holland, Jr. in 1998. 2 Payouts made in 1997, 1998 and 1999 for the four-year performance periods ending December 31, 1996, 1997 and 1998, respectively. 3 SAVANNAH contributions to the ESP, under Section 401(k) of the Internal Revenue Code, ESOP, and AME for the following:- Name ESP ESOP AME G. Edison Holland, Jr. $7,200 $1,046 $ - W. Miles Greer 5,902 1,046 6,231 Kirby R. Willis 6,483 1,046 3,052 In 1997, Mr. Holland received a one-time lump-sum payment of $38,654, given in connection with his appointment to his current position. 4 Mr. Holland became president on July 1, 1997. He was previously an executive officer at GULF.
III-18
STOCK OPTION GRANTS IN 1998 Stock Option Grants. The following table sets forth all stock option grants to the named executive officers of each operating subsidiary during the year ending December 31, 1998. Individual Grants Grant Date Value # of % of Total Securities Options Exercise Underlying Granted to or Options Employees in Base Price Expiration Grant Date Name Granted1 Fiscal Year2 ($/Sh)1 Date1 Present Value($)3 ----------------------------------------------------------------------------------------------------------- ALABAMA Elmer B. Harris 29,411 1.8 27.03125 05/01/2007 167,349 Banks H. Farris 11,473 0.7 27.03125 06/01/2003 65,281 William B. Hutchins, III 8,118 0.5 27.03125 07/20/2008 46,191 Michael D. Garrett 7,800 0.5 27.03125 07/20/2008 44,382 Earl B. Parsons, Jr. 7,282 0.4 27.03125 06/01/2006 41,435 GEORGIA H. Allen Franklin 30,521 1.8 27.03125 07/20/2008 173,664 David M. Ratcliffe 14,039 0.9 27.03125 07/20/2008 79,882 Gene R. Hodges 8,317 0.5 27.03125 04/01/2006 47,324 Warren Y. Jobe 10,275 0.6 27.03125 07/20/2008 58,465 Robert H. Haubein, Jr. 8,175 0.5 27.03125 02/01/2008 46,516 GULF Travis J. Bowden 13,583 0.8 27.03125 09/01/2006 77,287 Arlan E. Scarbrough 6,721 0.4 27.03125 11/01/2004 38,242 John E. Hodges, Jr. 6,575 0.4 27.03125 07/20/2008 37,412 Francis M. Fisher, Jr. 6,005 0.4 27.03125 07/20/2008 34,168 Robert G. Moore 4,881 0.3 27.03125 07/20/2008 27,773 See next page for footnotes.
III-19
STOCK OPTION GRANTS IN 1998 Individual Grants Grant Date Value # of % of Total Securities Options Exercise Underlying Granted to or Options Employees in Base Price Expiration Grant Date Name Granted1 Fiscal Year2 ($/Sh)1 Date1 Present Value($)3 ------------------------------------------------------------------------------------------------------------ MISSISSIPPI Dwight H. Evans 11,693 0.7 27.03125 07/20/2008 66,533 H. E. Blakeslee 7,068 0.4 27.03125 07/01/2008 40,217 Don E. Mason 6,926 0.4 27.03125 07/20/2008 39,409 Michael W. Southern 5,997 0.4 27.03125 07/20/2008 34,123 Andrew J. Dearman, III 4,893 0.3 27.03125 07/20/2008 27,841 SAVANNAH G. Edison Holland, Jr. 7,951 0.5 27.03125 07/20/2008 45,241 W. Miles Greer 4,901 0.3 27.03125 07/20/2008 27,887 Kirby R. Willis 4,748 0.3 27.03125 07/20/2008 27,016 1 Performance Stock Plan grants were made on July 20, 1998, and vest 25% per year on the anniversary date of the grant. Grants fully vest upon termination incident to death, disability, or retirement. The exercise price is the average of the high and low fair market value of SOUTHERN's common stock on the date granted. In accordance with the terms of the Performance Stock Plan, Mr. Blakeslee's unexercised options expire on July 1, 2008, three years after his normal retirement date; Mr. Bowden's unexercised options expire on September 1, 2006, three years after his normal retirement date; Mr. Farris' unexercised options expire on June 1, 2003, three years after his normal retirement date; Mr. Harris' unexercised options expire on May 1, 2007, three years after his normal retirement date; Mr. Haubein, Jr.'s unexercised options expire on February 1, 2008, three years after his normal retirement date; Mr. Gene R. Hodges' unexercised options expire on April 1, 2006, three years after his normal retirement date; Mr. Parsons Jr.'s unexercised options expire on June 1, 2006, three years after his normal retirement date; and Mr. Scarbrough's unexercised options expire on November 1, 2004, three years after his normal retirement date. 2 A total of 1,659,519 stock options were granted in 1998 to key executives participating in SOUTHERN's Performance Stock Plan. 3 Based on the Black-Scholes option valuation model. The actual value, if any, an executive officer may realize ultimately depends on the market value of SOUTHERN's common stock at a future date. This valuation is provided pursuant to SEC disclosure rules. There is no assurance that the value realized will be at or near the value estimated by the Black-Scholes model. Significant assumptions used to calculate this value: price volatility - 19.16%; risk-free rate of return - 5.46%; dividend opportunity - 50%; time to exercise - 10 years; reductions for probability of forfeiture before vesting - 9.61%; and reductions for probability of forfeiture before expiration - 15.51%. These assumptions reflect the effects of cash dividend equivalents paid to participants under the Performance Dividend Plan assuming targets are met.
III-20
AGGREGATED STOCK OPTION EXERCISES IN 1998 AND YEAR-END OPTION VALUES Aggregated Stock Option Exercises. The following table sets forth information concerning options exercised during the year ending December 31, 1998, by the named executive officers and the value of unexercised options held by them as of December 31, 1998. Number of Securities Value of Underlying Unexercised Unexercised In-the-Money Options at Options at Fiscal Fiscal Year-End (#) Year-End($)1 Shares Acquired Value Exercisable/ Exercisable/ Name on Exercise (#) Realized($)2 Unexercisable Unexercisable - - - - - - - -------------------------------------------------------------------------------------------------------------- ALABAMA Elmer B. Harris - - 183,510/79,994 1,929,365/424,248 Banks H. Farris 13,154 99,117 24,020/28,937 181,514/150,304 William B. Hutchins, III - - 32,521/22,034 279,966/116,806 Michael D. Garrett 13,165 77,775 2,019/19,246 15,773/98,358 Earl B. Parsons, Jr. 6,005 31,460 6,188/19,842 44,155/105,299 GEORGIA H. Allen Franklin 3,560 56,404 149,760/81,846 1,480,720/432,104 David M. Ratcliffe - - 69,668/38,325 708,769/203,513 Gene R. Hodges 8,329 79,692 26,842/23,007 215,427/122,705 Warren Y. Jobe - - 39,645/25,268 358,857/128,865 Robert H. Haubein, Jr. 6,684 79,581 26,696/22,236 215,611/117,962 GULF Travis J. Bowden 81,334 969,563 0/37,458 0/199,560 Arlan E. Scarbrough 11,200 82,590 0/18,295 0/97,050 John E. Hodges, Jr. 10,519 117,035 15,640/18,007 114,024/95,730 Francis M. Fisher, Jr. 8,857 78,155 0/15,700 0/82,450 Robert G. Moore - - 6,368/11,522 45,011/57,844 See next page for footnotes.
III-21
AGGREGATED STOCK OPTION EXERCISES IN 1998 AND YEAR-END OPTION VALUES Number of Securities Value of Underlying Unexercised Unexercised In-the-Money Options at Options at Fiscal Fiscal Year-End (#) Year-End($)1 Shares Acquired Value Exercisable/ Exercisable/ Name on Exercise (#) Realized($)2 Unexercisable Unexercisable - - - - - - - -------------------------------------------------------------------------------------------------------------- MISSISSIPPI Dwight H. Evans 2,455 37,055 40,274/31,458 341,070/165,956 H. E. Blakeslee 5,284 60,270 21,932/19,270 175,814/102,347 Don E. Mason - - 11,421/18,882 80,640/100,284 Michael W. Southern - - 7,942/14,658 55,894/74,599 Andrew J. Dearman, III - - 6,737/12,448 47,781/64,906 SAVANNAH G. Edison Holland, Jr. - - 30,209/20,233 261,280/104,649 W. Miles Greer - - 6,655/11,824 47,029/59,900 Kirby R. Willis - - 6,192/11,327 43,806/57,231 1 This represents the excess of the fair market value of SOUTHERN's common stock of $29.0625 per share, as of December 31, 1998, above the exercise price of the options. One column reports the "value" of options that are vested and therefore could be exercised; the other the "value" of options that are not vested and therefore could not be exercised as of December 31, 1998. 2 The "Value Realized" is ordinary income, before taxes, and represents the amount equal to the excess of the fair market value of the shares at the time of exercise over the exercise price.
III-22
LONG-TERM INCENTIVE PLANS - AWARDS IN 1998 Long-Term Incentive Plans. The following table sets forth the long-term incentive plan awards made to the named executive officers for the performance period January 1, 1998 through December 31, 2001. Estimated Future Payouts under Non-Stock Price-Based Plans Performance or Other Period Number of Until Maturation Threshold Target Maximum Name Units (#)1 or Payout ($)2 ($)2 ($)2 - - - - - - - ---------------------------------------------------------------------------------------------------------------- ALABAMA Elmer B. Harris 291,502 4 years 145,751 291,502 583,004 Banks H. Farris 120,832 4 years 60,416 120,832 241,664 William B. Hutchins, III 89,508 4 years 44,754 89,508 179,017 Michael D. Garrett 89,508 4 years 44,754 89,508 179,017 Earl B. Parsons, Jr. 89,508 4 years 44,754 89,508 179,017 GEORGIA H. Allen Franklin 330,751 4 years 165,376 330,751 661,502 David M. Ratcliffe 147,416 4 years 73,708 147,416 294,832 Gene R. Hodges 89,508 4 years 44,754 89,508 179,017 Warren Y. Jobe 89,508 4 years 44,754 89,508 179,017 Robert H. Haubein, Jr. 89,508 4 years 44,754 89,508 179,017 GULF Travis J. Bowden 147,416 4 years 73,708 147,416 294,832 Arlan E. Scarbrough 65,265 4 years 32,632 65,265 130,530 John E. Hodges, Jr. 65,265 4 years 32,632 65,265 130,530 Francis M. Fisher, Jr. 65,265 4 years 32,632 65,265 130,530 Robert G. Moore 65,265 4 years 32,632 65,265 130,530 See next page for footnotes.
III-23
LONG-TERM INCENTIVE PLANS - AWARDS IN 1998 Estimated Future Payouts under Non-Stock Price-Based Plans Performance or Other Period Number of Until Maturation Threshold Target Maximum Name Units (#)1 or Payout ($)2 ($)2 ($)2 - - - - - - - ------------------------------------------------------------------------------------------------------------------ MISSISSIPPI Dwight H. Evans 147,416 4 years 73,708 147,416 294,832 H. E. Blakeslee 65,265 4 years 32,632 65,265 130,530 Don E. Mason 65,265 4 years 32,632 65,265 130,530 Michael W. Southern 65,265 4 years 32,632 65,265 130,530 Andrew J. Dearman, III 65,265 4 years 32,632 65,265 130,530 SAVANNAH G. Edison Holland, Jr. 107,637 4 years 53,819 107,637 215,274 W. Miles Greer 46,620 4 years 23,310 46,620 93,240 Kirby R. Willis 46,620 4 years 23,310 46,620 93,240 1 A performance unit is a method of assigning a dollar value to a performance award opportunity. Under the Executive Productivity Improvement Plan, Messrs. Harris and Franklin's number of units are based on the beginning of the period base salary mid-points. All other executive officers listed in this table are participants in the Productivity Improvement Plan of SOUTHERN, the number of units granted to these named executive officers is based on the weighted average of the base salary mid-points as of December 31 for each calendar year in the four-year computation period. No awards are paid unless the participant remains employed by the company through the end of the performance period. 2 The threshold, target and maximum value of a unit is $0.50, $1.00, and $2.00, respectively, and can vary based on SOUTHERN's return on common equity and total shareholder return relative to selected groups of electric and gas utilities. If certain minimum performance relative to the selected groups is not achieved, there will be no payout; nor is there a payout if the current earnings of SOUTHERN are not sufficient to fund the dividend rate paid in the last calendar year. The Plan provides that in the discretion of the committee, extraordinary income may be excluded for purposes of calculating the amount available for the payment of awards. All awards are payable in cash at the end of the performance period.
III-24 DEFINED BENEFIT OR ACTUARIAL PLAN DISCLOSURE Pension Plan Table. The following table sets forth the estimated combined annual pension benefits under the Pension, Supplemental Defined Benefit, and Supplemental Executive Retirement Plans in effect during 1998 for the named executives at ALABAMA, GEORGIA, GULF and MISSISSIPPI and Mr. Holland at SAVANNAH. Employee compensation covered by the Pension, Supplemental Benefit, and Supplemental Executive Retirement Plans for pension purposes is limited to the average of the highest three of the final 10 years' compensation -- base salary plus the excess of annual and long-term incentive compensation over 25 percent of base salary (reported under column titled "Salary", "Bonus", and "Long-Term Incentive Payouts" in the Summary Compensation Tables on pages III-13 through III-18). The amounts shown in the table were calculated according to the final average pay formula and are based on a single life annuity without reduction for joint and survivor annuities (although married employees are required to have their pension benefits paid in one of various joint and survivor annuity forms, unless the employee elects otherwise with the spouse's consent) or computation of the Social Security offset which would apply in most cases. This offset amounts to one-half of the estimated Social Security benefit (primary insurance amount) in excess of $3,900 per year times the number of years of accredited service, divided by the total possible years of accredited service to normal retirement age.
Years of Accredited Service Remuneration 15 20 25 30 35 40 $ 100,000 $ 25,500 $ 34,000 $ 42,500 $ 51,000 $ 59,500 $ 68,000 300,000 76,500 102,000 127,500 153,000 178,500 204,000 500,000 127,500 170,000 212,500 255,000 297,500 340,000 700,000 178,500 238,000 297,500 357,000 416,500 476,000 900,000 229,500 306,000 382,500 459,000 535,500 612,000 1,100,000 280,500 374,000 467,500 561,000 654,500 748,000 1,300,000 331,500 442,000 552,500 663,000 773,500 884,000
As of December 31, 1998, the applicable compensation levels and years of accredited service are presented in the following tables: ALABAMA Compensation Accredited Name Level Years of Service Elmer B. Harris $844,132 39 Banks H. Farris 391,968 39 William B. Hutchins, III 319,544 32 Michael D. Garrett 268,316 30 Earl B. Parsons, Jr. 269,744 37 III-25 GEORGIA Compensation Accredited Name Level Years of Service H. Allen Franklin $920,468 27 David M. Ratcliffe 506,316 27 Gene R. Hodges 342,084 34 Warren Y. Jobe1 343,808 34 Robert H. Haubein, Jr. 326,044 31 GULF Compensation Accredited Name Level Years of Service Travis J. Bowden2 $481,924 32 Arlan E. Scarbrough 244,832 35 John E. Hodges, Jr. 248,136 32 Francis M. Fisher, Jr. 227,144 27 Robert G. Moore 183,044 25 MISSISSIPPI Compensation Accredited Name Level Years of Service Dwight H. Evans $398,224 27 H. E. Blakeslee 274,248 33 Don E. Mason 264,564 32 Michael W. Southern 221,140 23 Andrew J. Dearman, III 185,060 23 SAVANNAH Compensation Accredited Name Level Years of Service G. Edison Holland, Jr.3 $280,560 15 W. Miles Greer 143,858 14 Kirby R. Willis 137,972 24 - - - - - - - --------------------------- 1 The number of accredited years of service includes 7 years and 8 months credited to Mr. Jobe pursuant to a supplemental pension agreement. 2 The number of accredited years of service includes 10 years credited to Mr. Bowden pursuant to a supplemental pension agreement. 3 The number of accredited years of service includes 9 years and 3 months credited to Mr. Holland pursuant to a supplemental pension agreement. III-26 Effective January 1, 1998, SAVANNAH merged its pension plan into SOUTHERN's Pension Plan. SAVANNAH also has in effect a supplemental executive retirement plan for certain of its executive employees. The plan is designed to provide participants with a supplemental retirement benefit, which, in conjunction with social security and benefits under SOUTHERN's qualified pension plan, will equal 70 percent of the highest three of the final 10 years' average annual earnings (excluding incentive compensation). The following table sets forth the estimated combined annual pension benefits under SOUTHERN's pension and SAVANNAH's supplemental executive retirement plans in effect during 1998 which are payable to SAVANNAH's named executives, except Mr.Holland who participates in the plans described on page III-25, upon retirement at the normal retirement age after designated periods of accredited service and at a specified compensation level. Years of Accredited Service Remuneration 15 25 35 $ 90,000 $ 63,000 $ 63,000 $ 63,000 120,000 84,000 84,000 84,000 150,000 105,000 105,000 105,000 180,000 126,000 126,000 126,000 210,000 147,000 147,000 147,000 260,000 182,000 182,000 182,000 280,000 196,000 196,000 196,000 300,000 210,000 210,000 210,000 III-27 Compensation of Directors. Standard Arrangements. The following table presents compensation paid to the directors, during 1998 for service as a member of the board of directors and any board committee(s), except that employee directors received no fees or compensation for service as a member of the board of directors or any board committee. All or a portion of these fees payable in cash may be deferred under the Deferred Compensation Plan until membership on the board is terminated or may be payable in SOUTHERN common stock at the election of the director.
ALABAMA GEORGIA GULF MISSISSIPPI SAVANNAH Cash Retainer Fee $17,000 $20,000 $10,000 $10,000 $10,000 Stock Retainer Fee $3,000 $3,000 $2,000 $2,000 $2,000 Meeting Fee 900 900 750 750 750 Committees: Audit 900 900 750 750 750 Compensation 900 900 750 750 750 Executive 900 900 - - 750 Finance - 900 - 750 - Nominating 900 - - - - Nuclear Safety 900 - - - - Nuclear Operations Overview - 1,800 - - -
Effective January 1, 1997, the Outside Directors Pension Plan (the "Plan") was terminated and benefits payable under the Plan were frozen. Non-employee directors serving as of January 1, 1997, were given a one-time election to receive a Plan benefit buy-out equal to the actuarial present value of future Plan benefits or receive benefits under the terms of the Plan at the annual retainer rate in effect on December 31, 1996. Directors who elected to receive the benefit buy-out were required to defer receipt of that amount under the Deferred Compensation Plan until termination from board membership. Directors who elected to continue to participate under the terms of the Plan are entitled to benefits upon retirement from the board on the retirement date designated in the respective companies' by-laws. The annual benefit payable is based upon length of service and varies from 75 percent of the annual retainer in effect on December 31, 1996, if the participant has at least 60 months of service on the board of one or more system companies, to 100 percent if the participant has at least 120 months of such service. Payments will continue for the greater of the lifetime of the participant or 10 years. Other Arrangements. No director received other compensation for services as a director during the year ending December 31, 1998 in addition to or in lieu of that specified by the standard arrangements specified above. III-28 Employment Contracts and Termination of Employment and Change in Control Arrangements. Each registrant has adopted SOUTHERN's Change in Control Plan which is applicable to certain of its officers, and has entered into individual change in control agreements with its most highly compensated executive officers. If an executive is involuntarily terminated, other than for cause, within two years following a change in control of SOUTHERN the agreements provide for: o lump sum payment of two or three times annual compensation, o up to five years' coverage under group health and life insurance plans, o immediate vesting of all stock options and stock appreciation rights previously granted, o payment of any accrued long-term and short-term bonuses and dividend equivalents, and o payment of any excise tax liability incurred as a result of payments made under the agreement. A change in control is defined under the agreements as: o acquisition of at least 20 percent of the SOUTHERN's stock, o a change in the majority of the members of the SOUTHERN's board of directors, o a merger or other business combination that results in SOUTHERN's shareholders immediately before the merger owning less than 65 percent of the voting power after the merger, or o a sale of substantially all the assets of SOUTHERN. If a change in control affects only a subsidiary of SOUTHERN, these payments would only be made to executives of the affected subsidiary who are involuntarily terminated as a result of that change in control. SOUTHERN also has amended its short- and long-term incentive plans to provide for pro-rata payments at not less than target-level performance if a change in control occurs and the plans are not continued or replaced with comparable plans. On February 28, 1998, SOUTHERN and GEORGIA entered into a Deferred Compensation Agreement with Mr. Franklin. On the fifth anniversary of the Agreement, if Mr. Franklin is still employed by SOUTHERN or one of its subsidiaries, he will receive the cash value of the number of shares of common stock that could have been purchased for $500,000 on February 28, 1998, and on which dividends were reinvested throughout the five-year period. If certain performance goals are met, Mr. Franklin also will receive the estimated income tax expense on the compensation. Mr. Franklin may elect to defer receipt of the award until termination of employment. SOUTHERN and GEORGIA entered into a Deferred Compensation Agreement with Mr. Jobe. Mr. Jobe becomes eligible for benefits under the terms of this Agreement if one of the following Eligibility Events occurs: (1) Mr. Jobe terminates employment with SOUTHERN or one of its subsidiaries on or after attaining age sixty-two and enters into a release as provided by the Agreement; or (2) Mr. Jobe, after entering into this Agreement but while employed by SOUTHERN or one of its subsidiaries, becomes totally and permanently disabled as determined by a medical doctor selected by SOUTHERN and enters into a release as provided by the Agreement. Upon the occurrence of an eligibility event as detailed in item (1) above, SOUTHERN agrees to pay Mr. Jobe a lump sum amount equal to two times base pay in effect at the time of the eligibility event; a lump sum amount equal to the present value of the monthly Early Retirement Reduction Percentage of Employee's Accrued Retirement Income under the pension plan, plus an amount equal to the reduction of Mr. Jobe's monthly Supplemental Employee Retirement Plan benefit; and consulting fees for services provided by Mr. Jobe as an independent contractor. Upon the occurrence of an eligibility event as detailed in item (2) above, SOUTHERN agrees to pay Mr. Jobe a lump sum amount III-29 Employment Contracts and Termination of Employment and Change in Control Arrangements. (continued) equal to two times base pay in effect at the time of the eligibility event; and a lump sum amount equal to the present value of the monthly Early Retirement Reduction Percentage of Employee's Accrued Retirement Income under the pension plan, plus an amount equal to the reduction of Mr. Jobe's monthly Supplemental Employee Retirement Plan benefit. Report on Repricing of Options. None. Compensation Committee Interlocks and Insider Participation. None. III-30 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Security Ownership of Certain Beneficial Owners. SOUTHERN is the beneficial owner of 100% of the outstanding common stock of registrants: ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH.
Amount and Name and Address Nature of Percent of Beneficial Beneficial of Title of Class Owner Ownership Class Common Stock The Southern Company 100% 270 Peachtree Street, N.W. Atlanta, Georgia 30303 Registrants: ALABAMA 5,608,955 GEORGIA 7,761,500 GULF 992,717 MISSISSIPPI 1,121,000 SAVANNAH 10,844,635
Security Ownership of Management. The following table shows the number of shares of SOUTHERN common stock and operating subsidiary preferred stock owned by the directors, nominees and executive officers as of December 31, 1998. It is based on information furnished by the directors, nominees and executive officers. The shares owned by all directors, nominees and executive officers as a group constitute less than one percent of the total number of shares of the respective classes outstanding on December 31, 1998. Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1) (2) ALABAMA Whit Armstrong SOUTHERN Common 16,949 David J. Cooper, Sr. SOUTHERN Common 379 A. William Dahlberg SOUTHERN Common 355,291 Peter V. Gregerson, Sr. SOUTHERN Common 575 Elmer B. Harris SOUTHERN Common 222,887 Carl E. Jones, Jr. SOUTHERN Common 11,403 Patricia M. King SOUTHERN Common 177 James K. Lowder SOUTHERN Common 5,47 III-31 Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1)(2) Thomas C. Meredith SOUTHERN Common 18 William V. Muse SOUTHERN Common 575 John T. Porter SOUTHERN Common 1,008 Robert D. Powers SOUTHERN Common 575 Andreas Renschler SOUTHERN Common 410 C. Dowd Ritter SOUTHERN Common 177 William J. Rushton, III SOUTHERN Common 8,148 James H. Sanford SOUTHERN Common 511 John C. Webb, IV SOUTHERN Common 19,572 Banks H. Farris SOUTHERN Common 28,112 Michael D. Garrett SOUTHERN Common 8,087 William B. Hutchins, III SOUTHERN Common 48,307 Earl B. Parsons Jr. SOUTHERN Common 10,895 The directors, nominees, and executive officers as a group SOUTHERN Common 728,635 GEORGIA Daniel P. Amos SOUTHERN Common 168 Juanita P. Baranco SOUTHERN Common 168 A. William Dahlberg SOUTHERN Common 355,291 W. A. Fickling, Jr. SOUTHERN Common 1,069 III-32 Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned(1)(2) H. Allen Franklin SOUTHERN Common 177,239 L. G. Hardman III SOUTHERN Common 16,062 Warren Y. Jobe SOUTHERN Common 70,034 GEORGIA Preferred 200 James R. Lientz, Jr. SOUTHERN Common 946 G. Joseph Prendergast SOUTHERN Common 961 Herman J. Russell SOUTHERN Common 10,710 Gloria M. Shatto SOUTHERN Common 18,830 GEORGIA Preferred 1,200 W. J. Vereen SOUTHERN Common 496 Carl Ware SOUTHERN Common 646 William C. Archer, III SOUTHERN Common 17,500 Robert H. Haubein, Jr. SOUTHERN Common 29,002 Gene R. Hodges SOUTHERN Common 43,245 David M. Ratcliffe SOUTHERN Common 79,206 The directors, nominees and executive officers as a group SOUTHERN Common 917,255 GEORGIA Preferred 1,650 III-33 Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1) (2) GULF Travis J. Bowden SOUTHERN Common 34,889 Paul J. DeNicola SOUTHERN Common 139,642 Fred C. Donovan, Sr. SOUTHERN Common 637 W. Deck Hull, Jr. SOUTHERN Common 2,549 Joseph K. Tannehill SOUTHERN Common 4,439 Barbara H. Thames SOUTHERN Common 160 Francis M. Fisher, Jr. SOUTHERN Common 6,604 John E. Hodges, Jr. SOUTHERN Common 37,925 Robert G. Moore SOUTHERN Common 20,729 Arlan E. Scarbrough SOUTHERN Common 20,039 The directors, nominees and executive officers as a group SOUTHERN Common 267,502 MISSISSIPPI Paul J. DeNicola SOUTHERN Common 139,642 Edwin E. Downer SOUTHERN Common 5,365 Dwight H. Evans SOUTHERN Common 62,158 GEORGIA Preferred 400 MISSISSIPPI Preferred 200 SOUTHERN Preferred 200 Robert S. Gaddis SOUTHERN Common 3,183 III-34 Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1) (2) Aubrey K. Lucas SOUTHERN Common 1,940 George A. Schloegel SOUTHERN Common 485 Philip J. Terrell SOUTHERN Common 1,103 N. Eugene Warr SOUTHERN Common 688 H. E. Blakeslee SOUTHERN Common 26,201 Andrew J. Dearman, III SOUTHERN Common 11,674 Don E. Mason SOUTHERN Common 34,258 Michael W. Southern SOUTHERN Common 7,430 The directors, nominees and executive officers as a group SOUTHERN Common 294,125 GEORGIA Preferred 400 MISSISSIPPI Preferred 233 SOUTHERN Preferred 200 SAVANNAH Archie H. Davis SOUTHERN Common 190 Paul J. DeNicola SOUTHERN Common 139,642 Walter D. Gnann SOUTHERN Common 1,833 G. Edison Holland SOUTHERN Common 32,589 Robert B. Miller, III SOUTHERN Common 2,203 Arnold M. Tenenbaum SOUTHERN Common 793 III-35 Name of Directors, Nominees and Number of Shares Executive Officers Title of Class Beneficially Owned (1) (2) W. Miles Greer SOUTHERN Common 9,599 Kirby R. Willis SOUTHERN Common 10,996 The directors, nominees and executive officers as a group SOUTHERN Common 185,772 Changes in control. SOUTHERN and the operating affiliates know of no arrangements which may at a subsequent date result in any change in control. (1) As used in this table, "beneficial ownership" means the sole or shared power to vote, or to direct the voting of, a security and/or investment power with respect to a security (i.e., the power to dispose of, or to direct the disposition of, a security). (2) The shares shown include shares of SOUTHERN common stock of which certain directors and executive officers have the right to acquire beneficial ownership within 60 days pursuant to the Executive Stock Plan, as follows: Mr. Blakeslee, 21,932 shares; Mr. Dahlberg, 289,787 shares; Mr. DeNicola, 103,158 shares; Mr. Evans, 40,274 shares; Mr. Farris, 24,020 shares; Mr. Franklin, 149,760 shares; Mr. Greer, 6,655 shares; Mr. Harris, 183,510 shares; Mr. Haubein, 26,696 shares; Mr. G. R. Hodges, 26,842 shares; Mr. J. E. Hodges, 15,640 shares; Mr. Holland, 30,209 shares; Mr. Hutchins, 32,521 shares; Mr. Jobe, 39,645 shares; Mr. Mason, 11,421 shares; Mr. Southern, 7,942 shares, and Mr. Willis, 6,192 shares. Also included are shares of SOUTHERN common stock held by the spouses of the following directors: Mr. Bowden, 500 shares; Mr. DeNicola, 12,072 shares; Mr. Gaddis; 1,200 shares; Mr. Hardman, 100 shares; Mr. Harris, 310 shares, and Dr. Shatto, 14,113 shares. Also included are shares of common stock held in the Southern Company Deferred Stock Trust of which certain directors have the power to direct the voting, as follows: Mr. Hardman, 6,714 shares and Dr. Shatto, 799 shares. Also included are 1,200 shares of GEORGIA preferred stock held by Dr. Shatto's spouse. III-36 Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS ALABAMA Transactions with management and others. Mr. Whit Armstrong is President, Chairman and Chief Executive Officer of The Citizens Bank, Enterprise, Alabama; Mr. Carl E. Jones, Jr. is President and Chief Executive Officer of Regions Financial Corporation, Birmingham, Alabama; Mr. Wallace D. Malone is Chairman and Chief Executive Officer of SouthTrust Corporation, Birmingham, Alabama. Mr. C. Dowd Ritter is Chairman, President, Chief Executive Officer and Director of AmSouth Bancorporation and AmSouth Bank, Birmingham, Alabama. During 1998, these banks furnished a number of regular banking services in the ordinary course of business to ALABAMA. ALABAMA intends to maintain normal banking relations with all the aforesaid banks in the future. Certain business relationships. None. Indebtedness of management. None. Transactions with promoters. None. GEORGIA Transactions with management and others. Mr. L. G. Hardman III is Chairman of the Board of The First National Bank of Commerce, Georgia; Mr. James R. Lientz, Jr. is President of NationsBank Mid-South Banking Group, Atlanta, Georgia; Mr. G. Joseph Prendergast is Senior Executive Vice President, Wachovia Corporation, Atlanta, Georgia; and Mr. Herman J. Russell is Chairman of the Board of Citizens Trust Bank, Atlanta, Georgia. During 1998, these banks furnished a number of regular banking services in the ordinary course of business to GEORGIA. GEORGIA intends to maintain normal banking relations with all the aforesaid banks in the future. In 1998, GEORGIA leased a building from Riverside Manufacturing Co. for approximately $84,075. Also,Riverside Manufacturing sold to GEORGIA fire retardant uniforms for $88,646. Mr. William J. Vereen is Chief Executive Officer, President, Treasurer and Director of Riverside Manufacturing Co. Certain business relationships. None. Indebtedness of management. None. Transactions with promoters. None. GULF Transactions with management and others. None Certain business relationships. None. Indebtedness of management. None. Transactions with promoters. None. MISSISSIPPI Transactions with management and others. Mr. Robert S. Gaddis is Chairman of the Advisory Board of Trustmark National Bank, Laurel, Mississippi; Mr. George A. Schloegel is President of Hancock Bank, Gulfport, Mississippi. During 1998, these banks furnished a number of regular banking services in the ordinary course of business to MISSISSIPPI. MISSISSIPPI intends to maintain normal banking relations with the aforesaid banks in the future. Certain business relationships. None. Indebtedness of management. None. Transactions with promoters. None. III-37 SAVANNAH Transactions with management and others. None Certain business relationships. None. Indebtedness of management. None. Transactions with promoters. None. III-38 Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K (a) The following documents are filed as a part of this report on this Form 10-K: (1) Financial Statements: Reports of Independent Public Accountants on the financial statements for SOUTHERN and Subsidiary Companies, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are listed under Item 8 herein. The financial statements filed as a part of this report for SOUTHERN and Subsidiary Companies, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are listed under Item 8 herein. (2) Financial Statement Schedules: Reports of Independent Public Accountants as to Schedules for SOUTHERN and Subsidiary Companies, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are included herein on pages IV-12 through IV-17. Financial Statement Schedules for SOUTHERN and Subsidiary Companies, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are listed in the Index to the Financial Statement Schedules at page S-1. (3) Exhibits: Exhibits for SOUTHERN, ALABAMA, GEORGIA, GULF, MISSISSIPPI and SAVANNAH are listed in the Exhibit Index at page E-1. (b) Reports on Form 8-K during the fourth quarter of 1998 were as follows: SOUTHERN filed Current Reports on Form 8-K: Date of event: December 18, 1998 Items reported: Items 5 and 7 Date of event: December 21, 1998 Items reported: Item 5 ALABAMA filed Current Reports on Form 8-K: Date of event: October 7, 1998 Items reported: Items 5 and 7 Date of event: October 28, 1998 Items reported: Items 5 and 7 Date of event: November 12, 1998 Items reported: Items 5 and 7 GEORGIA filed Current Reports on Form 8-K: Date of event: November 19, 1998 Items reported: Items 5 and 7 Date of event: November 19, 1998 Items reported: Items 5 and 7 SAVANNAH filed a Current Report on Form 8-K: Date of event: December 3, 1998 Items reported: Items 5 and 7 IV-1 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. THE SOUTHERN COMPANY By: A. W. Dahlberg, Chairman, President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. A. W. Dahlberg Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) W. L. Westbrook Financial Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) Directors: John C. Adams Elmer B. Harris A. D. Correll Zack T. Pate Paul J. DeNicola William J. Rushton, III Jack Edwards Gloria M. Shatto H. Allen Franklin Gerald J. St. Pe' Bruce S. Gordon Herbert Stockham L. G. Hardman III By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. ALABAMA POWER COMPANY By: Elmer B. Harris, President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. Elmer B. Harris President, Chief Executive Officer and Director (Principal Executive Officer) William B. Hutchins, III Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) Art P. Beattie Vice President, Secretary and Comptroller (Principal Accounting Officer) Directors: Whit Armstrong Thomas C. Meredith David J. Cooper John T. Porter A. W. Dahlberg Robert D. Powers Peter V. Gregerson, Sr. Andreas Renschler Carl E. Jones, Jr. C. Dowd Ritter Patricia M. King James H. Sanford James K. Lowder John Cox Webb, IV Wallace D. Malone, Jr. By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 IV-2 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. GEORGIA POWER COMPANY By: H. Allen Franklin, President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. H. Allen Franklin President, Chief Executive Officer and Director (Principal Executive Officer) David M. Ratcliffe Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) Cliff S. Thrasher Vice President, Comptroller and Chief Accounting Officer (Principal Accounting Officer) Directors: Juanita P. Baranco Zell Miller A. W. Dahlberg G. Joseph Prendergast William A. Fickling, Jr. Herman J. Russell L. G. Hardman III William Jerry Vereen Warren Y. Jobe Carl Ware James R. Lientz, Jr. By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. GULF POWER COMPANY By: Travis J. Bowden, President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. Travis J. Bowden President, Chief Executive Officer and Director (Principal Executive Officer) Arlan E. Scarbrough Vice President - Finance (Principal Financial and Accounting Officer) Directors: Paul J. DeNicola Joseph K. Tannehill Fred C. Donovan, Sr. Barbara H. Thames W. Deck Hull, Jr. By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 IV-3 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. MISSISSIPPI POWER COMPANY By: Dwight H. Evans, President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. Dwight H. Evans President, Chief Executive Officer and Director (Principal Executive Officer) Michael W. Southern Vice President, Secretary, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer) Directors: Paul J. DeNicola George A. Schloegel Edwin E. Downer Philip J. Terrell Robert S. Gaddis Gene Warr Linda T. Howard By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. The signature of the undersigned company shall be deemed to relate only to matters having reference to such company and any subsidiaries thereof. SAVANNAH ELECTRIC AND POWER COMPANY By: G. Edison Holland, Jr., President and Chief Executive Officer By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. The signature of each of the undersigned shall be deemed to relate only to matters having reference to the above-named company and any subsidiaries thereof. G. Edison Holland, Jr. President, Chief Executive Officer and Director (Principal Executive Officer) Kirby R. Willis Vice President, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer) Directors: Archie H. Davis Robert B. Miller, III Paul J. DeNicola Arnold M. Tenenbaum Walter D. Gnann By: Wayne Boston (Wayne Boston, Attorney-in-fact) Date: March 24, 1999 IV-4 Exhibit 21. Subsidiaries of the Registrants.* Jurisdiction of Name of Company Organization - - - - - - - ------------------------------------------------ -- --------------------- The Southern Company Delaware Southern Company Capital Trust I Delaware Southern Company Capital Trust II Delaware Southern Company Capital Trust III Delaware Southern Company Capital Trust IV Delaware Southern Company Capital Trust V Delaware Southern Company Capital Trust VI Delaware Southern Company Capital Trust VII Delaware Alabama Power Company Alabama Alabama Power Capital Trust I Delaware Alabama Power Capital Trust II Delaware Alabama Power Capital Trust III Delaware Alabama Power Capital Trust IV Delaware Alabama Power Capital Trust V Delaware Alabama Property Company Alabama Southern Electric Generating Company Alabama Georgia Power Company Georgia Georgia Power Capital Trust I Delaware Georgia Power Capital Trust II Delaware Georgia Power Capital Trust III Delaware Georgia Power Capital Trust IV Delaware Georgia Power Capital Trust V Delaware Georgia Power Capital Trust VI Delaware Georgia Power L.P. Holdings Corp. Georgia Georgia Power Capital, L.P. Delaware Piedmont-Forrest Corporation Georgia Southern Electric Generating Company Alabama Gulf Power Company Maine Gulf Power Capital Trust I Delaware Gulf Power Capital Trust II Delaware Gulf Power Capital Trust III Delaware Mississippi Power Company Mississippi Mississippi Power Capital Trust I Delaware Mississippi Power Capital Trust II Delaware Mississippi Power Capital Trust III Delaware Savannah Electric and Power Company Georgia Savannah Electric Capital Trust I Delaware Southern Energy, Inc. Delaware - - - - - - - ------------------------------------------------ -- --------------------- *This information is as of December 31, 1998. In addition, the list omits certain subsidiaries pursuant to paragraph (b)(21)(ii) of Regulation S-K Item 601. IV-5 Exhibit 23(a) ARTHUR ANDERSEN LLP CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of The Southern Company and its subsidiaries and the related financial statement schedule, included in this Form 10-K, into The Southern Company's previously filed Registration Statement File Nos. 2-78617, 33-3546, 33-30171, 33-51433, 33-54415, 33-57951, 33-58371, 33-60427, 333-09077, 333-44127, 333-44261 and 333-64871. /s/ Arthur Andersen LLP Atlanta, Georgia March 22, 1999 IV-6 ARTHUR ANDERSEN LLP Exhibit 23(b) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of Alabama Power Company and the related financial statement schedule, included in this Form 10-K, into Alabama Power Company's previously filed Registration Statement File Nos. 33-61845 and 333-67453. /s/ Arthur Andersen LLP Birmingham, Alabama March 22, 1999 IV-7 ARTHUR ANDERSEN LLP Exhibit 23(c) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of Georgia Power Company and the related financial statement schedule, included in this Form 10-K, into Georgia Power Company's previously filed Registration Statement File No. 333-43895. /s/ Arthur Andersen LLP Atlanta, Georgia March 22, 1999 IV-8 Exhibit 23(d) ARTHUR ANDERSEN LLP CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of Gulf Power Company and the related financial statement schedule, included in this Form 10-K, into Gulf Power Company's previously filed Registration Statement File Nos. 33-50165 and 333-42033. /s/ Arthur Andersen LLP Atlanta, Georgia March 22, 1999 IV-9 ARTHUR ANDERSEN LLP Exhibit 23 (e) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of Mississippi Power Company and the related financial statement schedule, included in this Form 10-K, into Mississippi Power Company's previously filed Registration Statement File No. 333-45069. /s/ Arthur Andersen LLP Atlanta, Georgia March 22, 1999 IV-10 ARTHUR ANDERSEN LLP Exhibit 23(f) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports dated February 10, 1999 on the financial statements of Savannah Electric and Power Company and the related financial statement schedule, included in this Form 10-K, into Savannah Electric and Power Company's previously filed Registration Statement File No. 333-46171. /s/ Arthur Andersen LLP Atlanta, Georgia March 22, 1999 IV-11 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To The Southern Company: We have audited in accordance with generally accepted auditing standards, the consolidated financial statements of The Southern Company and its subsidiaries included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to The Southern Company and its subsidiaries (page S-2) is the responsibility of The Southern Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic consolidated financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic consolidated financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic consolidated financial statements taken as a whole. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 IV-12 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To Alabama Power Company: We have audited in accordance with generally accepted auditing standards, the financial statements of Alabama Power Company included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to Alabama Power Company (page S-3) is the responsibility of Alabama Power Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP Birmingham, Alabama February 10, 1999 IV-13 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To Georgia Power Company: We have audited in accordance with generally accepted auditing standards, the financial statements of Georgia Power Company included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to Georgia Power Company (page S-4) is the responsibility of Georgia Power Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 IV-14 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To Gulf Power Company: We have audited in accordance with generally accepted auditing standards, the financial statements of Gulf Power Company included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to Gulf Power Company (page S-5) is the responsibility of Gulf Power Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 IV-15 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To Mississippi Power Company: We have audited in accordance with generally accepted auditing standards, the financial statements of Mississippi Power Company included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to Mississippi Power Company (page S-6) is the responsibility of Mississippi Power Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 IV-16 ARTHUR ANDERSEN LLP REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS AS TO SCHEDULE To Savannah Electric and Power Company: We have audited in accordance with generally accepted auditing standards, the financial statements of Savannah Electric and Power Company included in this Form 10-K, and have issued our report thereon dated February 10, 1999. Our audits were made for the purpose of forming an opinion on those statements taken as a whole. The schedule listed under Item 14(a)(2) herein as it relates to Savannah Electric and Power Company (page S-7) is the responsibility of Savannah Electric and Power Company's management and is presented for purposes of complying with the Securities and Exchange Commission's rules and is not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP Atlanta, Georgia February 10, 1999 IV-17 INDEX TO FINANCIAL STATEMENT SCHEDULES Schedule Page II Valuation and Qualifying Accounts and Reserves 1998, 1997 and 1996 The Southern Company and Subsidiary Companies.....................S-2 Alabama Power Company.............................................S-3 Georgia Power Company.............................................S-4 Gulf Power Company................................................S-5 Mississippi Power Company.........................................S-6 Savannah Electric and Power Company...............................S-7 Schedules I through V not listed above are omitted as not applicable or not required. Columns omitted from schedules filed have been omitted because the information is not applicable or not required. S-1
THE SOUTHERN COMPANY AND SUBSIDIARY COMPANIES SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions ---------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period ------------------------------------- ------------------------ -------------- ------------------- --------------- ---------------- Provision for uncollectible accounts 1998.......................... $77,056 $64,789 $6,325 $35,659 (1) $112,511 1997.......................... 31,587 35,930 36,290 (2) 26,751 (1) 77,056 1996.......................... 37,119 24,768 48 30,348 (1) 31,587 - - - - - - - ------------------- Notes: (1) Represents write-off of accounts considered to be uncollectible, less recoveries of amounts previously written off. (2) Includes the addition of a Purchased Reserve in the amount of $37,000 related to the acquisition of CEPA.
S-2
ALABAMA POWER COMPANY SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions --------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period ------------------------------------ ----------------------------------- ------------------ ----------------- --------------- Provision for uncollectible accounts 1998.......................... $2,272 $7,702 $- $8,119 (Note) $1,855 1997.......................... 1,171 8,580 - 7,479 (Note) 2,272 1996.......................... 1,212 8,214 - 8,255 (Note) 1,171 - - - - - - - ------------------- Note: Represents write-off of accounts considered to be uncollectible, less recoveries of amounts previously written off.
S-3
GEORGIA POWER COMPANY SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions --------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period ----------------------------------- ----------------------- -------------- ------------------ ----------------- ---------------- Provision for uncollectible accounts 1998.......................... $3,000 $17,856 $- $15,356 (Note) $5,500 1997.......................... 4,000 7,888 - 8,888 (Note) 3,000 1996.......................... 5,000 11,815 - 12,815 (Note) 4,000 - - - - - - - ------------------- Note: Represents write-off of accounts considered to be uncollectible, less recoveries of amounts previously written off.
S-4
GULF POWER COMPANY SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31,1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions -------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period ------------------------------------ ------------------------ --------------- ------------------ ---------------- --------------- Provision for uncollectible accounts 1998.......................... $796 $2,288 $- $2,088 (Note) $996 1997.......................... 789 1,350 - 1,343 (Note) 796 1996.......................... 768 1,850 7 1,836 (Note) 789 - - - - - - - ------------------- Note: Represents write-off of accounts considered to be uncollectible, less recoveries of amounts previously written off.
S-5
MISSISSIPPI POWER COMPANY SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions -------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period ------------------------------------ ------------------------- -------------- ------------------ ---------------- --------------- Provision for uncollectible accounts 1998.......................... $698 $1,510 $31 $1,618 (Note) $621 1997.......................... 839 1,128 56 1,325 (Note) 698 1996.......................... 802 1,726 41 1,730 (Note) 839 - - - - - - - ------------------- Note: Represents write-off of accounts considered to be uncollectible, less recoveries of amounts previously written off.
S-6
SAVANNAH ELECTRIC AND POWER COMPANY SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (Stated in Thousands of Dollars) Additions ------------------------------------- Balance at Beginning Charged to Charged to Other Balance at End Description of Period Income Accounts Deductions of Period -------------------------------------- ---------------------- ------------ ------------------ --------------- ----------------- Provision for uncollectible accounts 1998.......................... $354 $417 $- $487 (Note) $284 1997.......................... 632 192 - 470 (Note) 354 1996.......................... 983 126 - 477 (Note) 632 - - - - - - - ------------------- Note: Represents write-off of accounts receivable considered to be uncollectible, less recoveries of amounts previously written off.
S-7 EXHIBIT INDEX The following exhibits indicated by an asterisk preceding the exhibit number are filed herewith. The balance of the exhibits have heretofore been filed with the SEC, respectively, as the exhibits and in the file numbers indicated and are incorporated herein by reference. The exhibits marked with a pound sign are management contracts or compensatory plans or arrangements required to be filed herewith and required to be identified as such by Item 14 of Form 10-K. Reference is made to a duplicate list of exhibits being filed as a part of this Form 10-K, which list, prepared in accordance with Item 601 of Regulation S-K of the SEC, immediately precedes the exhibits being physically filed with this Form 10-K. (1) Underwriting Agreements GEORGIA (c) - Distribution Agreement dated November 29, 1995 between GEORGIA and Lehman Brothers Inc.; Donaldson, Lufkin & Jenrette Securities Corporation; J. P. Morgan Securities Inc.; Salomon Brothers Inc and Smith Barney Inc. relating to $300,000,000 First Mortgage Bonds Secured Medium-Term Notes. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1995, as Exhibit 1(c).) (3) Articles of Incorporation and By-Laws SOUTHERN (a) 1 - Composite Certificate of Incorporation of SOUTHERN, reflecting all amendments thereto through January 5, 1994. (Designated in Registration No. 33-3546 as Exhibit 4(a), in Certificate of Notification, File No. 70-7341, as Exhibit A and in Certificate of Notification, File No. 70-8181, as Exhibit A.) (a) 2 - By-laws of SOUTHERN as amended effective October 21, 1991, and as presently in effect. (Designated in Form U-1, File No. 70-8181, as Exhibit A-2.) ALABAMA (b) 1 - Charter of ALABAMA and amendments thereto through August 10, 1998. (Designated in Registration Nos. 2-59634 as Exhibit 2(b), 2-60209 as Exhibit 2(c), 2-60484 as Exhibit 2(b), 2-70838 as Exhibit 4(a)-2, 2-85987 as Exhibit 4(a)-2, 33-25539 as Exhibit 4(a)-2, 33-43917 as Exhibit 4(a)-2, in Form 8-K dated February 5, 1992, File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated July 8, 1992, File No. 1-3164, as Exhibit 4(b)-3, in Form 8-K dated October 27, 1993, File No. 1-3164, as Exhibits 4(a) and 4(b), in Form 8-K dated November 16, 1993, File No. 1-3164, as Exhibit 4(a), in Certificate of Notification, File No. 70-8191, as Exhibit A, in ALABAMA's Form 10-K for the year ended December 31, 1997, File No. 1-3164, as Exhibit 3(b)2 and Form 8-K dated August 10, 1998, File No. 1-3164, as Exhibit 4.4.) E-1 (b) 2 - By-laws of ALABAMA as amended effective July 23, 1993, and as presently in effect. (Designated in Form U-1, File No. 70-8191, as Exhibit A-2.) GEORGIA (c) 1 - Charter of GEORGIA and amendments thereto through January 26, 1998. (Designated in Registration Nos. 2-63392 as Exhibit 2(a)-2, 2-78913 as Exhibits 4(a)-(2) and 4(a)-(3), 2-93039 as Exhibit 4(a)-(2), 2-96810 as Exhibit 4(a)-2, 33-141 as Exhibit 4(a)-(2), 33-1359 as Exhibit 4(a)(2), 33-5405 as Exhibit 4(b)(2), 33-14367 as Exhibits 4(b)-(2) and 4(b)-(3), 33-22504 as Exhibits 4(b)-(2), 4(b)-(3) and 4(b)-(4), in GEORGIA's Form 10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibits 4(a)(2) and 4(a)(3), in Registration No. 33-48895 as Exhibits 4(b)-(2) and 4(b)-(3), in Form 8-K dated December 10, 1992, File No. 1-6468 as Exhibit 4(b), in Form 8-K dated June 17, 1993, File No. 1-6468, as Exhibit 4(b), in Form 8-K dated October 20, 1993, File No. 1-6468, as Exhibit 4(b) and in GEORGIA's Form 10-K for the year ended December 31, 1997, File No. 1-6468, as Exhibit 3(c)2.) (c) 2 - By-laws of GEORGIA as amended effective July 18, 1990, and as presently in effect. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 3.) GULF (d) 1 - Restated Articles of Incorporation of GULF and amendments thereto through January 28, 1998. (Designated in Registration No. 33-43739 as Exhibit 4(b)-1, in Form 8-K dated January 15, 1992, File No. 0-2429, as Exhibit 1(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit 4(b)-2, in Form 8-K dated September 22, 1993, File No. 0-2429, as Exhibit 4, in Form 8-K dated November 3, 1993, File No. 0-2429, as Exhibit 4 and in GULF's Form 10-K for the year ended December 31, 1997, File No. 0-2429, as Exhibit 3(d)2.) (d) 2 - By-laws of GULF as amended effective July 26, 1996, and as presently in effect. (Designated in Form U-1, File No. 70-8949, as Exhibit A-2(c).) MISSISSIPPI (e) 1 - Articles of Incorporation of MISSISSIPPI, articles of merger of Mississippi Power Company (a Maine corporation) into MISSISSIPPI and articles of amendment to the articles of incorporation of MISSISSIPPI through December 31, 1997. (Designated in Registration No. 2-71540 as Exhibit 4(a)-1, in Form U5S for 1987, File No. 30-222-2, as Exhibit B-10, in Registration No. 33-49320 as Exhibit 4(b)-(1), in Form 8-K dated August 5, 1992, File No. 0-6849, as Exhibits 4(b)-2 and 4(b)-3, in Form 8-K dated August 4, 1993, File No. 0-6849, as Exhibit 4(b)-3, in Form 8-K dated August 18, 1993, File No. 0-6849, as Exhibit 4(b)-3 and in MISSISSIPPI's Form 10-K for the year ended December 31, 1997, File No. 0-6849, as Exhibit 3(e)2.) E-2 (e) 2 - By-laws of MISSISSIPPI as amended effective April 2, 1996, and as presently in effect. (Designated in Form U5S for 1995, File No. 30-222-2, as Exhibit B-10.) SAVANNAH (f) 1 - Charter of SAVANNAH and amendments thereto through November 10, 1993. (Designated in Registration Nos. 33-25183 as Exhibit 4(b)-(1), 33-45757 as Exhibit 4(b)-(2) and in Form 8-K dated November 9, 1993, File No. 1-5072, as Exhibit 4(b).) * (f) 2 - Amendment to charter of SAVANNAH dated December 2, 1998. (f) 3 - By-laws of SAVANNAH as amended effective February 16, 1994, and as presently in effect. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1993, as Exhibit 3(f)2.) (4) Instruments Describing Rights of Security Holders, Including Indentures SOUTHERN (a) 1 - Subordinated Note Indenture dated as of February 1, 1997, among SOUTHERN, Southern Company Capital Funding, Inc. and Bankers Trust Company, as Trustee, and indentures supplemental thereto dated as of February 4, 1997. (Designated in Registration Nos. 333-28349 as Exhibits 4.1 and 4.2 and 333-28355 as Exhibit 4.2.) (a) 2 - Subordinated Note Indenture dated as of June 1, 1997, among SOUTHERN, Southern Company Capital Funding, Inc. and Bankers Trust Company, as Trustee, and indentures supplemental thereto through that dated as of December 23, 1998. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit (4)(a)2, in Form 8-K dated June 18, 1998, File No. 1-3526, as Exhibit 4.2 and in Form 8-K dated December 18, 1998, File No. 1-3526, as Exhibit 4.4.) (a) 3 - Amended and Restated Trust Agreement of Southern Company Capital Trust I dated as of February 1, 1997. (Designated in Registration No. 333-28349 as Exhibit 4.6) (a) 4 - Amended and Restated Trust Agreement of Southern Company Capital Trust II dated as of February 1, 1997. (Designated in Registration No. 333-28355 as Exhibit 4.6) (a) 5 - Amended and Restated Trust Agreement of Southern Company Capital Trust III dated as of June 1, 1997. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit (4)(a)5.) (a) 6 - Amended and Restated Trust Agreement of Southern Company Capital Trust IV dated as of June 1, 1998. (Designated in Form 8-K dated June 18, 1998, File No. 1-3526, as Exhibit 4.5.) E-3 (a) 7 - Amended and Restated Trust Agreement of Southern Company Capital Trust V dated as of December 1, 1998. (Designated in Form 8-K dated December 18, 1998, File No. 1-3526, as Exhibit 4.7A.) (a) 8 - Capital Securities Guarantee Agreement relating to Southern Company Capital Trust I dated as of February 1, 1997. (Designated in Registration No. 333-28349 as Exhibit 4.10) (a) 9 - Capital Securities Guarantee Agreement relating to Southern Company Capital Trust II dated as of February 1, 1997. (Designated in Registration No. 333-28355 as Exhibit 4.10) (a) 10 - Preferred Securities Guarantee Agreement relating to Southern Company Capital Trust III dated as of June 1, 1997. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit (4)(a)8.) (a) 11 - Preferred Securities Guarantee Agreement relating to Southern Company Capital Trust IV dated as of June 1, 1998. (Designated in Form 8-K dated June 18, 1998, File No. 1-3626, as Exhibit 4.8.) (a) 12 - Preferred Securities Guarantee Agreement relating to Southern Company Capital Trust V dated as of December 1, 1998. (Designated in Form 8-K dated December 18, 1998, File No. 1-3526, as Exhibit 4.11A.) ALABAMA (b) 1 - Indenture dated as of January 1, 1942, between ALABAMA and The Chase Manhattan Bank (formerly Chemical Bank), as Trustee, and indentures supplemental thereto through that dated as of December 1, 1994. (Designated in Registration Nos. 2-59843 as Exhibit 2(a)-2, 2-60484 as Exhibits 2(a)-3 and 2(a)-4, 2-60716 as Exhibit 2(c), 2-67574 as Exhibit 2(c), 2-68687 as Exhibit 2(c), 2-69599 as Exhibit 4(a)-2, 2-71364 as Exhibit 4(a)-2, 2-73727 as Exhibit 4(a)-2, 33-5079 as Exhibit 4(a)-2, 33-17083 as Exhibit 4(a)-2, 33-22090 as Exhibit 4(a)-2, in ALABAMA's Form 10-K for the year ended December 31, 1990, File No. 1-3164, as Exhibit 4(c), in Registration Nos. 33-43917 as Exhibit 4(a)-2, 33-45492 as Exhibit 4(a)-2, 33-48885 as Exhibit 4(a)-2, 33-48917 as Exhibit 4(a)-2, in Form 8-K dated January 20, 1993, File No. 1-3164, as Exhibit 4(a)-3, in Form 8-K dated February 17, 1993, File No. 1-3164, as Exhibit 4(a)-3, in Form 8-K dated March 10, 1993, File No. 1-3164, as Exhibit 4(a)-3, in Certificate of Notification, File No. 70-8069, as Exhibits A and B, in Form 8-K dated June 24, 1993, File No. 1-3164, as Exhibit 4, in Certificate of Notification, File No. 70-8069, as Exhibit A, in Form 8-K dated November 16, 1993, File No. 1-3164, as Exhibit 4(b), in Certificate of Notification, File No. 70-8069, as Exhibits A and B, in Certificate of Notification, File No. 70-8069, as Exhibit A, in Certificate of Notification, File No. 70-8069, as Exhibit A and in Form 8-K dated November 30, 1994, File No. 1-3164, as Exhibit 4.) E-4 (b) 2 - Subordinated Note Indenture dated as of January 1, 1996, between ALABAMA and The Chase Manhattan Bank (formerly Chemical Bank), as Trustee, and indenture supplemental thereto dated as of January 1, 1996. (Designated in Certificate of Notification, File No. 70-8461, as Exhibits E and F.) (b) 3 - Subordinated Note Indenture dated as of January 1, 1997, between ALABAMA and The Chase Manhattan Bank, as Trustee, and indentures supplemental thereto through that dated as of February 25, 1999. (Designated in Form 8-K dated January 9, 1997, File No. 1-3164, as Exhibits 4.1 and 4.2 and in Form 8-K dated February 18, 1999, File No. 3164, as Exhibit 4.2.) (b) 4 - Senior Note Indenture dated as of December 1, 1997, between ALABAMA and The Chase Manhattan Bank, as Trustee, and indentures supplemental thereto through that dated November 17, 1998. (Designated in Form 8-K dated December 4, 1997, File No. 1-3164, as Exhibits 4.1 and 4.2, in Form 8-K dated February 20, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated April 17, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated August 11, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated September 8, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated September 16, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated October 7, 1998, File No. 1-3164, as Exhibit 4.2, in Form 8-K dated October 28, 1998, File No. 1-3164, as Exhibit 4.2 and in Form 8-K dated November 12, 1998, File No. 1-3164, as Exhibit 4.2 .) (b) 5 - Amended and Restated Trust Agreement of Alabama Power Capital Trust I dated as of January 1, 1996. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit D.) (b) 6 - Amended and Restated Trust Agreement of Alabama Power Capital Trust II dated as of January 1, 1997. (Designated in Form 8-K dated January 9, 1997, File No. 1-3164, as Exhibit 4.5.) (b) 7 - Amended and Restated Trust Agreement of Alabama Power Capital Trust III dated as of February 1, 1999. (Designated in Form 8-K dated February 18, 1999, File No. 1-3164, as Exhibit 4.5.) (b) 8 - Guarantee Agreement relating to Alabama Power Capital Trust I dated as of January 1, 1996. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit G.) (b) 9 - Guarantee Agreement relating to Alabama Power Capital Trust II dated as of January 1, 1997. (Designated in Form 8-K dated January 9, 1997, File No. 1-3164, as Exhibit 4.8.) (b) 10 - Guarantee Agreement relating to Alabama Power Capital Trust III dated as of February 1, 1999. (Designated in Form 8-K dated February 18, 1999, File No. 1-3164, as Exhibit 4.8.) E-5 GEORGIA (c) 1 - Indenture dated as of March 1, 1941, between GEORGIA and The Chase Manhattan Bank (formerly Chemical Bank), as Trustee, and indentures supplemental thereto dated as of March 1, 1941, March 3, 1941 (3 indentures), March 6, 1941 (139 indentures), March 1, 1946 (88 indentures) and December 1, 1947, through October 15, 1995. (Designated in Registration Nos. 2-4663 as Exhibits B-3 and B-3(a), 2-7299 as Exhibit 7(a)-2, 2-61116 as Exhibit 2(a)-3 and 2(a)-4, 2-62488 as Exhibit 2(a)-3, 2-63393 as Exhibit 2(a)-4, 2-63705 as Exhibit 2(a)-3, 2-68973 as Exhibit 2(a)-3, 2-70679 as Exhibit 4(a)-(2), 2-72324 as Exhibit 4(a)-2, 2-73987 as Exhibit 4(a)-(2), 2-77941 as Exhibits 4(a)-(2) and 4(a)-(3), 2-79336 as Exhibit 4(a)-(2), 2-81303 as Exhibit 4(a)-(2), 2-90105 as Exhibit 4(a)-(2), 33-5405 as Exhibit 4(a)-(2), 33-14367 as Exhibits 4(a)-(2) and 4(a)-(3), 33-22504 as Exhibits 4(a)-(2), 4(a)-(3) and 4(a)-(4), 33-32420 as Exhibit 4(a)-(2), 33-35683 as Exhibit 4(a)-(2), in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 4(a)(3), in Form 10-K for the year ended December 31, 1991, File No. 1-6468, as Exhibit 4(a)(5), in Registration No. 33-48895 as Exhibit 4(a)-(2), in Form 8-K dated August 26, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-K dated September 9, 1992, File No. 1-6468, as Exhibits 4(a)-(3) and 4(a)-(4), in Form 8-K dated September 23, 1992, File No. 1-6468, as Exhibit 4(a)-(3), in Form 8-A dated October 12, 1992, as Exhibit 2(b), in Form 8-K dated January 27, 1993, File No. 1-6468, as Exhibit 4(a)-(3), in Registration No. 33-49661 as Exhibit 4(a)-(2), in Form 8-K dated July 26, 1993, File No. 1-6468, as Exhibit 4, in Certificate of Notification, File No. 70-7832, as Exhibit M, in Certificate of Notification, File No. 70-7832, as Exhibit C, in Certificate of Notification, File No. 70-7832, as Exhibits K and L, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit E, in Certificate of Notification, File No. 70-8443, as Exhibit E, in Certificate of Notification, File No. 70-8443, as Exhibit E, in GEORGIA's Form 10-K for the year ended December 31, 1994, File No. 1-6468, as Exhibits 4(c)2 and 4(c)3, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Certificate of Notification, File No. 70-8443, as Exhibit C, in Form 8-K dated May 17, 1995, File No. 1-6468, as Exhibit 4 and in GEORGIA's Form 10-K for the year ended December 31, 1995, File No. 1-6468, as Exhibits 4(c)2, 4(c)3, 4(c)4, 4(c)5 and 4(c)6.) (c) 2 - Indenture dated as of December 1, 1994, between GEORGIA and Trust Company Bank, as Trustee and indentures supplemental thereto through that dated as of December 15, 1994. (Designated in Certificate of Notification, File No. 70-8461, as Exhibits E and F.) (c) 3 - Subordinated Note Indenture dated as of August 1, 1996, between GEORGIA and The Chase Manhattan Bank, as Trustee, and indentures supplemental thereto through January 1, 1997. (Designated in Form 8-K dated August 21, 1996, File No. 1-6468, as Exhibits 4.1 and 4.2 and in Form 8-K dated January 9, 1997, File No. 1-6468, as Exhibit 4.2.) (c) 4 - Subordinated Note Indenture dated as of June 1, 1997, between GEORGIA and The Chase Manhattan Bank, as Trustee, E-6 and indentures supplemental thereto through that dated as of February 25, 1999. (Designated in Certificate of Notification, File No. 70-8461, as Exhibits D and E and Form 8-K dated February 17, 1999, File No. 1-6468, as Exhibit 4.4.) (c) 5 - Senior Note Indenture dated as of January 1, 1998, between GEORGIA and The Chase Manhattan Bank, as Trustee, and indentures supplemental thereto through that dated as of March 9, 1999. (Designated in Form 8-K dated January 21, 1998, File No. 1-6468, as Exhibits 4.1 and 4.2, in Forms 8-K each dated November 19, 1998, File No. 1-6468, as Exhibit 4.2 and in Form 8-K dated March 3, 1999, File No. 1-6469 as Exhibit 4.2.) (c) 6 - Amended and Restated Trust Agreement of Georgia Power Capital Trust I dated as of August 1, 1996. (Designated in Form 8-K dated August 21, 1996, File No. 1-6468, as Exhibit 4.5.) (c) 7 - Amended and Restated Trust Agreement of Georgia Power Capital Trust II dated as of January 1, 1997. (Designated in Form 8-K dated January 9, 1997, File No. 1-6468, as Exhibit 4.5.) (c) 8 - Amended and Restated Trust Agreement of Georgia Power Capital Trust III dated as of June 1, 1997. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit C.) (c) 9 - Amended and Restated Trust Agreement of Georgia Power Capital Trust IV dated as of February 1, 1999. (Designated in Form 8-K dated February 17, 1999, as Exhibit 4.7-A) (c) 10 - Guarantee Agreement relating to Georgia Power Capital Trust I dated as of August 1, 1996. (Designated in Form 8-K dated August 21, 1996, File No. 1-6468, as Exhibit 4.8.) (c) 11 - Guarantee Agreement relating to Georgia Power Capital Trust II dated as of January 1, 1997. (Designated in Form 8-K dated January 9, 1997, File No. 1-6468, as Exhibit 4.8.) (c) 12 - Guarantee Agreement relating to Georgia Power Capital Trust III dated as of June 1, 1997. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit F.) (c) 13 - Guarantee Agreement relating to Georgia Power Capital Trust IV dated as of February 1, 1999. (Designated in Form 8-K dated February 17, 1999, as Exhibit 4.11-A.) GULF (d) 1 - Indenture dated as of September 1, 1941, between GULF and The Chase Manhattan Bank (formerly The Chase Manhattan Bank (National Association)), as Trustee, and indentures supplemental thereto through November 1, 1996. (Designated in Registration Nos. 2-4833 as Exhibit B-3, 2-62319 as Exhibit 2(a)-3, 2-63765 as Exhibit 2(a)-3, 2-66260 as Exhibit 2(a)-3, 33-2809 as Exhibit 4(a)-2, 33-43739 as E-7 Exhibit 4(a)-2, in GULF's Form 10-K for the year ended December 31, 1991, File No. 0-2429, as Exhibit 4(b), in Form 8-K dated August 18, 1992, File No. 0-2429, as Exhibit 4(a)-3, in Registration No. 33-50165 as Exhibit 4(a)-2, in Form 8-K dated July 12, 1993, File No. 0-2429, as Exhibit 4, in Certificate of Notification, File No. 70-8229, as Exhibit A, in Certificate of Notification, File No. 70-8229, as Exhibits E and F, in Form 8-K dated January 17, 1996, File No. 0-2429, as Exhibit 4, in Certificate of Notification, File No. 70-8229, as Exhibit A, in Certificate of Notification, File No. 70-8229, as Exhibit A and in Form 8-K dated November 6, 1996, File No. 0-2429, as Exhibit 4.) (d) 2 - Subordinated Note Indenture dated as of January 1, 1997, between GULF and The Chase Manhattan Bank, as Trustee, and indentures supplemental thereto through that dated as of January 1, 1998. (Designated in Form 8-K dated January 27, 1997, File No. 0-2429, as Exhibits 4.1 and 4.2, in Form 8-K dated July 28, 1997, File No. 0-2429, as Exhibit 4.2 and in Form 8-K dated January 13, 1998, File No. 0-2429, as Exhibit 4.2.) (d) 3 - Senior Note Indenture dated as of January 1, 1998, between GULF and The Chase Manhattan Bank, as Trustee, and indenture supplemental thereto dated as of June 24, 1998. (Designated in Form 8-K dated June 17, 1998, File No. 0-2429, as Exhibits 4.1 and 4.2.) (d) 4 - Amended and Restated Trust Agreement of Gulf Power Capital Trust I dated as of January 1, 1997. (Designated in Form 8-K dated January 27, 1997, File No. 0-2429, as Exhibit 4.5.) (d) 5 - Amended and Restated Trust Agreement of Gulf Power Capital Trust II dated as of January 1, 1998. (Designated in Form 8-K dated January 13, 1998, File No. 0-2429, as Exhibit 4.5.) (d) 6 - Guarantee Agreement relating to Gulf Power Capital Trust I dated as of January 1, 1997. (Designated in Form 8-K dated January 27, 1997, File No. 0-2429, as Exhibit 4.8.) (d) 7 - Guarantee Agreement relating to Gulf Power Capital Trust II dated as of January 1, 1998. (Designated in Form 8-K dated January 13, 1998, File No. 0-2429, as Exhibit 4.8.) MISSISSIPPI (e) 1 - Indenture dated as of September 1, 1941, between MISSISSIPPI and Bankers Trust Company, as Successor Trustee, and indentures supplemental thereto through December 1, 1995. (Designated in Registration Nos. 2-4834 as Exhibit B-3, 2-62965 as Exhibit 2(b)-2, 2-66845 as Exhibit 2(b)-2, 2-71537 as Exhibit 4(a)-(2), 33-5414 as Exhibit 4(a)-(2), 33-39833 as Exhibit 4(a)-2, in MISSISSIPPI's Form 10-K for the year ended December 31, 1991, File No. 0-6849, as Exhibit 4(b), in Form 8-K dated August 5, 1992, File No. 0-6849, as Exhibit 4(a)-2, in Second Certificate of Notification, File No. 70-7941, as Exhibit I, in MISSISSIPPI's Form 8-K dated February 26, 1993, File No. 0-6849, as Exhibit 4(a)-2, in Certificate of Notification, File No. 70-8127, as Exhibit A, in Form 8-K dated June 22, 1993, File No. 0-6849, as Exhibit 1, in Certificate of Notification, File No. 70-8127, as Exhibit A, in Form 8-K E-8 dated March 8, 1994, File No. 0-6849, as Exhibit 4, in Certificate of Notification, File No. 70-8127, as Exhibit C and in Form 8-K dated December 5, 1995, File No. 0-6849, as Exhibit 4.) (e) 2 - Senior Note Indenture dated as of May 1, 1998 between MISSISSIPPI and Bankers Trust Company, as Trustee and indentures supplemental thereto through May 20, 1998. (Designated in Form 8-K dated May 14, 1998, File No. 0-6849, as Exhibits 4.1, 4.2(a) and 4.2(b).) (e) 3 - Subordinated Note Indenture dated as of February 1, 1997, between MISSISSIPPI and Bankers Trust Company, as Trustee, and indenture supplemental thereto dated as of February 1, 1997. (Designated in Form 8-K dated February 20, 1997, File No. 0-6849, as Exhibits 4.1 and 4.2.) (e) 4 - Amended and Restated Trust Agreement of Mississippi Power Capital Trust I dated as of February 1, 1997. (Designated in Form 8-K dated February 20, 1997, File No. 0-6849, as Exhibit 4.5.) (e) 5 - Guarantee Agreement relating to Mississippi Power Capital Trust I dated as of February 1, 1997. (Designated in Form 8-K dated February 20, 1997, File No. 0-6849, as Exhibit 4.8.) SAVANNAH (f) 1 - Indenture dated as of March 1, 1945, between SAVANNAH and The Bank of New York, New York, as Trustee, and indentures supplemental thereto through May 1, 1996. (Designated in Registration Nos. 33-25183 as Exhibit 4(a)-(1), 33-41496 as Exhibit 4(a)-(2), 33-45757 as Exhibit 4(a)-(2), in SAVANNAH's Form 10-K for the year ended December 31, 1991, File No. 1-5072, as Exhibit 4(b), in Form 8-K dated July 8, 1992, File No. 1-5072, as Exhibit 4(a)-3, in Registration No. 33-50587 as Exhibit 4(a)-(2), in Form 8-K dated July 22, 1993, File No. 1-5072, as Exhibit 4, in Form 8-K dated May 18, 1995, File No. 1-5072, as Exhibit 4 and in Form 8-K dated May 23, 1996, File No. 1-5072, as Exhibit 4.) (f) 2 - Senior Note Indenture dated as of March 1, 1998 between SAVANNAH and The Bank of New York, as Trustee and indenture supplemental thereto dated as of March 1, 1998. (Designated in Form 8-K dated March 9, 1998, File No. 1-5072, as Exhibits 4.1 and 4.2.) (f) 3 - Subordinated Note Indenture dated as of December 1, 1998, between SAVANNAH and The Bank of New York, as Trustee, and indenture supplemental thereto dated as of December 9, 1998. (Designated in Form 8-K dated December 3, 1998, File No. 1-5072, as Exhibit 4.3 and 4.4.) (f) 4 - Amended and Restated Trust Agreement of Savannah Electric Capital Trust I dated as of December 1, 1998. (Designated in Form 8-K dated December 3, 1998, File No. 1-5072, as Exhibit 4.7.) E-9 (f) 5 - Guarantee Agreement relating to Savannah Electric Capital Trust I dated as of December 1, 1998. (Designated in Form 8-K dated December 3, 1998, File No. 1-5072, as Exhibit 4.11.) (10) Material Contracts SOUTHERN (a) 1 - Service contracts dated as of January 1, 1984, between SCS and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SEGCO and SOUTHERN and Amendment No. 1 dated as of September 6, 1985 between SCS and SOUTHERN. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1984, File No. 1-3526, as Exhibit 10(a) and in SOUTHERN's Form 10-K for the year ended December 31, 1985, File No. 1-3526, as Exhibit 10(a)(3).) (a) 2 - Service contract dated as of July 17, 1981, between SCS and SEI. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1985, File No. 1-3526, as Exhibit 10(a)(2).) (a) 3 - Service contract dated as of March 3, 1988, between SCS and SAVANNAH. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1987, File No. 1-5072, as Exhibit 10-p.) (a) 4 - Service contract dated as of January 15, 1991, between SCS and Southern Nuclear. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1991, File No. 1-3526, as Exhibit 10(a)(4).) (a) 5 - Service contract dated as of December 12, 1994, between SCS and Mobile Energy Services Company, Inc. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1994, File No. 1-3526, as Exhibit 10(a)58.) (a) 6 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1988, File No. 1-5072, as Exhibit 10(b).) (a) 7 - Agreement dated as of January 27, 1959, Amendment No. 1 dated as of October 27, 1982 and Amendment No. 2 dated November 4, 1993 and effective June 1, 1994, among SEGCO, ALABAMA and GEORGIA. (Designated in Registration No. 2-59634 as Exhibit 5(c), in GEORGIA's Form 10-K for the year ended December 31, 1982, File No. 1-6468, as Exhibit 10(d)(2) and in ALABAMA's Form 10-K for the year ended December 31, 1994, File No. 1-3164, as Exhibit 10(b)18.) (a) 8 - Joint Committee Agreement dated as of August 27, 1976, among GEORGIA, OPC, MEAG and Dalton. (Designated in Registration No. 2-61116 as Exhibit 5(d).) (a) 9 - Edwin I. Hatch Nuclear Plant Purchase and Ownership Participation Agreement dated as of January 6, 1975, between GEORGIA and OPC. (Designated in Form 8-K for January, 1975, File No. 1-6468, as Exhibit (b)(1).) E-10 (a) 10 - Edwin I. Hatch Nuclear Plant Operating Agreement dated as of January 6, 1975, between GEORGIA and OPC. (Designated in Form 8-K for January, 1975, File No. 1-6468, as Exhibit (b)(3).) (a) 11 - Revised and Restated Integrated Transmission System Agreement dated as of November 12, 1990, between GEORGIA and OPC. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(g).) (a) 12 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of March 26, 1976, between GEORGIA and OPC. (Designated in Certificate of Notification, File No. 70-5592, as Exhibit A.) (a) 13 - Plant Hal Wansley Operating Agreement dated as of March 26, 1976, between GEORGIA and OPC. (Designated in Certificate of Notification, File No. 70-5592, as Exhibit B.) (a) 14 - Edwin I. Hatch Nuclear Plant Purchase and Ownership Participation Agreement dated as of August 27, 1976, between GEORGIA, MEAG and Dalton. (Designated in Form 8-K dated as of June 13, 1977, File No. 1-6468, as Exhibit (b)(1).) (a) 15 - Edwin I. Hatch Nuclear Plant Operating Agreement dated as of August 27, 1976, between GEORGIA, MEAG and Dalton. (Designated in Form 8-K for February 1977, File No. 1-6468, as Exhibit (b)(2).) (a) 16 - Alvin W. Vogtle Nuclear Units Number One and Two Purchase and Ownership Participation Agreement dated as of August 27, 1976 and Amendment No. 1 dated as of January 18, 1977, among GEORGIA, OPC, MEAG and Dalton. (Designated in Form U-1, File No. 70-5792, as Exhibit B-1 and in Form 8-K for January 1977, File No. 1-6468, as Exhibit (B)(3).) (a) 17 - Alvin W. Vogtle Nuclear Units Number One and Two Operating Agreement dated as of August 27, 1976, among GEORGIA, OPC, MEAG and Dalton. (Designated in Form U-1, File No. 70-5792, as Exhibit B-2.) (a) 18 - Alvin W. Vogtle Nuclear Units Number One and Two Purchase, Amendment, Assignment and Assumption Agreement dated as of November 16, 1983, between GEORGIA and MEAG. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1983, File No. 1-6468, as Exhibit 10(k)(4).) (a) 19 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of August 27, 1976, between GEORGIA and MEAG. (Designated in Form 8-K dated as of July 5, 1977, File No. 1-6468, as Exhibit (b)(2).) (a) 20 - Plant Hal Wansley Operating Agreement dated as of August 27, 1976, between GEORGIA and MEAG. (Designated in Form 8-K dated as of July 5, 1977, File No. 1-6468, as Exhibit (b)(4).) E-11 (a) 21 - Nuclear Operating Agreement between Southern Nuclear and GEORGIA dated as of July 1, 1993. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)21.) (a) 22 - Pseudo Scheduling and Services Agreement between GEORGIA and MEAG dated as of April 8, 1997. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)22.) (a) 23 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of April 19, 1977, between GEORGIA and Dalton. (Designated in Form 8-K dated as of June 13, 1977, File No. 1-6468, as Exhibit (b)(3).) (a) 24 - Plant Hal Wansley Operating Agreement dated as of April 19, 1977, between GEORGIA and Dalton. (Designated in Form 8-K dated as of June 13, 1977, File No. 1-6468, as Exhibit (b)(7).) (a) 25 - Plant Robert W. Scherer Units Number One and Two Purchase and Ownership Participation Agreement dated as of May 15, 1980, Amendment No. 1 dated as of December 30, 1985, Amendment No. 2 dated as of July 1, 1986, Amendment No. 3 dated as of August 1, 1988 and Amendment No. 4 dated as of December 31, 1990, among GEORGIA, OPC, MEAG and Dalton. (Designated in Form U-1, File No. 70-6481, as Exhibit B-3, in SOUTHERN's Form 10-K for the year ended December 31, 1987, File No. 1-3526, as Exhibit 10(o)(2), in SOUTHERN's Form 10-K for the year ended December 31, 1989, File No. 1-3526, as Exhibit 10(n)(2) and in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)54.) (a) 26 - Plant Robert W. Scherer Units Number One and Two Operating Agreement dated as of May 15, 1980, Amendment No. 1 dated as of December 3, 1985 and Amendment No. 2 dated as of December 31, 1990, among GEORGIA, OPC, MEAG and Dalton. (Designated in Form U-1, File No. 70-6481, as Exhibit B-4, in SOUTHERN's Form 10-K for the year ended December 31, 1987, File No. 1-3526, as Exhibit 10(o)(4) and in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)55.) (a) 27 - Plant Robert W. Scherer Purchase, Sale and Option Agreement dated as of May 15, 1980, between GEORGIA and MEAG. (Designated in Form U-1, File No. 70-6481, as Exhibit B-1.) (a) 28 - Plant Robert W. Scherer Purchase and Sale Agreement dated as of May 16, 1980, between GEORGIA and Dalton. (Designated in Form U-1, File No. 70-6481, as Exhibit B-2.) (a) 29 - Plant Robert W. Scherer Unit Number Three Purchase and Ownership Participation Agreement dated as of March 1, 1984, Amendment No. 1 dated as of July 1, 1986 and Amendment No. 2 dated as of August 1, 1988, between GEORGIA and GULF. (Designated in Form U-1, File No. 70-6573, as Exhibit B-4, in SOUTHERN's Form 10-K for the year ended December 31, 1987, as Exhibit 10(o)(2) and in SOUTHERN's Form 10-K for the year ended December 31, 1989, as Exhibit 10(n)(2).) E-12 (a) 30 - Plant Robert W. Scherer Unit Number Three Operating Agreement dated as of March 1, 1984, between GEORGIA and GULF. (Designated in Form U-1, File No. 70-6573, as Exhibit B-5.) (a) 31 - Plant Robert W. Scherer Unit No. Four Amended and Restated Purchase and Ownership Participation Agreement by and among GEORGIA, FP&L and JEA, dated as of December 31, 1990 and Amendment No. 1 dated as of June 15, 1994. (Designated in Form U-1, File No. 70-7843, as Exhibit B-1 and in SOUTHERN's Form 10-K for the year ended December 31, 1994, File No. 1-3526, as Exhibit 10(a)60.) (a) 32 - Plant Robert W. Scherer Unit No. Four Operating Agreement by and among GEORGIA, FP&L and JEA, dated as of December 31, 1990 and Amendment No. 1 dated as of June 15, 1994. (Designated in Form U-1, File No. 70-7843, as Exhibit B-2 and in SOUTHERN's Form 10-K for the year ended December 31, 1994, File No. 1-3526, as Exhibit 10(a)61.) (a) 33 - Amended and Restated Unit Power Sales Agreement dated February 18, 1982 and Amendment No. 1 dated May 18, 1982, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. (Designated in MISSISSIPPI's Form 10-K for the year ended December 31, 1981, File No. 0-6849, as Exhibit 10(c)(2) and in GEORGIA's Form 10-K for the year ended December 31, 1982, File No. 1-6468, as Exhibit 10(r)(3).) (a) 34 - Amended and Restated Unit Power Sales Agreement dated May 19, 1982, Amendment No. 1 dated August 30, 1984 and Amendment No. 2 dated October 30, 1987, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1982, File No. 1-6468, as Exhibit 10(s)(2), in SOUTHERN's Form 10-K for the year ended December 31, 1984, File No. 1-3526, as Exhibit 10(r)(2) and in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(s)(2).) (a) 35 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1988, File No. 1-5072, as Exhibit 10(d).) (a) 36 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1988, File No. 1-5072, as Exhibit 10(e).) (a) 37 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1988, File No. 1-5072, as Exhibit 10(f).) E-13 (a) 38 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(x).) (a) 39 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in GULF's Form 10-K for the year ended December 31, 1991, File No. 0-2429, as Exhibit 10(1).) (a) 40 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. (Designated in GULF's Form 10-K for the year ended December 31, 1991, File No. 0-2429, as Exhibit 10(m).) (a) 41 - Rocky Mountain Pumped Storage Hydroelectric Project Ownership Participation Agreement dated November 18, 1988, between OPC and GEORGIA. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1988, File No. 1-6468, as Exhibit 10(x).) (a) 42 - Rocky Mountain Pumped Storage Hydroelectric Project Operating Agreement dated November 18, 1988, between OPC and GEORGIA. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1988, File No. 1-6468, as Exhibit 10(y).) (a) 43 - Purchase and Ownership Agreement for Joint Ownership Interest in the James H. Miller, Jr. Steam Electric Generating Plant Units One and Two dated November 18, 1988, between ALABAMA and AEC. (Designated in Form U-1, File No. 70-7609, as Exhibit B-1.) (a) 44 - Operating Agreement for Joint Ownership Interest in the James H. Miller, Jr. Steam Electric Generating Plant Units One and Two dated November 18, 1988, between ALABAMA and AEC. (Designated in Form U-1, File No. 70-7609, as Exhibit B-2.) (a) 45 - Transmission Facilities Agreement dated February 25, 1982, Amendment No. 1 dated May 12, 1982 and Amendment No. 2 dated December 6, 1983, between Gulf States and MISSISSIPPI. (Designated in MISSISSIPPI's Form 10-K for the year ended December 31, 1981, File No. 0-6849, as Exhibit 10(f), in MISSISSIPPI's Form 10-K for the year ended December 31, 1982, File No. 0-6849, as Exhibit 10(f)(2) and in MISSISSIPPI's Form 10-K for the year ended December 31, 1983, File No. 0-6849, as Exhibit 10(f)(3).) (a) 46 - Form of commitment agreement, Amendment No. 1 and Amendment No. 2 with respect to SOUTHERN, ALABAMA, GEORGIA and MISSISSIPPI revolving credits. (Designated in Form U-1, File No. 70-7738, as Exhibit A-5 and in Form U-1, File No. 70-7937, as A-5(b).) E-14 (a) 47 - Block Power Sale Agreement between GEORGIA and OPC dated as of November 12, 1990. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(cc).) (a) 48 - Revised and Restated Coordination Services Agreement between and among GEORGIA, OPC and Georgia Systems Operations Corporation dated as of September 10, 1997. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)48.) (a) 49 - Amended and Restated Nuclear Managing Board Agreement for Plant Hatch and Plant Vogtle among GEORGIA, OPC, MEAG and Dalton dated as of July 1, 1993. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)49.) (a) 50 - Integrated Transmission System Agreement, Power Sale and Coordination Umbrella Agreement between GEORGIA and OPC dated as of November 12, 1990. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(ff).) (a) 51 - Revised and Restated Integrated Transmission System Agreement between GEORGIA and Dalton dated as of December 7, 1990. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(gg).) (a) 52 - Revised and Restated Integrated Transmission System Agreement between GEORGIA and MEAG dated as of December 7, 1990. (Designated in GEORGIA's Form 10-K for the year ended December 31, 1990, File No. 1-6468, as Exhibit 10(hh).) (a) 53 - Long Term Transmission Service Agreement between Entergy Power, Inc. and ALABAMA, MISSISSIPPI and SCS. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1992, File No. 1-3526, as Exhibit 10(a)53.) (a) 54 - Plant Scherer Managing Board Agreement dated as of December 31, 1990 among GEORGIA, OPC, MEAG, Dalton, GULF, FP&L and JEA. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)56.) (a) 55 - Plant McIntosh Combustion Turbine Purchase and Ownership Participation Agreement between GEORGIA and SAVANNAH dated as of December 15, 1992. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)57.) (a) 56 - Plant McIntosh Combustion Turbine Operating Agreement between GEORGIA and SAVANNAH dated as of December 15, 1992. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)58.) (a) 57 - Power Purchase Agreement dated as of December 3, 1993 between GEORGIA and FPC. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1993, File No. 1-3526, as Exhibit 10(a)59.) E-15 (a) 58 - Operating Agreement for the Joseph M. Farley Nuclear Plant between ALABAMA and Southern Nuclear dated as of December 23, 1991. (Designated in Form U-1, File No. 70-7530, as Exhibit B-7.) # * (a) 59 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. # * (a) 60 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. * (a) 61 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. * (a) 62 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. * (a) 63 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. # (a) 64 - The Deferred Compensation Plan for the Directors of The Southern Company and First Amendment and Second Amendment thereto. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1994, File No. 1-3526, as Exhibit 10(a)76 and in SOUTHERN's Form 10-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit 10(a)75.) # (a) 65 - The Southern Company Outside Directors Pension Plan. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1994, File No. 1-3526, as Exhibit 10(a)77.) # * (a) 66 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. # (a) 67 - The Southern Company Outside Directors Stock Plan and First Amendment thereto. (Designated in Registration No. 33-54415 as Exhibit 4(c) and in SOUTHERN's Form 10-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit 10(a)79.) # (a) 68 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1995, File No. 1-3526, as Exhibit 10(a)80.) # * (a) 69 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. E-16 (a) 70 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1996, File No. 1-3526, as Exhibit 10(a)83 and in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)79.) * (a) 71 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. # * (a) 72 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. # (a) 73 - The Southern Company Supplemental Executive Retirement Plan. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)81.) # * (a) 74 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. # (a) 75 - The Southern Company Performance Sharing Plan effective January 1, 1997. (Designated in SOUTHERN's Form 10-K for the year ended December 31, 1997, File No. 1-3526, as Exhibit 10(a)82.) # * (a) 76 - Amendments One through Six to The Southern Company Performance Sharing Plan. # * (a) 77 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. * (a) 78 - Southern Company Change in Control Severance Plan, effective December 7, 1998. # * (a) 79 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. # * (a) 80 - Deferred Compensation Agreement between SOUTHERN, GEORGIA and Henry Allen Franklin. # * (a) 81 - Deferred Compensation Agreement between SOUTHERN, Southern Nuclear and William G. Hairston III. # * (a) 82 - Deferred Compensation Agreement between SOUTHERN, GEORGIA and Warren Y. Jobe. # * (a) 83 - Change in Control Agreement between SOUTHERN, Southern Energy Resources, Inc. and Thomas G. Boren. # * (a) 84 - Change in Control Agreement between SOUTHERN, GULF and Travis J. Bowden. # * (a) 85 - Change in Control Agreement between SOUTHERN, SCS and A. W. Dahlberg. # * (a) 86 - Change in Control Agreement between SOUTHERN, SCS and Paul J. DeNicola. E-17 # * (a) 87 - Change in Control Agreement between SOUTHERN, MISSISSIPPI and Dwight H. Evans. # * (a) 88 - Change in Control Agreement between SOUTHERN, ALABAMA and Banks Harry Farris. # * (a) 89 - Change in Control Agreement between SOUTHERN, GEORGIA and Henry Allen Franklin. # * (a) 90 - Change in Control Agreement between SOUTHERN, Southern Nuclear and William G. Hairston, III. # * (a) 91 - Change in Control Agreement between SOUTHERN, ALABAMA and Elmer B. Harris. # * (a) 92 - Change in Control Agreement between SOUTHERN, SAVANNAH and G. Edison Holland, Jr. # * (a) 93 - Change in Control Agreement between SOUTHERN, SCS and C. Alan Martin. # * (a) 94 - Change in Control Agreement between SOUTHERN, SCS and Charles Douglas McCrary. # * (a) 95 - Change in Control Agreement between SOUTHERN, GEORGIA and David M. Ratcliffe. # * (a) 96 - Change in Control Agreement between SOUTHERN, SCS and Stephen A. Wakefield. # * (a) 97 - Change in Control Agreement between SOUTHERN, SCS and W. Lawrence Westbrook. ALABAMA (b) 1 - Service contracts dated as of January 1, 1984, between SCS and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SEGCO and SOUTHERN and Amendment No. 1 dated as of September 6, 1985 between SCS and SOUTHERN. See Exhibit 10(a)1 herein. (b) 2 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)6 herein. (b) 3 - Agreement dated as of January 27, 1959, Amendment No. 1 dated as of October 27, 1982 and Amendment No. 2 dated November 4, 1993 and effective June 1, 1994, among SEGCO, ALABAMA and GEORGIA. See Exhibit 10(a)7 herein. E-18 (b) 4 - Amended and Restated Unit Power Sales Agreement dated February 18, 1982 and Amendment No. 1 dated May 18, 1982, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)33 herein. (b) 5 - Amended and Restated Unit Power Sales Agreement dated May 19, 1982, Amendment No. 1, dated August 30, 1984 and Amendment No. 2, dated October 30, 1987, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)34 herein. (b) 6 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)35 herein. (b) 7 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)36 herein. (b) 8 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)37 herein. (b) 9 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)38 herein. (b) 10 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)39 herein. (b) 11 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)40 herein. (b) 12 - Firm Power Purchase Contract between ALABAMA and AMEA. (Designated in Certificate of Notification, File No. 70-7212, as Exhibit B.) (b) 13 - 1991 Firm Power Purchase Contract between ALABAMA and AMEA. (Designated in Form U-1, File No. 70-7873, as Exhibit B-1.) (b) 14 - Purchase and Ownership Agreement for Joint Ownership Interest in the James H. Miller, Jr. Steam Electric Generating Plant Units One and Two dated November 18, 1988, between ALABAMA and AEC. See Exhibit 10(a)43 herein. (b) 15 - Operating Agreement for Joint Ownership Interest in the James H. Miller, Jr. Steam Electric Generating Plant Units One and Two dated November 18, 1988, between ALABAMA and AEC. See Exhibit 10(a)44 herein. (b) 16 - Form of commitment agreement, Amendment No. 1 and Amendment No. 2 with respect to SOUTHERN, ALABAMA, GEORGIA and MISSISSIPPI revolving credits. See Exhibit 10(a)46 herein. E-19 (b) 17 - Long Term Transmission Service Agreement between Entergy Power, Inc. and ALABAMA, MISSISSIPPI and SCS. See Exhibit 10(a)53 herein. (b) 18 - Operating Agreement for the Joseph M. Farley Nuclear Plant between ALABAMA and Southern Nuclear dated as of December 23, 1991. See Exhibit 10(a)58 herein. # * (b) 19 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)59 herein. # * (b) 20 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)60 herein. * (b) 21 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. See Exhibit 10(a)61 herein. * (b) 22 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. See Exhibit 10(a)62 herein. * (b) 23 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)63 herein. # * (b) 24 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)66 herein. # (b) 25 - The Southern Company Outside Directors Pension Plan. See Exhibit 10(a)65 herein. # (b) 26 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. See Exhibit 10(a)68 herein. (b) 27 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. See Exhibit 10(a)70 herein. * (b) 28 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. See Exhibit 10(a)71 herein. # * (b) 29 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)72 herein. # (b) 30 - The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)73 herein. # * (b) 31 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)74 herein. # * (b) 32 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)69 herein. E-20 # (b) 33 - The Southern Company Performance Sharing Plan effective January 1, 1997. See Exhibit 10(a)75 herein. # * (b) 34 - Amendments One through Six to The Southern Company Performance Sharing Plan. See Exhibit 10(a)76 herein. # * (b) 35 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)77 herein. * (b) 36 - Southern Company Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)78 herein. # * (b) 37 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)79 herein. # * (b) 38 - Change in Control Agreement between SOUTHERN, ALABAMA and Banks Harry Farris. See Exhibit 10(a)88 herein. # * (b) 39 - Change in Control Agreement between SOUTHERN, ALABAMA and Elmer B. Harris. See Exhibit 10(a)91 herein. # * (b) 40 - Supplemental Pension Agreement between ALABAMA, GULF and Travis J. Bowden. GEORGIA (c) 1 - Service contracts dated as of January 1, 1984, between SCS and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SEGCO and SOUTHERN and Amendment No. 1 dated as of September 6, 1985, between SCS and SOUTHERN. See Exhibit 10(a)1 herein. (c) 2 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)6 herein. (c) 3 - Agreement dated as of January 27, 1959, Amendment No. 1 dated as of October 27, 1982 and Amendment No. 2 dated November 4, 1993 and effective June 1, 1994, among SEGCO, ALABAMA and GEORGIA. See Exhibit 10(a)7 herein. (c) 4 - Joint Committee Agreement dated as of August 27, 1976, among GEORGIA, OPC, MEAG and Dalton. See Exhibit 10(a)8 herein. (c) 5 - Edwin I. Hatch Nuclear Plant Purchase and Ownership Participation Agreement dated as of January 6, 1975, between GEORGIA and OPC. See Exhibit 10(a)9 herein. (c) 6 - Edwin I. Hatch Nuclear Plant Operating Agreement dated as of January 6, 1975, between GEORGIA and OPC. See Exhibit 10(a)10 herein. E-21 (c) 7 - Revised and Restated Integrated Transmission System Agreement dated as of November 12, 1990, between GEORGIA and OPC. See Exhibit 10(a)11 herein. (c) 8 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of March 26, 1976, between GEORGIA and OPC. See Exhibit 10(a)12 herein. (c) 9 - Plant Hal Wansley Operating Agreement dated as of March 26, 1976, between GEORGIA and OPC. See Exhibit 10(a)13 herein. (c) 10 - Edwin I. Hatch Nuclear Plant Purchase and Ownership Participation Agreement dated as of August 27, 1976, between GEORGIA, MEAG and Dalton. See Exhibit 10(a)14 herein. (c) 11 - Edwin I. Hatch Nuclear Plant Operating Agreement dated as of August 27, 1976, between GEORGIA, MEAG and Dalton. See Exhibit 10(a)15 herein. (c) 12 - Alvin W. Vogtle Nuclear Units Number One and Two Purchase and Ownership Participation Agreement dated as of August 27, 1976 and Amendment No. 1 dated as of January 18, 1977, among GEORGIA, OPC, MEAG and Dalton. See Exhibit 10(a)16 herein. (c) 13 - Alvin W. Vogtle Nuclear Units Number One and Two Operating Agreement dated as of August 27, 1976, among GEORGIA, OPC, MEAG and Dalton. See Exhibit 10(a)17 herein. (c) 14 - Alvin W. Vogtle Nuclear Units Number One and Two Purchase, Amendment, Assignment and Assumption Agreement dated as of November 16, 1983, between GEORGIA and MEAG. See Exhibit 10(a)18 herein. (c) 15 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of August 27, 1976, between GEORGIA and MEAG. See Exhibit 10(a)19 herein. (c) 16 - Plant Hal Wansley Operating Agreement dated as of August 27, 1976, between GEORGIA and MEAG. See Exhibit 10(a)20 herein. (c) 17 - Nuclear Operating Agreement between Southern Nuclear and GEORGIA dated as of July 1, 1993. See Exhibit 10(a)21 herein. (c) 18 - Pseudo Scheduling and Services Agreement between GEORGIA and MEAG dated as of April 8, 1997. See Exhibit 10(a)22 herein. (c) 19 - Plant Hal Wansley Purchase and Ownership Participation Agreement dated as of April 19, 1977, between GEORGIA and Dalton. See Exhibit 10(a)23 herein. (c) 20 - Plant Hal Wansley Operating Agreement dated as of April 19, 1977, between GEORGIA and Dalton. See Exhibit 10(a)24 herein. E-22 (c) 21 - Plant Robert W. Scherer Units Number One and Two Purchase and Ownership Participation Agreement dated as of May 15, 1980, Amendment No. 1 dated as of December 30, 1985, Amendment No. 2 dated as of July 1, 1986, Amendment No. 3 dated as of August 1, 1988 and Amendment No. 4 dated as of December 31, 1990, among GEORGIA, OPC, MEAG and Dalton. See Exhibit 10(a)25 herein. (c) 22 - Plant Robert W. Scherer Units Number One and Two Operating Agreement dated as of May 15, 1980, Amendment No. 1 dated as of December 3, 1985 and Amendment No. 2 dated as of December 31, 1990, among GEORGIA, OPC, MEAG and Dalton. See Exhibit 10(a)26 herein. (c) 23 - Plant Robert W. Scherer Purchase, Sale and Option Agreement dated as of May 15, 1980, between GEORGIA and MEAG. See Exhibit 10(a)27 herein. (c) 24 - Plant Robert W. Scherer Purchase and Sale Agreement dated as of May 16, 1980, between GEORGIA and Dalton. See Exhibit 10(a)28 herein. (c) 25 - Plant Robert W. Scherer Unit Number Three Purchase and Ownership Participation Agreement dated as of March 1, 1984, Amendment No. 1 dated as of July 1, 1986 and Amendment No. 2 dated as of August 1, 1988, between GEORGIA and GULF. See Exhibit 10(a)29 herein. (c) 26 - Plant Robert W. Scherer Unit Number Three Operating Agreement dated as of March 1, 1984, between GEORGIA and GULF. See Exhibit 10(a)30 herein. (c) 27 - Plant Robert W. Scherer Unit No. Four Amended and Restated Purchase and Ownership Participation Agreement by and among GEORGIA, FP&L and JEA dated as of December 31, 1990 and Amendment No. 1 dated as of June 15, 1994. See Exhibit 10(a)31 herein. (c) 28 - Plant Robert W. Scherer Unit No. Four Operating Agreement by and among GEORGIA, FP&L and JEA dated as of December 31, 1990 and Amendment No. 1 dated as of June 15, 1994. See Exhibit 10(a)32 herein. (c) 29 - Amended and Restated Unit Power Sales Agreement dated February 18, 1982 and Amendment No. 1 dated May 18, 1982, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)33 herein. (c) 30 - Amended and Restated Unit Power Sales Agreement dated May 19, 1982, Amendment No. 1, dated August 30, 1984 and Amendment No. 2 dated October 30, 1987, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)34 herein. (c) 31 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)35 herein. (c) 32 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)36 herein. E-23 (c) 33 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)37 herein. (c) 34 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)38 herein. (c) 35 - Power Purchase Agreement dated as of December 3, 1993 between GEORGIA and FPC. See Exhibit 10(a)57 herein. (c) 36 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)39 herein. (c) 37 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)40 herein. (c) 38 - Rocky Mountain Pumped Storage Hydroelectric Project Ownership Participation Agreement dated November 18, 1988, between OPC and GEORGIA. See Exhibit 10(a)41 herein. (c) 39 - Rocky Mountain Pumped Storage Hydroelectric Project Operating Agreement dated November 18, 1988, between OPC and GEORGIA. See Exhibit 10(a)42 herein. (c) 40 - Form of commitment agreement, Amendment No. 1 and Amendment No. 2 with respect to SOUTHERN, ALABAMA, GEORGIA and MISSISSIPPI revolving credits. See Exhibit 10(a)46 herein. (c) 41 - Block Power Sale Agreement between GEORGIA and OPC dated as of November 12, 1990. See Exhibit 10(a)47 herein. (c) 42 - Revised and Restated Coordination Services Agreement between and among GEORGIA, OPC and Georgia Systems Operations Corporation dated as of September 10, 1997. See Exhibit 10(a)48 herein. (c) 43 - Amended and Restated Nuclear Managing Board Agreement for Plant Hatch and Plant Vogtle among GEORGIA, OPC, MEAG and Dalton dated as of July 1, 1993. See Exhibit 10(a)49 herein. (c) 44 - Integrated Transmission System Agreement, Power Sale and Coordination Umbrella Agreement between GEORGIA and OPC dated as of November 12, 1990. See Exhibit 10(a)50 herein. (c) 45 - Revised and Restated Integrated Transmission System Agreement between GEORGIA and Dalton dated as of December 7, 1990. See Exhibit 10(a)51 herein. E-24 (c) 46 - Revised and Restated Integrated Transmission System Agreement between GEORGIA and MEAG dated as of December 7, 1990. See Exhibit 10(a)52 herein. (c) 47 - Plant Scherer Managing Board Agreement dated as of December 31, 1990 among GEORGIA, OPC, MEAG, Dalton, GULF, FP&L and JEA. See Exhibit 10(a)54 herein. (c) 48 - Plant McIntosh Combustion Turbine Purchase and Ownership Participation Agreement between GEORGIA and SAVANNAH dated as of December 15, 1992. See Exhibit 10(a)55 herein. (c) 49 - Plant McIntosh Combustion Turbine Operating Agreement between GEORGIA and SAVANNAH dated as of December 15, 1992. See Exhibit 10(a)56 herein. (c) 50 - Certificate of Limited Partnership of Georgia Power Capital. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit B.) (c) 51 - Amended and Restated Agreement of Limited Partnership of Georgia Power Capital, dated as of December 1, 1994. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit C.) (c) 52 - Action of General Partner of Georgia Power Capital creating the Series A Preferred Securities. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit D.) (c) 53 - Guarantee Agreement of GEORGIA dated as of December 1, 1994, for the benefit of the holders from time to time of the Series A Preferred Securities. (Designated in Certificate of Notification, File No. 70-8461, as Exhibit G.) # * (c) 54 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)59 herein. # * (c) 55 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)60 herein. * (c) 56 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. See Exhibit 10(a)61 herein. * (c) 57 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. See Exhibit 10(a)62 herein. * (c) 58 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)63 herein. # * (c) 59 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)66 herein. E-25 # (c) 60 - The Southern Company Outside Directors Pension Plan. See Exhibit 10(a)65 herein. # (c) 61 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. See Exhibit 10(a)68 herein. (c) 62 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. See Exhibit 10(a)70 herein. * (c) 63 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. See Exhibit 10(a)71 herein. # * (c) 64 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)72 herein. # (c) 65 - The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)73 herein. # * (c) 66 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)74 herein. # * (c) 67 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)69 herein. # (c) 68 - The Southern Company Performance Sharing Plan effective January 1, 1997. See Exhibit 10(a)75 herein. # * (c) 69 - Amendments One through Six to The Southern Company Performance Sharing Plan. See Exhibit 10(a)76 herein. # * (c) 70 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)77 herein. * (c) 71 - Southern Company Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)78 herein. # * (c) 72 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)79 herein. # * (c) 73 - Deferred Compensation Agreement between SOUTHERN, GEORGIA and Henry Allen Franklin. See Exhibit 10(a)80 herein. # * (c) 74 - Deferred Compensation Agreement between SOUTHERN, GEORGIA and Warren Y. Jobe. See Exhibit 10(a)82 herein. # * (c) 75 - Change in Control Agreement between SOUTHERN, GEORGIA and Henry Allen Franklin. See Exhibit 10(a)89 herein. # * (c) 76 - Change in Control Agreement between SOUTHERN, GEORGIA and David M. Ratcliffe. See Exhibit 10(a)95 herein. E-26 # * (c) 77 - Supplemental Pension Agreement between GEORGIA and Warren Y. Jobe. GULF (d) 1 - Service contracts dated as of January 1, 1984, between SCS and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SEGCO and SOUTHERN and Amendment No. 1 dated as of September 6, 1985, between SCS and SOUTHERN. See Exhibit 10(a)1 herein. (d) 2 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)6 herein. (d) 3 - Plant Robert W. Scherer Unit Number Three Purchase and Ownership Participation Agreement dated as of March 1, 1984, Amendment No. 1 dated as of July 1, 1986 and Amendment No. 2 dated as of August 1, 1988, between GEORGIA and GULF. See Exhibit 10(a)29 herein. (d) 4 - Plant Robert W. Scherer Unit Number Three Operating Agreement dated as of March 1, 1984, between GEORGIA and GULF. See Exhibit 10(a)30 herein. (d) 5 - Plant Scherer Managing Board Agreement dated as of December 31, 1990 among GEORGIA, OPC, MEAG, Dalton, GULF, FP&L and JEA. See Exhibit 10(a)54 herein. (d) 6 - Amended and Restated Unit Power Sales Agreement dated February 18, 1982 and Amendment No. 1 dated May 18, 1982, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)33 herein. (d) 7 - Amended and Restated Unit Power Sales Agreement dated May 19, 1982, Amendment No. 1 dated August 30, 1984 and Amendment No. 2 dated October 30, 1987, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)34 herein. (d) 8 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)35 herein. (d) 9 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)36 herein. (d) 10 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)37 herein. E-27 (d) 11 - Agreement between GULF and AEC, effective August 1, 1985. (Designated in GULF's Form 10-K for the year ended December 31, 1985, File No. 0-2429, as Exhibit 10(g).) (d) 12 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)38 herein. (d) 13 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)39 herein. (d) 14 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)40 herein. # * (d) 15 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)59 herein. # * (d) 16 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)60 herein. * (d) 17 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. See Exhibit 10(a)61 herein. * (d) 18 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. See Exhibit 10(a)62 herein. * (d) 19 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)63 herein. # * (d) 20 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)66 herein. # (d) 21 - The Southern Company Outside Directors Pension Plan. See Exhibit 10(a)65 herein. # (d) 22 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. See Exhibit 10(a)68 herein. (d) 23 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. See Exhibit 10(a)70 herein. * (d) 24 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. See Exhibit 10(a)71 herein. # * (d) 25 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)77 herein. E-28 * (d) 26 - Southern Company Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)78 herein. # * (d) 27 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)79 herein. # * (d) 28 - Change in Control Agreement between SOUTHERN, GULF and Travis J. Bowden. See Exhibit 10(a)84 herein. # * (d) 29 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)72 herein. # (d) 30 - The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)73 herein. # * (d) 31 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)74 herein. # * (d) 32 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)69 herein. # (d) 33 - The Southern Company Performance Sharing Plan effective January 1, 1997. See Exhibit 10(a)75 herein. # * (d) 34 - Amendments One through Six to The Southern Company Performance Sharing Plan. See Exhibit 10(a)76 herein. # * (d) 35 - Supplemental Pension Agreement between SAVANNAH, GULF and G. Edison Holland, Jr. # * (d) 36 - Supplemental Pension Agreement between ALABAMA, GULF and Travis J. Bowden. See Exhibit 10(b)40 herein. MISSISSIPPI (e) 1 - Service contracts dated as of January 1, 1984, between SCS and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SEGCO and SOUTHERN and Amendment No. 1 dated as of September 6, 1985, between SCS and SOUTHERN. See Exhibit 10(a)1 herein. (e) 2 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)6 herein. (e) 3 - Amended and Restated Unit Power Sales Agreement dated February 18, 1982 and Amendment No. 1 dated May 18, 1982, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)33 herein. E-29 (e) 4 - Amended and Restated Unit Power Sales Agreement dated May 19, 1982, Amendment No. 1 dated August 30, 1984, and Amendment No. 2 dated October 30, 1987, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI and SCS. See Exhibit 10(a)34 herein. (e) 5 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)35 herein. (e) 6 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)36 herein. (e) 7 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)37 herein. (e) 8 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)38 herein. (e) 9 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)39 herein. (e) 10 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)40 herein. (e) 11 - Transmission Facilities Agreement dated February 25, 1982, Amendment No. 1 dated May 12, 1982 and Amendment No. 2 dated December 6, 1983, between Gulf States and MISSISSIPPI. See Exhibit 10(a)45 herein. (e) 12 - Form of commitment agreement, Amendment No. 1 and Amendment No. 2 with respect to SOUTHERN, ALABAMA, GEORGIA and MISSISSIPPI revolving credits. See Exhibit 10(a)46 herein. (e) 13 - Long Term Transmission Service Agreement between Entergy Power, Inc. and ALABAMA, MISSISSIPPI and SCS. See Exhibit 10(a)53 herein. # * (e) 14 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)59 herein. # * (e) 15 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)60 herein. * (e) 16 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. See Exhibit 10(a)61 herein. E-30 * (e) 17 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. See Exhibit 10(a)62 herein. * (e) 18 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)63 herein. # * (e) 19 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)66 herein. # (e) 20 - The Southern Company Outside Directors Pension Plan. See Exhibit 10(a)65 herein. # (e) 21 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. See Exhibit 10(a)68 herein. (e) 22 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. See Exhibit 10(a)70 herein. * (e) 23 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. See Exhibit 10(a)71 herein. # * (e) 24 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)77 herein. * (e) 25 - Southern Company Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)78 herein. # * (e) 26 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)79 herein. # * (e) 27 - Change in Control Agreement between SOUTHERN, MISSISSIPPI and Dwight H. Evans. See Exhibit 10(a)87 herein. # * (e) 28 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)72 herein. # (e) 29 - The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)73 herein. # * (e) 30 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)74 herein. # * (e) 31 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)69 herein. # (e) 32 - The Southern Company Performance Sharing Plan effective January 1, 1997. See Exhibit 10(a)75 herein. E-31 # * (e) 33 - Amendments One through Six to The Southern Company Performance Sharing Plan. See Exhibit 10(a)76 herein. SAVANNAH (f) 1 - Service contract dated as of March 3, 1988, between SCS and SAVANNAH. See Exhibit 10(a)3 herein. (f) 2 - Interchange contract dated October 28, 1988, effective January 1, 1989, between ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)6 herein. (f) 3 - Unit Power Sales Agreement dated July 19, 1988, between FPC and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)35 herein. (f) 4 - Amended Unit Power Sales Agreement dated July 20, 1988, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)36 herein. (f) 5 - Amended Unit Power Sales Agreement dated August 17, 1988, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)37 herein. (f) 6 - Unit Power Sales Agreement dated December 8, 1990, between Tallahassee and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)38 herein. (f) 7 - Transition Energy Agreement dated December 31, 1990, between JEA and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)39 herein. (f) 8 - Transition Energy Agreement dated December 31, 1990, between FP&L and ALABAMA, GEORGIA, GULF, MISSISSIPPI, SAVANNAH and SCS. See Exhibit 10(a)40 herein. (f) 9 - Plant McIntosh Combustion Turbine Purchase and Ownership Participation Agreement between GEORGIA and SAVANNAH dated as of December 15, 1992. See Exhibit 10(a)55 herein. (f) 10 - Plant McIntosh Combustion Turbine Operating Agreement between GEORGIA and SAVANNAH dated December 15, 1992. See Exhibit 10(a)56 herein. # * (f) 11 - The Southern Company Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)59 herein. # * (f) 12 - The Southern Company Executive Productivity Improvement Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)60 herein. E-32 * (f) 13 - The Southern Company Employee Savings Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Three. See Exhibit 10(a)61 herein. * (f) 14 - The Southern Company Employee Stock Ownership Plan, Amended and Restated effective January 1, 1997 and all amendments thereto through Amendment Number Two. See Exhibit 10(a)62 herein. # (f) 15 - Supplemental Executive Retirement Plan of SAVANNAH, Amended and Restated effective January 1, 1996 and all amendments thereto through Amendment Number Two. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1995, File No. 1-5072, as Exhibit 10(f)17, in SAVANNAH's Form 10-K for the year ended December 31, 1996, File No. 1-5072, as Exhibit 10(f)20 and in SAVANNAH's Form 10-K for the year ended December 31, 1997, File No. 1-5072, as Exhibit 10(f)18.) # (f) 16 - Deferred Compensation Plan for Key Employees of SAVANNAH and all amendments thereto through Amendment Number Two. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1994, File No. 1-5072, as Exhibit 10(f)17, in SAVANNAH's Form 10-K for the year ended December 31, 1995, File No. 1-5072, as Exhibit 10(f)19 and in SAVANNAH's Form 10-K for the year ended December 31, 1996, File No. 1-5072, as Exhibit 10(f)22.) # * (f) 17 - Amendment Number Three to the Deferred Compensation Plan for Key Employees of SAVANNAH. * (f) 18 - The Southern Company Performance Pay Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)63 herein. # (f) 19 - The Southern Company Outside Directors Pension Plan. See Exhibit 10(a)65 herein. # (f) 20 - Deferred Compensation Plan for Directors of SAVANNAH. (Designated in SAVANNAH's Form 10-K for the year ended December 31, 1997, File No. 1-5072, as Exhibit 10(f)23.) # (f) 21 - Outside Directors Stock Plan for Subsidiaries of The Southern Company and First Amendment thereto. See Exhibit 10(a)68 herein. (f) 22 - The Southern Company Pension Plan, effective as of January 1, 1997 and Amendment Number One thereto. See Exhibit 10(a)70 herein. * (f) 23 - Amendment Number Two and Amendment Number Three to The Southern Company Pension Plan. See Exhibit 10(a)71 herein. # * (f) 24 - The Southern Company Supplemental Benefit Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)77 herein. * (f) 25 - Southern Company Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)78 herein. E-33 # * (f) 26 - Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. See Exhibit 10(a)79 herein. # * (f) 27 - Change in Control Agreement between SOUTHERN, SAVANNAH and G. Edison Holland, Jr. See Exhibit 10(a)92 herein. # * (f) 28 - The Southern Company Deferred Compensation Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)66 herein. # * (f) 29 - The Southern Company Performance Stock Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)72 herein. # (f) 30 - The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)73 herein. # * (f) 31 - Amendment Number One and Amendment Number Two to The Southern Company Supplemental Executive Retirement Plan. See Exhibit 10(a)74 herein. # * (f) 32 - The Southern Company Performance Dividend Plan, Amended and Restated effective January 1, 1998. See Exhibit 10(a)69 herein. # (f) 33 - The Southern Company Performance Sharing Plan effective January 1, 1997. See Exhibit 10(a)75 herein. # * (f) 34 - Amendments One through Six to The Southern Company Performance Sharing Plan. See Exhibit 10(a)76 herein. # * (f) 35 - Supplemental Pension Agreement between SAVANNAH, GULF and G. Edison Holland, Jr. See Exhibit 10(d)35 herein. (21) *Subsidiaries of Registrants - Contained herein at page IV-5. (23) Consents of Experts and Counsel SOUTHERN * (a) - The consent of Arthur Andersen LLP is contained herein at page IV-6. ALABAMA * (b) - The consent of Arthur Andersen LLP is contained herein at page IV-7. GEORGIA * (c) - The consent of Arthur Andersen LLP is contained herein at page IV-8. E-34 GULF * (d) - The consent of Arthur Andersen LLP is contained herein at page IV-9. MISSISSIPPI * (e) - The consent of Arthur Andersen LLP is contained herein at page IV-10. SAVANNAH * (f) - The consent of Arthur Andersen LLP is contained herein at page IV-11. (24) Powers of Attorney and Resolutions SOUTHERN * (a) - Power of Attorney and resolution. ALABAMA * (b) - Power of Attorney and resolution. GEORGIA * (c) - Power of Attorney and resolution. GULF * (d) - Power of Attorney and resolution. MISSISSIPPI * (e) - Power of Attorney and resolution. SAVANNAH * (f) - Power of Attorney and resolution. (27) Financial Data Schedule SOUTHERN (a) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 1-3526, as Exhibit 27.) ALABAMA (b) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 1-3164, as Exhibit 27.) E-35 GEORGIA (c) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 1-6468, as Exhibit 27.) GULF (d) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 0-2429, as Exhibit 27.) MISSISSIPPI (e) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 0-6849, as Exhibit 27.) SAVANNAH (f) - Financial Data Schedule. (Designated in Form 8-K dated February 10, 1999, File No. 1-5072, as Exhibit 27.) E-36 EX-3.F.2 2 EXHIBIT 3(f)2 TO ALL TO WHOM THESE PRESENTS MAY COME - GREETING: WHEREAS, SAVANNAH ELECTRIC AND POWER COMPANY, a corporation created and existing under the laws of Georgia, has filed in this office in terms of law a petition asking that its charter be amended to eliminate therefrom in their entirety (i) Section 4.04(B)(i), a provision restricting the amount of securities representing unsecured indebtedness issuable by the Company, (ii) Section 4.04(B)(ii), a provision which requires the vote of the holders of at least a majority of the total voting power of the Company's outstanding preferred stock to approve the sale of all or substantially all of the Company's property and mergers or consolidations that have not been approved under the Public Utility Holding Company Act of 1935, as amended, and (iii) Section 4.06 (except the first sentence therein), a provision restricting the ability of the Company to pay dividends on its common stock in the event that its common equity capitalization falls below certain levels; and WHEREAS, Savannah Electric and Power Company has complied with all the requirements of the law in such cases made and provided. THEREFORE, the State of Georgia hereby amends the charter of said Savannah Electric and Power Company so as to eliminate Sections 4.04(B)(i), 4.04(B)(ii) and 4.06 (except the first sentence therein) of its charter. IN WITNESS WHEREOF, these presents have been signed by the Secretary of State and the great seal has been attached hereto at the State Capitol in Atlanta, Georgia, on this 2nd day of December, 1998. Secretary of State PETITION FOR TWENTY-FIFTH AMENDMENT TO CHARTER TO THE SECRETARY OF STATE OF THE STATE OF GEORGIA: The petition of Savannah Electric and Power Company, a corporation of Chatham County, in said State, respectfully shows: I. It is a street and suburban railway company, with authority to do an electric light, heat and power business. Its Charter was granted by the Secretary of State of the State of Georgia on August 21, 1921, for the term of One Hundred and One Years (101 years), with the right of renewal and continuance thereafter as may be provided by law, upon a petition duly filed and pursuant to an Act of the General Assembly of the State of Georgia approved December 17, 1892, and acts amendatory thereof, and was amended by certificates issued by the Secretary of State on the following dates: (1) September 29, 1924, (2) November 15, 1926, (3) July 11, 1930, (4) June 19, 1942, (5) July 13, 1945, (6) December 31, 1945, (7) November 18, 1948, (8) April 20, 1953, (9) November 25, 1953, (10) May 23, 1954, (11) October 13, 1954, (12) April 7, 1955, (13) March 5, 1957, (14) April 17, 1957, (15) April 9, 1964, (16) March 3, 1970, (17) October 23, 1972, (18) October 15, 1975, (19) January 12, 1982, (20) August 7, 1984, (21) August 6, 1986, (22) March 1, 1988, (23) December 9, 1988 and (24) November 10, 1993. II. The authorized and outstanding shares of capital stock of the Company outstanding at November 23, 1998, the date of the Written Consent of the Sole Shareholder hereinafter referred to, are as follows:
Authorized Outstanding Kind of Stock Number of Shares Number of Shares - - - - - - - ------------- ---------------- ---------------- Undesignated Preferred Stock, Par Value $100 Per Share 125,000 0 Undesignated Preference Stock, Par Value $5 Per Share 2,000,000 0 Undesignated Class A Convertible, Par Value $5 Per Share 500,000 0 Common Stock, Par Value $5 Per Share 16,000,000 10,844,635
III. The Company desires an amendment to its charter to eliminate therefrom in their entirety (i) Section 4.04(B)(i), a provision restricting the amount of securities representing unsecured indebtedness issuable by the Company, (ii) Section 4.04(B)(ii), a provision which requires the vote of the holders of at least a majority of the total voting power of the Company's outstanding preferred stock to approve the sale of all or substantially all of the Company's property and mergers or consolidations that have not been approved under the Public Utility Holding Company Act of 1935, as amended, and (iii) Section 4.06 (except the first sentence therein), a provision restricting the ability of the Company to pay dividends on its common stock in the event that its common equity capitalization falls below certain levels. IV. This petition for the proposed amendment has been duly authorized by the action of more than two-thirds in amount of the entire capital stock of the Company outstanding and entitled by the terms of its charter or state law to vote thereon by Written Consent of the Sole Shareholder of the Company. The affirmative vote of (i) the holders of record of at least 66-2/3% of the shares of common stock of the Company outstanding and entitled to vote and (ii) the holders of at least 66-2/3% of the total number of shares of preferred stock outstanding was required to adopt the foregoing amendment. There were 10,844,635 shares of common stock of the Company outstanding and entitled to vote thereon of which all were voted in favor of the foregoing amendment. There were no other outstanding shares of capital stock of the Company. V. Petitioner respectfully presents this, its petition for an amendment to its charter, as heretofore amended, and asks that the same be granted as herein prayed for and that all other rights, powers and privileges contained in its original charter, as heretofore amended, and such as are incident to like corporations under the laws of Georgia, do continue and remain of force and be approved and confirmed. SAVANNAH ELECTRIC AND POWER COMPANY By: _____________________ Title: Attest: - - - - - - - ------------------------- Title: Date: November 23, 1998 CERTIFIED ABSTRACT FROM THE MINUTES OF THE BOARD OF DIRECTORS OF SAVANNAH ELECTRIC AND POWER COMPANY WITH RESPECT TO PETITION FOR TWENTY-FIFTH AMENDMENT TO ITS CHARTER On motion, duly made and seconded, the following resolution was unanimously adopted by the Board of Directors of the Company: RESOLVED: That it is desirable and in the best interests of the Company to seek the approval of the Company's shareholders to amend the Company's charter, as heretofore amended (the "Charter"), in order to eliminate in their entirety (i) Section 4.04(B)(i), a provision restricting the amount of securities representing unsecured indebtedness issuable by the Company, (ii) Section 4.04(B)(ii), a provision which requires the vote of the holders of at least a majority of the total voting power of the Company's outstanding preferred stock to approve the sale of all or substantially all of the Company's property and mergers or consolidations that have not been approved under the Public Utility Holding Company Act of 1935, as amended, and (iii) Section 4.06 (except the first sentence therein), a provision restricting the ability of the Company to pay dividends on its common stock in the event that its common equity capitalization falls below certain levels, and this Board of Directors does hereby authorize and approve such amendment; RESOLVED FURTHER: That, if the holder of record of the Company's outstanding common stock votes affirmatively for the proposal to amend the Charter, the President or any Vice President and the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company be and hereby are authorized and directed to make application to the Secretary of State of the State of Georgia that the Charter of Savannah Electric and Power Company, dated August 5, 1921, as heretofore amended by certificates of the Honorable Secretary of Sate dated (1) September 29, 1924, (2) November 15, 1926, (3) July 11, 1930, (4) June 19, 1942, (5) July 13, 1945, (6) December 31, 1945, (7) November 18, 1948, (8) April 20, 1953, (9) November 25, 1953, (10) May 23, 1954, (11) October 13, 1954, (12) April 7, 1955, (13) March 5, 1957, (14) April 17, 1957, (15) April 9, 1964, (16) March 3, 1970, (17) October 23, 1972, (18) October 15, 1975, (19) January 12, 1982, (20) August 7, 1984, (21) August 6, 1986, (22) March 1, 1988, (23) December 9, 1988 and (24) November 10, 1993, be further amended to eliminate Sections 4.04(B)(i), 4.04(B)(ii) and 4.06 (except the first sentence therein) (all other terms and provisions of the Charter to remain unchanged); and that the officers of the Company be and they are hereby authorized and empowered to take all such other action as any one of them may deem necessary or desirable to effect said amendment; RESOLVED FURTHER: That the Secretary of the Company shall certify under the seal of the Company a copy of this resolution and attach it to the petition for twenty-fifth amendment to the Charter to be filed with the Secretary of State of the State of Georgia; and RESOLVED FURTHER: That the officers of the Company be, and they hereby are, authorized and directed to do and perform all such acts, matters and things as may be necessary or appropriate to carry out the proposals described in the foregoing resolutions in the manner provided by law and otherwise to consummate the transactions contemplated thereby. I, Nancy Frankenhauser, Secretary of Savannah Electric and Power Company, do hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Savannah Electric and Power Company, duly held on October 20, 1998, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Given under my official signature and the seal of said Company this 23rd day of November, 1998. Secretary (SEAL) CERTIFIED ABSTRACT FROM THE WRITTEN CONSENT OF THE SOLE SHAREHOLDER OF SAVANNAH ELECTRIC AND POWER COMPANY WITH RESPECT TO PETITION FOR TWENTY-FIFTH AMENDMENT TO ITS CHARTER The following resolution was adopted by written consent of the sole shareholder of the outstanding shares of the Company's common stock: RESOLVED: That there be and hereby is approved and adopted an amendment to the Charter of Savannah Electric and Power (the "Company") to remove therefrom (i) Section 4.04(B)(i), a provision restricting the amount of securities representing unsecured indebtedness issuable by the Company, (ii) Section 4.04(B)(ii), a provision which requires the vote of the holders of at least a majority of the total voting power of the Company's outstanding preferred stock to approve the sale of all or substantially all of the Company's property and mergers or consolidations that have not been approved under the Public Utility Holding Company Act of 1935, as amended, and (iii) Section 4.06 (except the first sentence therein), a provision restricting the ability of the Company to pay dividends on its common stock in the event that its common equity capitalization falls below certain levels. I, Nancy Frankenhauser, Secretary of Savannah Electric and Power Company, do hereby certify that the foregoing is a true and correct copy of the resolution duly and regularly adopted by written consent of the sole shareholder of Savannah Electric and Power Company, effective November 23, 1998, and that said resolution has not since been rescinded but is still in full force and effect. Given under my official signature and the seal of said Company this 23rd day of November, 1998. Secretary (SEAL) EX-10.A.59 3 EXHIBIT 10(a)59 SOUTHERN COMPANY PRODUCTIVITY IMPROVEMENT PLAN AMENDED AND RESTATED TROUTMAN SANDERS LLP NationsBank Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, Georgia 30308 (404) 885-3000 Effective January 1, 1998 SOUTHERN COMPANY PRODUCTIVITY IMPROVEMENT PLAN Amended and Restated Purposes The purposes of the Amended and Restated Southern Company Productivity Improvement Plan are to provide a financial incentive which will focus the efforts of participants on areas that will have a direct and significant influence on corporate performance and to provide the potential for levels of compensation that will enhance the Employing Companies' abilities to attract, retain and motivate key management employees. In order to achieve these objectives, the Plan will be based upon corporate performance. The amendment and restatement shall be effective as of January 1, 1998. ARTICLE I Definitions For purposes of the Plan, the following terms shall have the following meanings unless a different meaning is plainly required by the context: 1.1 "Annual Salary" shall mean base salary or wages paid to a Participant before deductions for taxes, social security, etc., including all amounts contributed by an Employing Company to The Southern Electric System Flexible Benefits Plan or The Southern Company Flexible Benefits Plan on behalf of a Participant, amounts contributed by any Employing Company to The Southern Company Employee Savings Plan as Elective Employer Contributions, as said term is defined in Section 4.1 therein, pursuant to the Participant's exercise of his deferral option made in accordance with Section 401(k) of the Internal Revenue Code, and amounts contributed to the Southern Company Deferred Compensation Plan, but excluding all awards under The Southern Company Performance Pay Plan and the Southern Company Productivity Improvement Plan, overtime pay, shift differential and substitution pay. 1.2 "Average Common Equity" shall mean the total average common equity of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Nuclear Operating Company and Southern Company Services, Inc. 1.3 "Average Return on Common Equity" for a Computation Period shall mean the result obtained by (a) dividing Core Net Income by Average Common Equity for each year in the Computation Period, (b) adding the result, and (c) dividing the sum by the number of years in the Computation Period. 1.4 "Award" shall mean the award opportunity multiplied by the performance unit value determined under Section 3.2 of the Plan. 1.5 "Award Opportunity" shall mean the target award opportunity determined under Section 3.1 of the Plan. 1.6 "Award Percentage" shall mean the award percentage set forth on Exhibit B hereto. Such Exhibit may be modified from time to time by the Committee to reflect changes in Exhibit C hereto. 1.7 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 1.8 "Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 1.9 "Business Combination" shall mean a reorganization, merger or consolidation or sale of Southern Company or a sale of all or substantially all of Southern Company's assets. 1.10 "Chief Executive Officer" shall mean the individual designated as such by the Board of Directors of an Employing Company and of Southern Company. 1.11 "Committee" shall mean the individuals then serving in the positions of Director, Compensation and Benefits of Southern Company; Senior Vice President, Human Resources of Southern Company; and Vice President & Comptroller of Southern Company or any other position or positions that succeed to the duties of the foregoing positions. 1.12 "Common Stock" shall mean the common stock of Southern Company. 1.13 "Computation Period" shall mean a four-year period commencing on the first day of the initial year of participation, and thereafter, it shall mean a four-year period commencing on the first day of January each year. 1.14 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. 1.15 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 1.16 "Core Business" shall mean the operations of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Nuclear Operating Company and the operations of Southern Company Services, Inc. with respect to such companies. 1.17 "Core Net Income" shall mean the combined net income (or net loss) of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company and The Southern Company "corporate", provided, that the net income (or net loss) of The Southern Company "corporate" shall be adjusted by eliminating interest expense not attributable to Core Business and one-half of The Southern Company's "corporate" administration and general expenses. 1.18 "Employee" shall mean any person who is currently employed by an Employing Company but shall not include (a) any individual who is eligible to participate in the Southern Company Executive Productivity Improvement Plan or (b) any person who is eligible to participate in any incentive compensation program maintained by an Employing Company that specifically provides that an eligible employee under such program shall not also be entitled to receive Awards under this Plan. 1.19 "Employing Company" shall mean Southern Company Services, Inc., or any affiliate or subsidiary (direct or indirect) of 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. 1.20 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.21 "Grade Level" shall mean the evaluation assigned under the job evaluation system as of December 31 of each calendar year. 1.22 "Grade Level Value" shall mean the assigned dollar value within the Annual Salary range for a Grade Level in a Computation Period, upon which Awards are based. 1.23 "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. 1.24 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern Company's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 1.25 "Non-Adopting Company" shall mean any subsidiary or affiliate of Southern Company which is not an Employing Company. 1.26 "Participant" shall mean all Employees described in Section 2.1 hereof. 1.27 "Payment Date" shall mean the date that the check evidencing the Award is endorsed by an authorized person of an Employing Company. 1.28 "Peer Group Companies" shall mean the companies set forth on Exhibit C attached hereto and as may be revised from time to time by the Committee to reflect mergers, acquisitions, reorganizations, etc. of such companies. 1.29 "Plan" shall mean the Southern Company Productivity Improvement Plan, as described herein or as may be amended from time to time. 1.30 "Plan Termination" shall mean the termination of the Plan by Southern Company or an Employing Company following a Southern Change in Control unless an equitable arrangement (embodied in an ongoing substitute or replacement plan) has been made with respect to the Plan in connection with the Southern Change in Control. For purposes of this Plan, an ongoing substitute or alternative plan shall be considered an "equitable arrangement" if a nationally recognized compensation consulting firm chosen by the Committee opines in writing that, on aggregate, the post-Southern Change in Control plan is an equitable substitute or replacement of the pre-Southern Change in Control Plan, and that such substitute or alternative plan provides substantially similar target opportunities and a substantially similar level of performance difficulty. 1.31 "Prior Plan" shall mean the Plan as amended and restated effective January 1, 1995. 1.32 "Southern Board" shall mean the Board of Directors of The Southern Company. 1.33 "Southern Change in Control" shall mean any of the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern Company's Voting Securities; provided, however, that for purposes of this subsection (a), the following acquisitions of Southern Company's Voting Securities shall not constitute a Change in Control: (i) any acquisition directly from Southern Company, (ii) any acquisition by Southern Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company, (iv) any acquisition by a qualified pension plan or publicly held mutual fund, (v) any acquisition by an Employee or Group composed exclusively of Employees, or (vi) any Business Combination which would not otherwise constitute a Change in Control because of the application of clauses (i), (ii) and (iii) of Section 1.33(c); (b) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (c) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (i) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern Company's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern Company's Voting Securities or all or substantially all of Southern Company's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Southern Company's Voting Securities, (ii) no Person (excluding any corporation resulting from such Business Combination, any qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern Company, its subsidiaries or Surviving Company) holds Beneficially Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of the Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. 1.34 "Southern Company" shall mean The Southern Company. 1.35 "Southern Termination" shall mean the following: (a) The Consummation of a reorganization, merger or consolidation of Southern Company under circumstances where either (i) Southern Company is not the surviving corporation or (ii) Southern Company's Voting Securities are no longer publicly traded; (b) The Consummation of a sale or other disposition of all or substantially all of Southern Company's assets; or (c) The Consummation of an acquisition by any Person of Beneficial Ownership of all of Southern Company's Voting Securities such that Southern Company's Voting Securities are no longer publicly traded; in each case under circumstances where the Surviving Company or the company acquiring Southern Company's assets or Voting Securities does not adopt an "equitable arrangement" (as defined in Section 1.30 hereof) in the form of a replacement plan. 1.36 "Subsidiary Change in Control" shall mean the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Subsection 1.36, any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, any publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company shall not constitute a Change in Control. (b) Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Company Controls the corporation surviving or resulting from such Employing Company Business Combination, or (c) Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern Company does not Control. 1.37 "Subsidiary Employee" shall mean an Employee of an Employing Company which has undergone a Subsidiary Change in Control. 1.38 "Termination for Cause" or "Cause" shall mean the termination of a Participant's employment by an Employing Company under any of the following circumstances: (a) The Participant willfully neglects or refuses to discharge his or her duties to the Employing Company as an employee or refuses to comply with any lawful or reasonable instructions given to him or her by the Employing Company without reasonable excuse; (b) The Participant is guilty of gross misconduct. For purposes of this Plan, the following acts shall constitute gross misconduct: (i) any act involving fraud or dishonesty or breach of appropriate regulations of competent authorities; (ii) the carrying out of any activity or the making of any statement which would prejudice and/or reduce the good name and standing of Southern Company or an Employing Company or would bring Southern Company or an Employing Company any into contempt, ridicule or would reasonably shock or offend any community in which Southern Company or an Employing Company is located; (iii) attendance at work in a state of intoxication or otherwise being found in possession at his or her workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (iv) assault or other act of violence against any employee or other person during the course of the Participant's employment; and (v) conviction of any felony or misdemeanor involving moral turpitude. 1.39 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. Where the context requires, 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 II Participants 2.1 Except as otherwise provided in Section 2.8 hereof, the Participants in the Plan shall be limited to those Employees of the Employing Companies who occupy Grade Level 7 or above (or who are deemed to occupy such Grade Levels under Section 2.6 hereof) for at least thirty-six (36) months of Computation Period which respect to which an Award shall be made and are employed by an Employing Company on the last day of such Computation Period, as well as any other Employee who is so employed and who occupies a grade recommended for inclusion in the Plan by the Chief Executive Officer of an Employing Company with the concurrence of the Chief Executive Officer of the Southern Company, for at least such thirty-six (36) months; provided, however, that any additional Employees who are recommended for inclusion in the Plan by the Chief Executive Officer of an Employing Company with the concurrence of the Chief Executive Officer of Southern Company shall be identified by Grade Level Value and/or title in an exhibit to the Plan each January 1. For purposes of calculating the thirty-six month period referred to in this Section 2.1, an Employee shall be deemed to have occupied a Grade Level of 7 of higher for each month in which such Employee has occupied such Grade Level for fifteen (15) or more days. 2.2 Notwithstanding the provisions of Section 2.1 hereof, any Participant who, for job performance reasons (as determined in the sole discretion of the Committee), vacates an eligible Grade Level in the last calendar year prior to the close of a Computation Period shall forfeit any Award for the Computation Period ending in the year in which such Grade Level is vacated. 2.3 If a Participant's employment with an Employing Company is terminated by reason of death, disability or retirement, such Participant or his or her estate shall be eligible to receive an Award for the Computation Period ending in the year of such death, disability or retirement. For purposes of this Plan, the date of disability or retirement shall be the last day of active service by the Participant and shall not mean any date subsequent to such last date of active service which is deemed to be a retirement or disability date under the terms of any pension, severance, retirement or disability plan or arrangement. Except as provided in Section 2.4 hereof, any Participant who terminates employment with an Employing Company for any other reason shall receive only any unpaid Award for a completed Computation Period and shall not be eligible to receive an Award for the Computation Period ending in the year of such termination of employment, provided, however, that any Participant whose employment is Terminated for Cause shall forfeit any and all unpaid Awards as of the date of termination. 2.4 In the case of a Participant whose employment is transferred from an Employing Company to a Non-Adopting Employer, any Award for any Computation Period not yet closed as of the date of a Participant's transfer shall be paid to the Participant by the Employing Company from which the Participant is transferred on the following basis: (i) 100% of the Award for the Computation Period ending in the year of transfer; (ii) 75% of the Award for the Computation Period ending in the first year following the year of transfer; (iii) 50% of the Award for the Computation Period ending in the second year following the year of transfer; and (iv) 25% of the Award for the Computation Period ending in the third year following the year of transfer. Such transferring Participant shall receive no award for any Computation Period which has not begun on the date of the Participant's transfer or if the Participant shall no longer occupy an eligible Grade Level after such transfer (as determined by the Committee). Any Awards payable under this Section 2.4 shall be based on the weighted average Grade Level at the time of transfer as determined under Section 3.1 hereof. 2.5 In the case of an individual transferring from a Non-Adopting Employer to an Employing Company whose Grade Level and length of service at the Non-Adopting Employer would have caused the Employee to have been a Participant in the Plan if the Non-Adopting Employer were an Employing Company and whose Grade Level after the transfer would enable the Employee to participate in the Plan, such individual shall be deemed to have been employed by an Employing Company while employed with the Non-Adopting Employer and shall, for any Computation Period ending after such transfer, be deemed a Participant in the Plan as if the Non-Adopting Employer were an Employing Company. Any Awards payable under this Section 2.5 shall be based on the weighted average Grade Levels at the Employing Company. 2.6 In the case of an individual who, immediately prior to becoming a Participant was a participant in the Southern Company Executive Productivity Improvement Plan (the "Executive PIP") such individual shall be deemed to have been a Participant in the Plan for each year of any Computation Period in which such Participant was a participant in the Executive PIP. 2.7 The administration of Awards for Participants who move from one Grade Level included in the Plan to another Grade Level included in the Plan shall be based on the Participant's Grade Level Value on the last day of each calendar year of the Computation Period for which an Award is being granted, multiplied by twenty-five percent (25%) for each year (or deemed year) of participation in the Computation Period. The Grade Level Value for additional years of service granted to a Participant under Section 2.8 hereof, shall be the Grade Level Value on such Participant's first day of employment by an Employing Company. 2.8 In the case of an individual who becomes a Participant as a result of becoming a new Employee of an Employing Company subsequent to January 1, 1995, such Participant shall be eligible to participate in the Plan for each Computation Period which ends not less than two (2) years and not greater than four (4) years after becoming a Participant provided such Participant is an Employee as of the last day of the Computation Period and shall have occupied Grade Level 7 or above for at least seventy five percent (75%) of the total number of months such Participant has been an Employee. For purposes of calculating the six month period referred to in this Section 2.8, an Employee shall be deemed to occupy Grade Level 7 or above for each month in which such Employee has occupied such Grade Level for fifteen (15) days or more. ARTICLE III Corporate Financial Performance Award 3.1 The Award Opportunity for each Participant shall be based upon his weighted average Grade Level(s) as of December 31 of each calendar year of the Computation Period with respect to which an Award shall be made and shall range from fifteen percent (15%) to sixty-five percent (65%) of the Grade Level Value held by the Participant at the beginning of each calendar year of a Computation Period. The Award Opportunity for each Grade Level held by a Participant shall be determined in accordance with the chart set forth in Exhibit A herein. Such Exhibit A shall be modified from time to time by the Committee to reflect any changes in Exhibit C hereto. 3.2 Each Award Opportunity shall be multiplied by the Award Percentage set forth in Exhibit B herein, which is based on Southern Company's Average Return on Common Equity ranking during a Computation Period as compared to the average return on common equity ranking of the Peer Group Companies to determine a Participant's Award. The return on common equity of Southern Company Peer Group Companies shall be determined annually by an independent certified public accountant based on generally accepted accounting principles and shall be properly adjusted and annualized by such accountant so that each Peer Group Company's return on common equity may be accurately compared to that of Southern Company. The average return on common equity for each Peer Group Company for a Computation Period under this Section 3.2 shall be determined by (a) calculating the average return on common equity for each company for each year in the Computation Period, (b) adding the average return on common equity calculations for each company all years in the Computation Period; and (c) dividing the total for each company by the number of years in the Computation Period. 3.3 Notwithstanding anything in this Article III to the contrary, Awards for Computation Periods beginning on and before January 1, 1998 shall be the greater of the Award determined under Section 3.1 hereof or the Award determined based upon the Participant's Grade Level Value as of the first day of each such Computation Period. 3.4 Notwithstanding the above provisions, an Award shall not be granted for any Computation Period ending with the calendar year in which the current earnings of Southern Company are less than the amount necessary to fund the dividends on its Common Stock at the rate such dividends were paid for the immediately preceding calendar year. 3.5 In the discretion of the Chief Executive Officer of Southern Company, for purposes of determining the Award for one or more Computation Periods may be calculated without regard to any extraordinary item of income or expense incurred by Southern Company or any Employing Company, provided such determination is made prior to the close of the Computation Period. 3.6 The Awards to the Participants will be paid in cash as soon as is practicable after all evaluations are completed. An Award payment may not be deferred under this Plan. In the event an Award was deferred under the Prior Plan, such deferral shall be governed by the terms of the Prior Plan. ARTICLE IV Change in Control 4.1 Southern Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Plan Termination within the two (2) year period following a Southern Change in Control, each Participant who is an Employee on the date of the Plan Termination shall be entitled to receive within thirty (30) days of the Plan Termination, cash in an amount equal to his Award Opportunity under the Plan for the Computation Period in which the Plan Termination shall have occurred, at the target Award Percentage resulting in a Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Period until the date of the Plan Termination. 4.2 Subsidiary Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Subsidiary Change in Control, each Subsidiary Employee on the date of such Change in Control whose employment is not transferred upon such Subsidiary Change in Control to another Employing Company shall be entitled to receive within thirty (30) days of the Subsidiary Change in Control, cash in an amount equal his Award Opportunity under the Plan for the Computation Period in which the Subsidiary Change in Control shall have occurred, at the target Award Percentage resulting in a Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Period until the date of the Subsidiary Change in Control. 4.3 Minimum Target Payout. In the event of a Southern Change in Control or a Southern Termination, if the Plan or an equitable replacement thereto (as described in Section 1.30 hereof) remains effective on December 31st of the Plan Year in which the Southern Change in Control or Southern Termination shall have occurred, the Plan or replacement plan shall operate with respect to the Computation Period then ended in accordance with its terms, but in no event shall the Award from the Plan or replacement plan for such Computation Period be at less than a target Award Percentage resulting in a Value of Performance Unit of $1.00. ARTICLE V Miscellaneous Provisions 5.1 Neither the Participant, his beneficiary, nor his personal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments of this Plan shall be void and have no effect. 5.2 The Employing Company shall not reserve or otherwise set aside funds for the payments of Awards deferred in accordance with the Prior Plan. 5.3 Except for the provisions of Article IV which cannot be amended, modified or terminated following a Southern Change in Control, Subsidiary Change in Control or Southern Termination, the Plan may be amended, modified, or terminated by the Board of Directors in its sole discretion at any time and from time to time; provided, however, that no such amendment, modification, or termination shall impair any rights to payments which have been deferred under the Prior Plan prior to such amendment, modification, or termination. 5.4 It is expressly understood and agreed that the Awards made in accordance with the Plan are in addition to any other benefits or compensation to which a Participant may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Employing Company. 5.5 There shall be deducted from the payment of each Award under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by the Employing Company to such governmental authority for the account of the person entitled to such distribution. 5.6 Any Awards paid to a Participant while employed by an Employing Company shall not be considered in the calculation of the Participant's benefits under any other employee welfare or pension benefit plan maintained by an Employing Company, unless otherwise specifically provided therein. 5.7 The Committee shall have the authority to interpret the provisions of this Plan and to develop such rules and regulations as are necessary to carry out the terms of the Plan. Any such interpretations, rules or regulations shall be binding upon all Participants. 5.8 The Committee shall have the authority to delegate any of its duties and obligations hereunder and shall have the authority to engage such agents as it deems necessary to carry out its duties and obligations hereunder. 5.9 Governing Law. This Plan, and all rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. 5.10 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall automatically be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction and Pooling Accounting is in fact used for such Change in Control transaction. IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly authorized officers, hereby amends and restates Southern Company Productivity Improvement Plan this ____ day of ____________________, 1999, to be effective January 1, 1998. SOUTHERN COMPANY SERVICES, INC. By: Christopher C. Womack Senior Vice President, Human Resources Attest: By: Tommy Chisholm Secretary [CORPORATE SEAL] SOUTHERN COMPANY PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT A Grade Level Value Target Award Opportunity Percentage of Grade Level Value President/CEO 50/65% 15 50% 14 45% 13 40% 12 35% 11 30% 10 25% 9 25% 8 20% 7 15% SOUTHERN COMPANY PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT B AWARD PERCENTAGE SCHEDULE Position Ranking Value of Performance Unit 12 - 14 15 - 17 18 - 20 $ Companies Companies Companies - --------- --------- --------- $2.00 Top Top Top 1.80 1.0 1.0 1.0 1.60 2.0 2.0 2.0 1.40 2.5 3.0 3.0 1.20 3.0 4.0 4.0 1.00 4.0 4.5 5.0 .90 4.5 5.0 6.0 .80 5.0 6.0 7.0 .70 6.0 7.0 8.0 .60 6.5 8.0 9.0 .50 7.0 8.5 10.0 0 Below 7.0 Below 8.5 Below 10 SOUTHERN COMPANY PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT C The Peer Group Companies are as follows: Allegheny Power System American Electric Power (combine core subs...Note 1) Baltimore Gas & Electric Company Carolina Power & Light Central & South West (combine core subs...Note 2) Central Louisiana Electric Duke Energy Entergy (combine core subs...Note 3) Florida Power & Light (previously used FPL Group, Inc.) Florida Power Corp. (previously used Florida Progress) Kentucky Utilities Company (previously used KU Energy) Potomac Electric Power Company South Carolina Electric & Gas (previously used SCANA) Tampa Electric (previously used TECO Energy) Virginia Electric & Power (previously used Dominion Resources) Note 1: Combine AEP Generating Company, Appalachian Power Company, Columbus Southern Power Company, Indiana Michigan Power Company, Kentucky Power Company, and Ohio Power Company. Note 2: Combine Central Power & Light Co., Public Service Co. of Oklahoma, Southwestern Electric Power Co. and West Texas Utilities Co. Note 3: Combine Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and System Energy Resources, Inc. EX-10.A.60 4 EXHIBIT 10(a)60 SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN AMENDED AND RESTATED TROUTMAN SANDERS LLP NationsBank Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, Georgia 30308 (404) 885-3000 Effective January 1, 1999 SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN Purposes The purposes of the Southern Company Executive Productivity Improvement Plan (the "Plan") are to provide a financial incentive which will focus the efforts of certain executives on areas that will have a direct and significant influence on corporate performance and to provide the potential for levels of compensation that will enhance the Employing Companies' abilities to attract, retain and motivate such executives. In order to achieve these objectives, the Plan will be based upon corporate performance. This Amendment and Restatement shall be effective as of January 1, 1999. ARTICLE I Definitions For purposes of the Plan, the following terms shall have the following meanings unless a different meaning is plainly required by the context: 1.1 "Annual Salary" shall mean base salary or wages paid to a Participant before deductions for taxes, social security, etc., including all amounts contributed by an Employing Company to The Southern Electric System Flexible Benefits Plan or The Southern Company Flexible Benefits Plan on behalf of a Participant, amounts contributed by any Employing Company to The Southern Company Employee Savings Plan as Elective Employer Contributions, as said term is defined in Section 4.1 therein, pursuant to the Participant's exercise of his deferral option made in accordance with Section 401(k) of the Internal Revenue Code, and amounts contributed to the Southern Company Deferred Compensation Plan, but excluding all awards under the Southern Company Performance Pay Plan and the Southern Company Executive Productivity Improvement Plan, overtime pay, shift differential and substitution pay. For Computation Periods beginning on or before January 1, 1998, Annual Salary shall be the Participant's Annual Salary as of the first day of the Computation Period. For Computation Periods beginning January 1, 1999 and thereafter, Annual Salary shall be the weighted average Annual Salary determined as of the last day of each of the four years within the Computation Period. 1.2 "Average ROE" shall mean the mathematical result obtained by (a) calculating the return on equity for each year in the Computation Period, (b) adding the return on equity calculations for all years in the Computation Period; and (c) dividing the total by the number of years in the Computation Period. 1.3 "Award" shall mean the Award Opportunity or Award Units multiplied by the Performance Unit Value determined under Sections 3.2 and 3.4 of the Plan. 1.4 "Award Opportunity" shall mean the award opportunity determined under Section 3.1 of the Plan. 1.5 "Award Unit" shall mean the unit opportunity determined under Section 3.3 of the Plan. 1.6 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 1.7 "Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 1.8 "Business Combination" shall mean a reorganization, merger or consolidation or sale of Southern Company or a sale of all or substantially all of Southern Company's assets. 1.9 "Chief Executive Officer" shall mean the individual designated as such by the Board of Directors of an Employing Company and of Southern Company. 1.10 "Committee" or "Compensation Committee" shall mean the Compensation Committee of the Board of Directors of Southern Company or the Employing Company. 1.11 "Common Stock" shall mean the common stock of Southern Company. 1.12 "Computation Period" shall mean a four-year period commencing on the first day of the initial year of participation and thereafter it shall mean a four-year period commencing the first day of January each year made up of the ROE Computation Period and the TSR Computation Period, if any, respectively. 1.13 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. 1.14 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 1.15 "Employing Company" shall mean Southern Company Services, Inc., or any other affiliate or subsidiary (direct or indirect) of 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. 1.16 "Executive Employee" shall mean any person who is currently employed by an Employing Company who is a "covered employee" as that term is defined in Section 162(m) of the Internal Revenue Code (the "Code") who is designated as an Executive Employee by the Compensation Committee and such other persons employed by an Employing Company as the Compensation Committee in its discretion shall designate. 1.17 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.18 "Grade Level" shall mean the evaluation assigned under the job evaluation system. For Computation Periods beginning on or before January 1, 1998, Grade Level shall be the Participant's Grade Level as of the first day of the Computation Period. For Computation Periods beginning January 1, 1999 and thereafter, Grade Level shall be the weighted average Grade Level determined as of the last day of each of the four years within the Computation Period. 1.19 "Grade Level Value" shall mean the assigned dollar value within the Annual Salary range for a Grade Level in a Computation Period, upon which awards are based. 1.20 "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. 1.21 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern Company's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 1.22 "Non-Adopting Employer" shall mean any subsidiary or affiliate of Southern Company which is not an Employing Company. 1.23 "Participant" shall mean an Executive Employee who satisfies the criteria referred to in Article II at the beginning of a Computation Period. 1.24 "Payment Date" shall mean the date the check evidencing the Award is endorsed by an authorized person of an Employing Company. 1.25 "Percentage of Total Award" shall have the meaning ascribed in Exhibits B and E hereof. 1.26 "Plan" shall mean the Southern Company Executive Productivity Improvement Plan, as described herein or as may be amended from time to time. 1.27 "Plan Termination" shall mean the termination of the Plan by Southern Company or an Employing Company following a Southern Change in Control unless an equitable arrangement (embodied in an ongoing substitute or replacement plan) has been made with respect to the Plan in connection with the Southern Change in Control. For purposes of this Plan, an ongoing substitute or alternative plan shall be considered an "equitable arrangement" if a nationally recognized compensation consulting firm chosen by the Committee opines in writing that, on aggregate, the post-Southern Change in Control plan is an equitable substitute or replacement of the pre-Southern Change in Control Plan, and that such substitute or alternative plan provides substantially similar target opportunities and a substantially similar level of performance difficulty. 1.28 "Prior Plan" shall mean the Plan as amended and restated effective January 1, 1995. 1.29 "Southern Board" shall mean the board of directors of Southern Company. 1.30 "Southern Change in Control" shall mean any of the following: (a) The acquisition by any Person of Beneficial Ownership of 20% or more of Southern Company's Voting Securities; provided, however, that for purposes of this subsection (a), the following acquisitions of Southern Company's Voting Securities shall not constitute a Change in Control: (i) any acquisition directly from Southern Company; (ii) any acquisition by Southern Company; (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company; (iv) any acquisition by a qualified pension plan or publicly held mutual fund; (v) any acquisition by an Employee or Group composed exclusively of Employees; or (vi) any Business Combination which would not otherwise constitute a Change in Control because of the application of clauses (i), (ii) and (iii) of Section 1.30(c); (b) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (c) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (i) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern Company's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern Company's Voting Securities or all or substantially all of Southern Company's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Southern Company's Voting Securities; (ii) no Person (excluding any corporation resulting from such Business Combination, any qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern Company, its subsidiaries or Surviving Company) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. 1.31 "Southern Company" shall mean The Southern Company. 1.32 "Southern Termination" shall mean the following: (a) The consummation of a reorganization, merger or consolidation of Southern Company under circumstances where either (i) Southern Company is not the surviving corporation or (ii) Southern Company's Voting Securities are no longer publicly traded; (b) The sale or other disposition of all or substantially all of Southern Company's assets; or (c) The acquisition by any Person of Beneficial Ownership of all of Southern Company's Voting Securities such that Southern Company's Voting Securities are no longer publicly traded; in each case under circumstances where the Surviving Company of the company acquiring Southern Company's assets or Voting Securities dies not adopt an "equitable arrangement" (as defined in Section 1.27 hereof) in the form of a replacement plan. 1.33 "Subsidiary Change in Control" shall mean the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Section 1.33, any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, any publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company shall not constitute a Change in Control; (b) Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Company Controls the corporation surviving or resulting from such Employing Company Business Combination; or (c) Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern Company does not Control. 1.34 "Subsidiary Employee" shall mean an Executive Employee of an Employing Company which has undergone a Subsidiary Change in Control. 1.35 "ROE Computation Period" shall have the meaning ascribed in Section 3.1 hereof. 1.36 "ROE Peer Group Companies" shall mean the companies set forth on Exhibit C attached hereto and as may be revised from time to time by the Committee to reflect mergers, acquisitions, reorganizations, etc. of such companies. 1.37 "Termination for Cause" or "Cause" shall mean the termination of a Participant's employment by an Employing Company under any of the following circumstances: (a) The Participant willfully neglects or refuses to discharge his or her duties to the Employing Company as an employee or refuses to comply with any lawful and reasonable instructions given to him or her by the Employing Company without reasonable excuse; (b) The Participant is guilty of gross misconduct. For purposes of this Plan, the following acts shall constitute gross misconduct: (i) any act involving fraud or dishonesty or breach of appropriate regulations of competent authorities; (ii) the carrying out of any activity or the making of any statement which would prejudice or impair the good name and standing of the Company or any Employing Company or would bring the Company or any Employing Company into contempt, ridicule or would reasonably shock or offend any community in which the Company or any Employing Company is located; (iii) attendance at work in a state of intoxication or otherwise being found in possession at his or her workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (iv) assault or other act of violence against any employee or other person during the course of the Participant's employment; and (v) conviction of any felony or misdemeanor involving moral turpitude. 1.38 "Total Shareholder Return" or "TSR" shall mean the total amount an investor would receive by investing $100 per quarter in Common Stock or in TSR Peer Group Common Stock, as the case may be, as determined by measuring the total dividends which would have been paid on such Common Stock or TSR Peer Group Common Stock by reinvesting such dividends on a quarterly basis in additional shares of Common Stock or TSR Peer Group Common Stock, as the case may be, and the total gain or loss on such Common Stock or Peer Group Common Stock as if such stock had been sold at the closing price on the last day of the respective Computation Period. 1.39 "TSR Computation Period" shall have the meaning ascribed in Section 3.3 hereof. 1.40 "TSR Peer Group Common Stock" shall mean the common stock of the Peer Group Companies. 1.41 "TSR Peer Group Companies" shall mean those Companies designated by Goldman Sachs in its "Selected Electric Utility Industry Report" as the approximately 80 Utility Peer Group Companies as published quarterly and as composed from time to time. In the event that Goldman Sachs no longer publishes the 80 Utility Peer Group Companies, the Committee shall choose such other and similar list of national peer group companies as published by a similarly nationally recognized firm. 1.42 "Value of Performance Unit" shall have the meaning ascribed in Exhibits B and E attached hereto. 1.43 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. Where the context requires, 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 II Participants 2.1 Participation. Participation in the Plan shall be limited to Executive Employees of the Employing Companies. 2.2 Reduction in Grade Level. Any Participant who ceases to be an Executive Employee prior to the close of a Computation Period shall receive an Award for the Computation Period ending on December 31st of the year in which such Participant ceased to be an Executive Employee and shall forfeit any Award for any other Computation Periods that have not closed as of the date the Participant ceases to be an Executive Employee. 2.3 Termination of Employment. If a Participant's employment is terminated by reason of death, disability or retirement, such Participant or his or her estate shall be eligible to receive an Award for the Computation Period ending in the year of such death, disability or retirement unless such death, disability or retirement shall have occurred on January 1 in which case the Participant or his or her estate shall only be entitled to an Award for the Computation Period ending December 31 of the previous year. Any Participant who terminates employment for any other reason shall receive only any unpaid Award for a completed Computation Period and shall not be eligible to receive an Award for the Computation Period ending in the year of such termination of employment. 2.4 Transfer to Non-Adopting Employer. Notwithstanding the provisions of Section 2.3 above, in the case of an individual transferring from an Employing Company to a Non-Adopting Employer any Award paid for any Computation Period not yet closed as of the date of a Participant's transfer shall be paid to the Participant by the Employing Company from which the Participant is transferring on the following basis: (i) 100% of the Award for the Computation Period ending in the year of transfer; (ii) 75% of the Award for the Computation Period ending in the first year following the year of transfer; (iii) 50% of the Award for the Computation Period ending in the second year following the year of transfer; and (iv) 25% of the Award for the Computation Period ending in the third year following the year of transfer. Such transferring Participant shall receive no award for any Computation Period which has not begun on the date of the Participant's transfer or if such Participant shall no longer be in an eligible Grade Level after such transfer. Any Awards payable under this Section 2.4 shall be based on the Grade Level at the time of transfer. 2.5 Transfer from Non-Adopting Employer. In the case of an individual transferring from a Non-Adopting Employer to an Employing Company whose Grade Level and length of service at the Non-Adopting Employer would have caused the Employee to have been a Participant in the Plan if the Non-Adopting Employer were an Employing Company and whose Grade Level after the transfer would enable the Employee to participate in the Plan, such individual shall be deemed to have been employed by an Employing Company while employed with the Non-Adopting Employer and shall, for any Computation Period ending after such transfer, be deemed a Participant in the Plan as if the Non-Adopting Employer was an Employing Company. Any Awards payable under this Section 2.5 shall be based on the Grade Levels at the Employing Company. 2.6 Termination for Cause. Notwithstanding any other provision of this Plan, a Participant whose employment is Terminated for Cause shall forfeit any and all unpaid Awards under this Plan. 2.7 Promotion. The administration of Awards for Participants who are promoted or transferred from one Grade Level included in the Plan to another Grade Level included in the Plan shall be based on the Participant's Grade Level Value on the last day of the Computation Period for which an Award is being granted. For the Computation Periods ending December 31, 1995, December 31, 1996, December 31, 1997 and December 31, 1998 a Participant's Grade Level Value for determining Awards shall be the Participant's Grade Level Value on January 1, 1995. 2.8 Maximum Award. Notwithstanding any other provision of this Plan, the maximum Award for any Computation Period payable to any Participant shall be two million dollars ($2,000,000). 2.9 1995 Participants. Any individual who initially becomes a Participant in the Plan as of January 1, 1995 shall be considered to have been participating in the Plan as of January 1, 1993 for purposes of determining benefits payable for any Computation Period that began or begins on or after January 1, 1993 and such Participant will therefore be eligible for an Award equal to seventy-five percent (75%) of the Award Opportunity for the Computation Period ending December 31, 1995. 2.10 Post-1995 Participants. In the case of an individual who becomes a Participant subsequent to January 1, 1995, said Participant will participate in each Computation Period which ends not less than two (2) years after becoming a Participant. ARTICLE III Corporate Financial Performance Award 3.1 ROE Computation Period. For Computation Period years beginning before January 1, 1997 (the "ROE Computation Period"), the Award Opportunity for each Participant shall be based upon either his Grade Level Value (as determined based on his Grade Level at the beginning of such period) or, in the Committee's discretion, upon his Annual Salary at the beginning of such period and in either case shall range from fifteen percent (15%) to sixty-five percent (65%) of such Grade Level Value or Annual Salary, as applicable. The Award Opportunity for each Grade Level or Annual Salary shall be determined in accordance with the chart set forth in Exhibit A hereof. 3.2 ROE Ranking. Each Award Opportunity granted in the ROE Computation Period shall be multiplied by the Value of Performance Unit factor and the Percentage of Total Award factor set forth in Exhibit B hereof, which is based on Southern Company's Average ROE ranking during the ROE Computation Period as compared to the Average ROE ranking of the ROE Peer Group Companies to determine a Participant's Award. The return on common equity of the ROE Peer Group Companies shall be determined annually by an independent certified public accountant based on generally accepted accounting principles and shall be properly adjusted and annualized by such accountant so that each ROE Peer Group Company return on common equity may be accurately compared to that of Southern Company. 3.3 TSR Computation Period. For Computation Period years beginning on or after January 1, 1997 (the "TSR Computation Period"), the Award Units for each Participant shall be based upon either his Grade Level Value or, in the Committee's discretion, upon his Annual Salary and, in either case shall range from fifteen percent (15%) to sixty-five percent (65%) of such Grade Level Value or Annual Salary, as applicable. The Award Units for each Grade Level or Annual Salary shall be determined in accordance with the charts set forth in Exhibit D hereof. 3.4 TSR Ranking. Each Award Unit granted in the TSR Computation Period shall be multiplied by the Value of Performance Unit factor and the Percentage of Total Award factor set forth in Exhibit E hereof which is based on Total Shareholder Return of Southern Company as compared to the Total Shareholder Return for the TSR Peer Group Companies. The Total Shareholder Return of Southern Company and the TSR Peer Group Companies shall be determined annually by an independent certified public accountant and shall be properly adjusted and amortized by such accountant so that each TSR Peer Group Company's total shareholder return may be accurately compared to that of Southern Company. 3.5 Insufficient Earnings. Notwithstanding the above provisions, an Award will not be granted for any Computation Period ending with the calendar year in which the current earnings of Southern Company are less than the amount necessary to fund the dividends on its Common Stock at the rate such dividends were paid for the immediately preceding calendar year. 3.6 Extraordinary Income. In the exercise of negative discretion, the Compensation Committee may calculate the Award for one or more Computation Period(s) without regard to any extraordinary income item (but not loss) otherwise recorded by Southern Company or any Employing Company, provided such determination that an item of income is extraordinary is made by the Committee prior to the close of the Computation Period. 3.7 Payment. The Awards to the Participants will be paid in cash as soon as is practicable after all evaluations are completed. An Award payment may not be deferred under this Plan. In the event an Award was deferred under the Prior Plan, such deferral shall be governed by the terms of the Prior Plan. ARTICLE IV Change in Control 4.1 Southern Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Plan Termination within the two (2) year period following a Southern Change in Control, each Participant who is an Executive Employee on the date of the Plan Termination shall be entitled to receive within thirty (30) days of the Plan Termination, cash in an amount equal to his Award Opportunity or Award Units, as the case may be, for the Computation Period in which the Plan Termination shall have occurred, at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Period until the date of the Plan Termination. 4.2 Subsidiary Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Subsidiary Change in Control, each Subsidiary Employee on the date of such Change in Control whose employment is not transferred upon such Subsidiary Change in Control to another Employing Company shall be entitled to receive within thirty (30) days of the Subsidiary Change in Control, cash in an amount equal to his Award Opportunity, or Award Units, as the case may be, for the Computation Period in which the Subsidiary Change in Control shall have occurred, at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Period until the date of the Subsidiary Change in Control. 4.3 Southern Termination. Notwithstanding any other provision of this Plan to the contrary, in the event of a Southern Termination, if the Plan or an equitable replacement thereto (as described in Section 1.27 hereof) remains effective on December 31st of the Plan Year in which the Southern Change in Control shall have occurred, the Plan or Replacement Plan shall operate with respect to the Performance Period then ended in accordance with its terms, but in no event shall the Value of Performance Unit under the Plan or similar factor under a replacement plan for such Performance Period be less than $1.00 or target performance, respectively. ARTICLE V Miscellaneous Provisions 5.1 No Assignment. Neither the Participant, his beneficiary, nor his personal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments of this Plan shall be void and have no effect. 5.2 No Reserve. The Employing Company shall not reserve or otherwise set aside funds for the payments of Awards deferred in accordance with the Prior Plan. 5.3 Plan Amendment. Except for the provisions of Article IV hereof, which may not be amended, modified or terminated following a Southern Change in Control, Subsidiary Change in Control or a Southern Termination, the Plan may be amended, modified, or terminated by the Board of Directors in its sole discretion at any time and from time to time; provided, however, that no such amendment, modification, or termination shall impair any rights to payments which have been deferred under the Prior Plan prior to such amendment, modification, or termination. 5.4 Additional Benefits. It is expressly understood and agreed that the Awards made in accordance with the Plan are in addition to any other benefits or compensation to which a Participant may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Employing Company. 5.5 Withholding. There shall be deducted from the payment of each Award under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by the Employing Company to such governmental authority for the account of the person entitled to such distribution. 5.6 Effect On Other Benefits. Any Awards paid to a Participant while employed by an Employing Company shall not be considered in the calculation of the Participant's benefits under any other employee welfare or pension benefit plan maintained by an Employing Company, unless otherwise specifically provided therein. 5.7 Governing Law. This Plan, and all its rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. 5.8 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting,), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly authorized officers, hereby amends and restates the Southern Company Executive Productivity Improvement Plan this ____ day of , 1999 to be effective January 1, 1999. SOUTHERN COMPANY SERVICES, INC. By: ______________________________ Christopher C. Womack Senior Vice President, Human Resources Attest: By: ________________________ Tommy Chisholm Secretary [CORPORATE SEAL] SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT A Award Opportunity Grade Level Value Award Opportunity Percentage of Grade Level Value or Annual Salary President/CEO 50/65% 15 50% 14 45% 13 40% 12 35% 11 30% 10 25% 9 25% 8 20% 7 15% SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT B AWARD PERCENTAGE SCHEDULE Position Ranking Value of Performance Unit 12 - 14 15 - 17 18 - 20 $ Companies Companies Companies - --------- --------- --------- $2.00 Top Top Top 1.80 1.0 1.0 1.0 1.60 2.0 2.0 2.0 1.40 2.5 3.0 3.0 1.20 3.0 4.0 4.0 1.00 4.0 4.5 5.0 .90 4.5 5.0 6.0 .80 5.0 6.0 7.0 .70 6.0 7.0 8.0 .60 6.5 8.0 9.0 .50 7.0 8.5 10.0 0 Below 7.0 Below 8.5 Below 10 Percentage Of Total Award Factor Computation Period Ending Factor December 31, 1997 75% December 31, 1998 50% December 31, 1999 25% Thereafter 0% SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT C ROE Peer Group Companies Allegheny Energy, Inc. Kansas City Power & Light Company Alliant Energy Corporation Keyspan Energy Corporation Ameren Corporation LG&E Energy Corporation American Electric Power Company MDU Resources Baltimore Gas & Electric Company MidAmerican Energy Holdings Co. BEC Energy Minnesota Power Company Carolina Power & Light Company Montana Power Company Central & South West Corporation Nevada Power Co. CILCORP. Inc. New Century Energies, Inc. Cinergy Corporation New England Electric System Cleco Corporation Niagara Mohawk Power Corp. Conectiv CIV NIPSCO Industries, Inc. CMS Energy Corporation Northeast Utilities Co. Commonwealth Energy System Northern States Power Co. Consolidated Edison, Inc. OGE Energy Corp. Dominion Resources, Inc. Orange & Rockland Utilities, Inc. DPL, Inc. PG&E Corp. DQE, Inc. PacifiCorp DTE Energy Company PECO Energy Co. Duke Energy Corporation Pinnacle West Capital Corp. Eastern Utilities Associates Potomac Electric Power Co. Edison International PP&L Resources, Inc. Energy East Corporation Public Service Co. of New Mexico Entergy Corporation Public Service Enterprise Group, Inc. FirstEnergy Corporation Puget Sound Energy, Inc. Florida Progress Corporation Rochester Gas & Electric Corp. FPL Group, Inc. SCANA Corp. GPU, Inc. Sierra Pacific Resources Hawaiian Electric Industries, Inc. SIGCORP, Inc. Houston Industries, Inc. TECO Energy, Inc. IDACORP, Inc. Texas Utilities Company Illinova Corporation Unicom Corp. Interstate Energy Corporation Unisource Energy Corp. IPALCO Enterprises, Inc. United Illuminating Company Washington Water Power Co. UtiliCorp. United, Inc. Western Resources, Inc. Wisconsin Energy Corp. WPS Resources Corp. SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT D Award Units Grade Level Value Award Units Percentage of Grade Level Value or Annual Salary President/CEO 50/65% 15 50% 14 45% 13 40% 12 35% 11 30% 10 25% 9 25% 8 20% 7 15% SOUTHERN COMPANY EXECUTIVE PRODUCTIVITY IMPROVEMENT PLAN EXHIBIT E Performance Unit Factor* Value of Unit Percentile of Southern TSR vs. Investor Utility $ 2.00 90th and above $ 1.50 70th $1.00 50th $ .50 30th $ .00 Below 30th *The Value of Unit for performance levels falling between the percentiles listed above shall be interpolated on a straight line basis for any given calendar year. Percentage Of Total Award Factor Computation Period Ending Factor December 31, 1997 25% December 31, 1998 50% December 31, 1999 75% Thereafter 100% EX-10.A.61 5 EXHIBIT 10(a)61 THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN As Amended and Restated Effective January 1, 1997 TABLE OF CONTENTS ARTICLE I - PURPOSE.................................................1 ARTICLE II - DEFINITIONS............................................2 2.1 "Account"..................................................2 2.2 "Actual Contribution Percentage Test"......................2 2.3 "Actual Deferral Percentage"...............................2 2.4 "Actual Deferral Percentage Test"..........................2 2.5 "Affiliated Employer"......................................2 2.6 "Aggregate Account"........................................2 2.7 "Aggregation Group"........................................3 2.8 "Annual Addition"..........................................3 2.9 "Average Actual Deferral Percentage".......................3 2.10 "Average Contribution Percentage"..........................4 2.11 "Beneficiary"..............................................4 2.12 "Board of Directors".......................................4 2.13 "Break-in-Service Date"....................................4 2.14 "Code".....................................................4 2.15 "Committee"................................................4 2.16 "Common Stock".............................................4 2.17 "Company"..................................................4 2.18 "Compensation".............................................4 2.19 "Contribution Percentage"..................................5 2.20 "Defined Benefit Plan Fraction"............................5 2.21 "Defined Contribution Plan Fraction".......................5 2.22 "Determination Date".......................................6 2.23 "Determination Year".......................................6 2.24 "Direct Rollover"..........................................6 2.25 "Distributee"..............................................6 2.26 "Elective Employer Contribution"...........................6 2.27 "Eligible Employee"........................................6 2.28 "Eligible Participant".....................................7 2.29 "Eligible Retirement Plan".................................7 2.30 "Eligible Rollover Distribution"...........................7 2.31 "Employee".................................................7 2.32 "Employer Matching Contribution"...........................7 2.33 "Employing Company"........................................7 2.34 "Enrollment Date"..........................................7 2.35 "ERISA"....................................................7 2.36 "Excess Aggregate Contributions"...........................7 2.37 "Excess Deferral Amount"...................................8 2.38 "Excess Deferral Contributions"............................8 2.39 "Highly Compensated Employee"..............................8 2.40 "Hour of Service"..........................................8 2.41 "Investment Fund"..........................................8 2.42 "Key Employee".............................................8 2.43 "Limitation Year"..........................................8 2.44 "Look-Back Year"...........................................8 2.45 "Non-Highly Compensated Employee"..........................8 2.46 "Normal Retirement Date"...................................8 2.47 "One-Year Break in Service"................................9 2.48 "Participant"..............................................9 2.49 "Permissive Aggregation Group".............................9 2.50 "Plan".....................................................9 2.51 "Plan Year"................................................9 2.52 "Present Value of Accrued Retirement Income"...............9 2.53 "Required Aggregation Group"...............................9 2.54 "Rollover Contribution"....................................9 2.55 "SEPCO"....................................................9 2.56 "SEPCO Plan"...............................................9 2.57 "SEPCO Transferred Account"...............................10 2.58 "Super-Top-Heavy Group"...................................10 2.59 "Surviving Spouse"........................................10 2.60 "Top-Heavy Group".........................................10 2.61 "Trust"or "Trust Fund"....................................10 2.62 "Trust Agreement".........................................10 2.63 "Trustee".................................................10 2.64 "Valuation Date"..........................................10 2.65 "Voluntary Participant Contribution"......................10 2.66 "Year of Service".........................................10 ARTICLE III - PARTICIPATION........................................12 3.1 Eligibility Requirements..................................12 3.2 Participation upon Reemployment...........................12 3.3 No Restoration of Previously Distributed Benefits.........12 3.4 Loss of Eligible Employee Status..........................12 3.5 Special Rule for Scott Paper Company Energy Complex Employees.................................................13 3.6 Former Commonwealth Edison of Indiana Employees...........13 3.7 Military Leave............................................13 ARTICLE IV - ELECTIVE EMPLOYER CONTRIBUTIONS AND VOLUNTARY PARTICIPANT CONTRIBUTIONS..........................................14 4.1 Elective Employer Contributions...........................14 4.2 Maximum Amount of Elective Employer Contributions.........14 4.3 Distribution of Excess Deferral Amounts...................14 4.4 Additional Rules Regarding Elective Employer Contributions15 4.5 Section 401(k) Nondiscrimination Tests....................16 4.6 Voluntary Participant Contributions.......................19 4.7 Manner and Time of Payment of Elective Employer Contributions and Voluntary Participant Contributions.....19 4.8 Change in Contribution Rate...............................19 4.9 Change in Contribution Amount.............................20 4.10 Rollover Contributions and Direct Transfers from the SEPCO and ECMC Plans..................................20 4.11 Rollovers from Other Plans................................20 ARTICLE V - EMPLOYER MATCHING CONTRIBUTIONS........................22 5.1 Amount of Employer Matching Contributions.................22 5.2 Payment of Employer Matching Contributions................22 5.3 Limitations on Employer Matching Contributions and Voluntary Participant Contributions.......................22 5.4 Multiple Use Limitation...................................25 5.5 Reversion of Employing Company Contributions..............25 5.6 Correction of Prior Incorrect Allocations and Distributions.............................................26 ARTICLE VI - LIMITATIONS ON CONTRIBUTIONS..........................27 6.1 Section 415 Limitations...................................27 6.2 Correction of Contributions in Excess of Section 415 Limits................................................28 6.3 Combination of Plans......................................28 ARTICLE VII - SUSPENSION OF CONTRIBUTIONS..........................30 7.1 Suspension of Contributions...............................30 7.2 Resumption of Contributions...............................30 ARTICLE VIII - INVESTMENT OF CONTRIBUTIONS.........................31 8.1 Investment Funds..........................................31 8.2 Investment of Participant Contributions...................31 8.3 Investment of Employer Matching Contributions.............31 8.4 Investment of Earnings....................................31 8.5 Transfer of Assets between Funds..........................31 8.6 Change in Investment Direction............................32 8.7 Section 404(c) Plan.......................................32 ARTICLE IX - MAINTENANCE AND VALUATION OF PARTICIPANTS'ACCOUNTS....33 9.1 Establishment of Accounts.................................33 9.2 Valuation of Investment Funds.............................33 9.3 Rights in Investment Funds................................33 ARTICLE X - VESTING................................................34 10.1 Vesting...................................................34 ARTICLE XI - WITHDRAWALS AND LOANS.................................35 11.1 Withdrawals by Participants...............................35 11.2 Notice of Withdrawal......................................36 11.3 Form of Withdrawal........................................36 11.4 Minimum Withdrawal........................................36 11.5 Source of Withdrawal......................................36 11.6 Requirement of Hardship...................................36 11.7 Loans to Participants.....................................38 11.8 Special Waiver for Participants Employed in the United Kingdom............................................39 ARTICLE XII - DISTRIBUTION TO PARTICIPANTS.........................41 12.1 Distribution upon Retirement..............................41 12.2 Distribution upon Disability..............................42 12.3 Distribution upon Death...................................42 12.4 Designation of Beneficiary in the Event of Death..........42 12.5 Distribution upon Termination of Employment...............43 12.6 Commencement of Benefits..................................43 12.7 Transfer between Employing Companies......................44 12.8 Distributions to Alternate Payees.........................44 12.9 Requirement for Direct Rollovers..........................45 12.10 Consent and Notice Requirements...........................45 12.11 Form of Payment...........................................45 12.12 Partial Distribution upon Termination of Employment.......45 ARTICLE XIII - ADMINISTRATION OF THE PLAN..........................47 13.1 Membership of Committee...................................47 13.2 Acceptance and Resignation................................47 13.3 Transaction of Business...................................47 13.4 Responsibilities in General...............................47 13.5 Committee as Named Fiduciary..............................47 13.6 Rules for Plan Administration.............................48 13.7 Employment of Agents......................................48 13.8 Co-Fiduciaries............................................48 13.9 General Records...........................................48 13.10 Liability of the Committee................................48 13.11 Reimbursement of Expenses and Compensation of Committee...49 13.12 Expenses of Plan and Trust Fund...........................49 13.13 Responsibility for Funding Policy.........................49 13.14 Management of Assets......................................49 13.15 Notice and Claims Procedures..............................50 13.16 Bonding...................................................50 13.17 Multiple Fiduciary Capacities.............................50 13.18 Change in Administrative Procedures.......................50 ARTICLE XIV - TRUSTEE OF THE PLAN..................................51 14.1 Trustee...................................................51 14.2 Purchase of Common Stock..................................51 14.3 Voting of Common Stock....................................51 14.4 Voting of Other Investment Fund Shares....................52 14.5 Uninvested Amounts........................................52 14.6 Independent Accounting....................................52 ARTICLE XV - AMENDMENT AND TERMINATION OF THE PLAN.................53 15.1 Amendment of the Plan.....................................53 15.2 Termination of the Plan...................................53 15.3 Merger or Consolidation of the Plan.......................53 ARTICLE XVI - TOP-HEAVY REQUIREMENTS...............................55 16.1 Top-Heavy Plan Requirements...............................55 16.2 Determination of Top-Heavy Status.........................55 16.3 Minimum Allocation for Top-Heavy Plan Years...............56 16.4 Adjustments to Maximum Benefit Limits for Top-Heavy Plans.56 ARTICLE XVII - GENERAL PROVISIONS..................................58 17.1 Plan Not an Employment Contract...........................58 17.2 No Right of Assignment or Alienation......................58 17.3 Payment to Minors and Others..............................58 17.4 Source of Benefits........................................59 17.5 Unclaimed Benefits........................................59 17.6 Governing Law.............................................59 ARTICLE XVIII - SPECIAL REQUIREMENTS FOR ACCOUNT BALANCES ATTRIBUTABLE TO ACCRUED BENEFITS TRANSFERRED FROM THE SEPCO PLAN...60 18.1 SEPCO Transferred Accounts................................60 18.2 In-Service Withdrawals from SEPCO Transferred Accounts....60 18.3 Loans from SEPCO Transferred Accounts.....................60 18.4 Distribution of SEPCO Transferred Accounts................60 18.5 Code Section 411(d)(6) Protected Benefits.................62 THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN As Amended and Restated Effective January 1, 1997 ARTICLE I PURPOSE The purpose of the Plan is to encourage employee thrift, to create added employee interest in the affairs of The Southern Company, to provide a means for becoming a shareholder in The Southern Company, to supplement retirement and death benefits, and to create a competitive compensation program for employees through the establishment of a formal plan under which contributions by and on behalf of Participants are supplemented by contributions of Employing Companies. This Plan is intended to be a stock bonus plan, and all contributions made by an Employing Company to this Plan are expressly conditioned upon the deductibility of such contributions under Code Section 404. The Plan was originally effective March 1, 1976 and is being amended and restated effective as of January 1, 1997, in order to incorporate a variety of plan design and other changes. ARTICLE II DEFINITIONS All references to articles, sections, subsections, and paragraphs shall be to articles, sections, subsections, and paragraphs of this Plan unless another reference is expressly set forth in this Plan. Any words used in the masculine shall be read and be construed in the feminine where they would so apply. Words in the singular shall be read and construed in the plural, and all words in the plural shall be read and construed in the singular in all cases where they would so apply. For purposes of this Plan, unless otherwise required by the context, the following terms shall have the meanings set forth opposite such terms: 2.1 "Account" shall mean the total amount credited to the account of a Participant, as described in Section 9.1. 2.2 "Actual Contribution Percentage Test" shall mean the test described in Section 5.3(a). 2.3 "Actual Deferral Percentage" shall mean the ratio (expressed as a percentage) of Elective Employer Contributions on behalf of an Eligible Participant for the Plan Year to the Eligible Participant's compensation for the Plan Year. For the purpose of determining an Eligible Participant's Actual Deferral Percentage for a Plan Year, the Committee may elect to consider an Eligible Participant's compensation for (a) the entire Plan Year or (b) that portion of the Plan Year in which the Eligible Participant was eligible to have Elective Employer Contributions made on his behalf, provided that such election is applied uniformly to all Eligible Participants for the Plan Year. The Actual Deferral Percentage of an Eligible Participant who does not have Elective Employer Contributions made on his behalf shall be zero. 2.4 "Actual Deferral Percentage Test" shall mean the test described in Section 4.5(a). 2.5 "Affiliated Employer" shall mean an Employing Company and (a) any corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) which includes such Employing Company, (b) any trade or business (whether or not incorporated) which is under common control (as defined in Section 414(c) of the Code) with such Employing Company, (c) any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Section 414(m) of the Code) which includes such Employing Company, and (d) any other entity required to be aggregated with such Employing Company pursuant to regulations under Section 414(o) of the Code. Notwithstanding the foregoing, for purposes of applying the limitations of Article VI, the term Affiliated Employer shall be adjusted as required by Code Section 415(h). 2.6 "Aggregate Account" shall mean with respect to a Participant as of the Determination Date, the sum of the following: (a) the Account balance of such Participant as of the most recent valuation occurring within a twelve-month period ending on the Determination Date; (b) an adjustment for any contributions due as of the Determination Date; (c) any Plan distributions, including unrelated rollovers and plan-to-plan transfers (ones which are both initiated by the Employee and made from a plan maintained by one employer to a plan maintained by another employer), but not related rollovers or plan-to-plan transfers (ones either not initiated by the Employee or made to a plan maintained by the same employer), made within the Plan Year that includes the Determination Date or within the four preceding Plan Years, including distributions made prior to January 1, 1984, and distributions made under a terminated plan which if it had not been terminated would have been required to be included in an Aggregation Group; (d) any Employee contributions, whether voluntary or mandatory; (e) unrelated rollovers and plan-to-plan transfers to this Plan accepted prior to January 1, 1984; and (f) related rollovers and plan-to-plan transfers to this Plan. 2.7 "Aggregation Group" shall mean either a Required Aggregation Group or a Permissive Aggregation Group. 2.8 "Annual Addition" shall mean the amount allocated to a Participant's Account and accounts under all defined contribution plans maintained by the Affiliated Employers during a Limitation Year that constitutes (a) Affiliated Employer contributions, (b) Voluntary Participant Contributions, (c) forfeitures, if any, allocated to a Participant's Account or accounts under all defined contribution plans maintained by the Affiliated Employers, and (d) amounts described in Sections 415(l)(1) and 419A(d)(2) of the Code. 2.9 "Average Actual Deferral Percentage" shall mean the average (expressed as a percentage) of the Actual Deferral Percentages of the Eligible Participants in a group. 2.10 "Average Contribution Percentage" shall mean the average (expressed as a percentage) of the Contribution Percentages of the Eligible Participants in a group. 2.11 "Beneficiary" shall mean any person(s) who, or estate(s), trust(s), or organization(s) which, in accordance with the provisions of Section 12.4, become entitled to receive benefits upon the death of a Participant. 2.12 "Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 2.13 "Break-in-Service Date" means the earlier of: (a) the date on which an Employee terminates employment, is discharged, retires, or dies; or (b) the last day of an approved leave of absence including any extension. In the case of an individual who is absent from work for maternity or paternity reasons, such individual shall not incur a Break-in-Service Date earlier than the expiration of the second anniversary of the first date of such absence; provided, however, that the twelve-consecutive-month period beginning on the first anniversary of the first date of such absence shall not constitute a Year of Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (a) by reason of the pregnancy of the Employee, (b) by reason of a birth of a child of the Employee, (c) by reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee, or (d) for purposes of caring for such child for a period beginning immediately following such birth or placement. 2.14 "Code" shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, and the rulings and regulations promulgated thereunder. In the event an amendment to the Code renumbers a section of the Code referred to in this Plan, any such reference automatically shall become a reference to such section as renumbered. 2.15 "Committee" shall mean the committee appointed pursuant to Section 13.1 to serve as plan administrator. 2.16 "Common Stock" shall mean the common stock of The Southern Company. 2.17 "Company" shall mean Southern Company Services, Inc., and its successors. 2.18 "Compensation" shall mean the base salary or wages of a Participant, including all amounts contributed by an Employing Company to The Southern Company Flexible Benefits Plan on behalf of a Participant pursuant to a salary reduction arrangement under such plan, plus monthly shift and monthly seven-day schedule differentials, geographic premiums, monthly customer service premiums, monthly nuclear plant premiums, and, effective July 1, 1998, sales commissions paid under a sales commission payment program sponsored by an Employing Company for sales commissioned based employees, and before deduction of taxes, social security, etc., but excluding all awards under any incentive pay plans sponsored by the Employing Company, including but not limited to, The Southern Company Performance Pay Plan, The Southern Company Productivity Improvement Plan, and The Southern Company Executive Productivity Improvement Plan, overtime pay, any hourly shift differentials, substitution pay, such amounts which are reimbursements to a Participant paid by any Employing Company, including but not limited to, reimbursement for such items as moving expenses and travel and entertainment expenses, and imputed income for automobile expenses, tax preparation expenses and health and life insurance premiums paid by the Employing Company. The Compensation of each Participant taken into account for purposes of this Plan shall not exceed $160,000 (as adjusted pursuant to Code Section 401(a)(17)). 2.19 "Contribution Percentage" shall mean the ratio (expressed as a percentage), of the sum of the Voluntary Participant Contributions and Employer Matching Contributions under the Plan on behalf of the Eligible Participant for the Plan Year to the Eligible Participant's compensation for the Plan Year. For the purpose of determining an Eligible Participant's Contribution Percentage for a Plan Year, the Committee may elect to consider an Eligible Participant's compensation for (a) the entire Plan Year or (b) that portion of the Plan Year in which the individual is an Eligible Participant, provided that such election is applied uniformly to all Eligible Participants for the Plan Year. The Contribution Percentage of an Eligible Participant who does not make Voluntary Participant Contributions or have Employer Matching Contributions made on his behalf shall be zero. 2.20 "Defined Benefit Plan Fraction" shall mean the following fraction: (numerator) Sum of the projected annual benefits of the Participant under all Affiliated Employer defined benefit plans (whether or not terminated) determined as of the close of the Plan Year. (denominator) The lesser of (a) the product of 1.25 multiplied by the dollar limitation in effect for the Plan Year under Code Sections 415(b)(1)(A) or 415(d), or (b) 1.4 multiplied by 100% of the Participant's average compensation for his highest three (3) consecutive Plan Years of participation as adjusted under Treasury Regulation Section 1.415-5. 2.21 "Defined Contribution Plan Fraction" shall mean the following fraction: (numerator) The sum of all Annual Additions to the account of the Participant as of the close of the Plan Year under all defined contribution plans maintained by the Affiliated Employers for the current and prior Limitation Years (whether or not terminated), including this Plan. (denominator) The sum of the lesser of the following amounts determined for such Plan Year and for each prior Plan Year in which the Participant has a Year of Service: (a) 1.25 multiplied by the dollar limitation in effect under Code Section 415(c)(1)(A) for the Plan Year (determined without regard to Code Section 415(c)(6)), or (b) 1.4 multiplied by the amount that may be taken into account under Code Section 415(c)(1)(B) with respect to a Participant for the Plan Year. 2.22 "Determination Date" shall mean with respect to a Plan Year, the last day of the preceding Plan Year. 2.23 "Determination Year" shall mean the Plan Year being tested. 2.24 "Direct Rollover" shall mean a payment by the Plan to the Eligible Retirement Plan specified by the Distributee. 2.25 "Distributee" shall include an Employee or former Employee. In addition, the Employee's or former Employee's surviving spouse and the Employee's or former Employee's spouse or former spouse who is an alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. 2.26 "Elective Employer Contribution" shall mean contributions made pursuant to Section 4.1 during the Plan Year by an Employing Company, at the election of the Participant, in lieu of cash compensation and shall include contributions made pursuant to a salary reduction agreement. 2.27 "Eligible Employee" shall mean an Employee who is employed by an Employing Company and (a) who was eligible to be included in the Plan on January 1, 1991, or (b) who is a regular full-time, regular part-time, or cooperative education employee other than: (1) an Employee who is treated as such solely by reason of the "leased employee" rules of Code Section 414(n); (2) any Employee who is represented by a collective bargaining agent unless the representatives of his bargaining unit and the Employing Company mutually agree to participation in the Plan subject to its terms by members of his bargaining unit; (3) an individual who is a cooperative education employee and who first performs an Hour of Service on or after January 1, 1995; and (4) an individual who is classified by the Employing Company as a temporary employee (who was not eligible to be included in the Plan on January 1, 1991) or an independent contractor, regardless of whether such classification is in error. Effective September 1, 1998, any individual classified by the Employing Company as a temporary employee shall be excluded from the Plan, regardless of any prior inclusion in the Plan and regardless of whether the "temporary employee" classification is determined to be in error. 2.28 "Eligible Participant" shall mean an Eligible Employee who is authorized to have Elective Employer Contributions or Voluntary Participant Contributions allocated to his Account for the Plan Year. 2.29 "Eligible Retirement Plan" shall mean an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code that accepts the Distributee's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to a surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. 2.30 "Eligible Rollover Distribution" shall mean any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: (a) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee, the joint lives (or joint life expectancies) of the Distributee and the Distributee's Beneficiary, or for a specified period of 10 years or more; (b) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; and (c) the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). 2.31 "Employee" shall mean each individual who is employed by an Affiliated Employer under common law and each individual who is required to be treated as an employee pursuant to the "leased employee" rules of Code Section 414(n) other than a leased employee described in Code Section 414(n)(5). 2.32 "Employer Matching Contribution" shall mean a contribution made by an Employing Company pursuant to Section 5.1 with respect to Elective Employer Contributions and Voluntary Participant Contributions made on behalf of each Participant each payroll period. 2.33 "Employing Company" shall mean the Company and any affiliate or subsidiary 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 them. The Employing Companies are set forth on Appendix A to the Plan as updated from time to time. No such entity shall be treated as an Employing Company prior to the date it adopts the Plan. 2.34 "Enrollment Date" shall mean the first day of each payroll period. 2.35 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, or any successor statute, and the rulings and regulations promulgated thereunder. In the event an amendment to ERISA renumbers a section of ERISA referred to in this Plan, any such reference automatically shall become a reference to such section as renumbered. 2.36 "Excess Aggregate Contributions" shall mean the amount referred to in Code Section 401(m)(6)(B) with respect to a Participant. In no event may the Excess Aggregate Contributions for any Highly Compensated Employee exceed the amount of the Employer Matching Contributions or Voluntary Participant Contributions made on behalf of the Highly Compensated Employee for the Plan Year. 2.37 "Excess Deferral Amount" shall mean the amount of Elective Employer Contributions for a calendar year that exceed the Code Section 402(g) limits as allocated to this Plan pursuant to Section 4.3(b). 2.38 "Excess Deferral Contributions" shall mean the amount of Elective Employer Contributions on behalf of a Highly Compensated Employee referred to in Code Section 401(k)(8)(B). 2.39 "Highly Compensated Employee" shall mean (in accordance with and subject to Code Section 414(q) and any regulations, rulings, notices or procedures thereunder), with respect to any Plan Year: (1) any Employee who was a five percent (5%) owner of The Southern Company or an Affiliated Employer (as determined pursuant to Code Section 416) during the Plan Year or the immediately preceding Plan Year, or (2) any Employee who earned more than $80,000 in the preceding Plan Year. The $80,000 amount shall be adjusted for inflation and for short Plan Years, pursuant to Code Section 414(q). The Employer may, at its election, limit Employees earning more than $80,000 to only those Employees who fall within the "top-paid group," as defined in Code Section 414(q) excluding those employees described in Code Section 414(q)(8) for such purpose. In determining whether an Employee is a Highly Compensated Employee, the Committee may make any elections authorized under applicable regulations, rulings, notices, or revenue procedures. 2.40 "Hour of Service" shall mean each hour for which an Employee is paid, or entitled to payment, for the performance of duties for an Affiliated Employer. 2.41 "Investment Fund" shall mean any one of the funds described in Article VIII which constitutes part of the Trust Fund. 2.42 "Key Employee" shall mean any Employee or former Employee (and his Beneficiary) who is a key employee within the meaning of Code Section 416(i)(1). 2.43 "Limitation Year" shall mean the Plan Year. 2.44 "Look-Back Year" shall mean the Plan Year preceding the Determination Year. 2.45 "Non-Highly Compensated Employee" shall mean an Employee who is not a Highly Compensated Employee. 2.46 "Normal Retirement Date" shall mean the first day of the month following a Participant's sixty-fifth (65th) birthday. 2.47 "One-Year Break in Service" shall mean each twelve-consecutive-month period within the period commencing with an Employee's Break-in-Service Date and ending on the date the Employee is again credited with an Hour of Service. 2.48 "Participant" shall mean (a) an Eligible Employee who has elected to participate in the Plan as provided in Article III and whose participation in the Plan at the time of reference has not been terminated as provided in the Plan, (b) an Employee or former Employee who has ceased to be a Participant under (a) above, but for whom an Account is maintained under the Plan, and, effective April 1, 1997, (c) an Eligible Employee who has made a Rollover Contribution to this Plan to the extent that the Provisions of the Plan apply to such Rollover Contribution of the Eligible Employee. 2.49 "Permissive Aggregation Group" shall mean a group of plans consisting of the Required Aggregation Group and, at the election of the Affiliated Employers, such other plan or plans not required to be included in the Required Aggregation Group, provided the resulting group, taken as a whole, would continue to satisfy the provisions of Code Section 401(a)(4) or 410. 2.50 "Plan" shall mean The Southern Company Employee Savings Plan (known as the Employee Savings Plan for The Southern Company System prior to January 1, 1991), as described herein or as from time to time amended. 2.51 "Plan Year" shall mean the twelve-month period commencing January 1st and ending on the last day of December next following. 2.52 "Present Value of Accrued Retirement Income" shall mean an amount determined solely for the purpose of determining if the Plan, or any other plan included in a Required Aggregation Group of which the Plan is a part, is top heavy in accordance with Code Section 416. 2.53 "Required Aggregation Group" shall mean those plans that are required to be aggregated as determined under this Section 2.53. In determining a Required Aggregation Group hereunder, each plan of the Affiliated Employers in which a Key Employee is a participant and each other plan of the Affiliated Employers which enables any plan in which a Key Employee participates to meet the requirements of Code Section 410 or 401(a)(4) will be required to be aggregated. 2.54 "Rollover Contribution" shall mean that portion of an eligible rollover distribution (as defined in Code Section 402(c)(4)) that an Eligible Employee elects to contribute to this Plan in accordance with the requirements of Section 4.11. 2.55 "SEPCO" shall mean Savannah Electric and Power Company. 2.56 "SEPCO Plan" shall mean the Employee Savings Plan of Savannah Electric and Power Company as in effect December 31, 1992. 2.57 "SEPCO Transferred Account" shall mean the total amount credited to the account of a Participant as described in Section 9.1(b). 2.58 "Super-Top-Heavy Group" shall mean an Aggregation Group that would be a Top-Heavy Group if 90% were substituted for 60% in Section 2.60. 2.59 "Surviving Spouse" shall mean the person to whom the Participant is married on the date of his death, if such spouse is then living, provided that the Participant and such spouse shall have been married throughout the one (1) year period ending on the date of the Participant's death. 2.60 "Top-Heavy Group" shall mean an Aggregation Group in which, as of the Determination Date, the sum of: (a) the Present Value of Accrued Retirement Income of Key Employees under all defined benefit plans included in that group, and (b) the Aggregate Accounts of Key Employees under all defined contribution plans included in the group, exceeds 60% of a similar sum determined for all employees. 2.61 "Trust" or "Trust Fund" shall mean the trust established pursuant to the Trust Agreement. 2.62 "Trust Agreement" shall mean the trust agreement between the Company and the Trustee, as described in Article XIV. 2.63 "Trustee" shall mean the person or corporation designated as trustee under the Trust Agreement, including any successor or successors. 2.64 "Valuation Date" shall mean each business day of the New York Stock Exchange. 2.65 "Voluntary Participant Contribution" shall mean a contribution made pursuant to Section 4.6 during the Plan Year. 2.66 "Year of Service" shall mean a twelve-month period of employment as an Employee, including any fractions thereof. Calculation of the twelve-month periods shall commence with the Employee's first day of employment, which is the date on which an Employee first performs an Hour of Service, and shall terminate on his Break-in-Service Date. Thereafter, if he has more than one period of employment as an Employee, his Years of Service for any subsequent period shall commence with the Employee's reemployment date, which is the first date following a Break-in-Service Date on which the Employee performs an Hour of Service, and shall terminate on his next Break-in-Service Date. An Employee who has a Break-in-Service Date and resumes employment with the Affiliated Employers within twelve months of his Break-in-Service Date shall receive a fractional Year of Service for the period of such cessation of employment. For purposes of determining an Employee's eligibility to participate, the following years of service shall also be treated as Years of Service: (a) In respect of an Employee of an Employing Company who transfers to an Employing Company from Southern Energy Resources, Inc. following its adoption of a plan containing a cash or deferred arrangement under Section 401(k) of the Code, his credited years of service under such plan as of his date of transfer. (b) In respect of an Employee of an Employing Company who transfers to an Employing Company from SEPCO on or before December 31, 1992, his credited years of service under the SEPCO Plan for actual service while employed at SEPCO as of the date of his transfer. Notwithstanding anything in this Section 2.66 to the contrary, an Employee shall not receive credit for more than one Year of Service with respect to any twelve-consecutive-month period. ARTICLE III PARTICIPATION 3.1 Eligibility Requirements. Each Eligible Employee who was an active Participant on December 31, 1996 shall continue to be an active Participant in this Plan on January 1, 1997, provided he remains an Eligible Employee. Each other Eligible Employee may elect to participate in the Plan as of any Enrollment Date after he has completed a Year of Service. An Eligible Employee shall make an election to participate by authorizing deductions from or reduction of his Compensation as contributions to the Plan in accordance with Article IV, and directing the investment of such contributions in accordance with Article VIII. Such Compensation deduction and/or reduction authorization and investment direction shall be made in accordance with the procedures established by the Committee. 3.2 Participation upon Reemployment. If an Employee terminates his employment with an Affiliated Employer and is subsequently reemployed as an Eligible Employee, the following rules shall apply in determining his eligibility to participate: (a) If the reemployed Eligible Employee had not completed the Year of Service requirement of Section 3.1 prior to his termination of employment and is reemployed following a One-Year Break in Service, he shall not receive credit for fractional periods of service completed prior to the One-Year Break in Service until he has completed a Year of Service after his return. A reemployed Employee who had not completed the Year of Service requirement and who is reemployed within 12 months of his Break-in-Service Date shall receive service credit for the period in which he performed no services in accordance with Section 2.66. (b) If the reemployed Eligible Employee fulfilled the eligibility requirements of Section 3.1 prior to his termination of employment and is reemployed as an Eligible Employee, whether before or after he incurs a One-Year Break in Service, he may elect to become a Participant in the Plan as of the date of his reemployment. 3.3 No Restoration of Previously Distributed Benefits. A Participant who has terminated his employment with the Affiliated Employers and who has received a distribution of the amount credited to his Account pursuant to Section 12.5 shall not be entitled to restore the amount of such distribution to his Account if he is reemployed and again becomes a Participant in the Plan. 3.4 Loss of Eligible Employee Status. If a Participant loses his status as an Eligible Employee, but remains an Employee, such Participant shall be ineligible to participate and shall be deemed to have elected to suspend making Voluntary Participant Contributions or to have Elective Employer Contributions made on his behalf. 3.5 Special Rule for Scott Paper Company Energy Complex Employees. An Eligible Employee who was an employee of Scott Paper Company Energy Complex on December 16, 1994, and who became an Employee of an Employing Company effective December 17, 1994, shall be credited with a Year of Service as of December 31, 1994, and may elect to become a Participant as of any Enrollment Date commencing on or after January 1, 1995. 3.6 Former Commonwealth Edison of Indiana Employees. Effective January 1, 1998, notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of Commonwealth Edison of Indiana ("ComEd") who was employed by Southern Energy Resources, Inc. on or before December 31, 1997 and is set forth on a schedule of employees acknowledged by the Committee shall be credited with a Year of Service as of December 31, 1997, and may elect to become a Participant as of any Enrollment Date commencing on or after January 1, 1998. In addition, any former employee of ComEd who becomes employed by Southern Energy Resources, Inc. on or after January 1, 1998 but prior to April 1, 1998 (hereafter "Date of Employment") and is set forth on the schedule of employees acknowledged by the Committee shall be credited with a Year of Service as of the day immediately preceding such employee's Date of Employment and may elect to become a Participant as of any Enrollment Date commencing on or after such employee's Date of Employment. 3.7 Military Leave. Notwithstanding any provision of the Plan to the contrary, contributions, benefits, and service credit with respect to qualified military service will be provided in accordance with Section 414(u) of the Code. ARTICLE IV ELECTIVE EMPLOYER CONTRIBUTIONS AND VOLUNTARY PARTICIPANT CONTRIBUTIONS 4.1 Elective Employer Contributions. An Eligible Employee who meets the participation requirements of Article III may elect on a form provided by the Employing Company to have his Compensation reduced by a whole percentage of his Compensation, which percentage shall not be less than one percent (1%) nor more than sixteen percent (16%) of his Compensation, such Elective Employer Contribution to be contributed to his Account under the Plan. 4.2 Maximum Amount of Elective Employer Contributions. The maximum amount of Elective Employer Contributions that may be made on behalf of a Participant during any Plan Year to this Plan or any other qualified plan maintained by an Employing Company shall not exceed the dollar limitation set forth in Section 402(g) of the Code in effect at the beginning of such Plan Year. 4.3 Distribution of Excess Deferral Amounts. (a) In General. Notwithstanding any other provision of the Plan, Excess Deferral Amounts and income allocable thereto shall be distributed (and any corresponding Employer Matching Contributions shall be forfeited) no later than April 15, 1997, and each April 15 thereafter, to Participants who allocate (or are deemed to allocate) such amounts to this Plan pursuant to (b) below for the preceding calendar year. Excess Deferral Amounts that are distributed shall not be treated as an Annual Addition. Any Employer Matching Contributions forfeited pursuant to this subsection (a) shall be applied, subject to Section 6.1, toward funding Employing Company contributions (for the Plan Year immediately following the Plan Year to which such forfeited Employer Matching Contributions relate) or distributed, as directed by the Committee, to the extent permitted by applicable law. (b) Assignment. The Participant's allocation of amounts in excess of the Code Section 402(g) limits to this Plan shall be in writing; shall be submitted to the Committee no later than March 1; shall specify the Participant's Excess Deferral Amount for the preceding calendar year; and shall be accompanied by the Participant's written statement that if such amounts are not distributed, such Excess Deferral Amount, when added to amounts deferred under other plans or arrangements described in Section 401(k), 408(k), 408(p), 402(h)(1)(B), 457, 501(c)(18), or 403(b) of the Code, exceeds the limit imposed on the Participant by Section 402(g) of the Code for the year in which the deferral occurred. A Participant is deemed to notify the Committee of any Excess Deferral Amounts that arise by taking into account only those deferrals under this Plan and any other plans of an Affiliated Employer. (c) Determination of Income or Loss. The Excess Deferral Amount distributed to a Participant with respect to a calendar year shall be adjusted for income or loss through the last day of the Plan Year or the date of distribution, as determined by the Committee. The income or loss allocable to Excess Deferral Amounts is the sum of: (1) income or loss allocated to the Participant's Account for the taxable year multiplied by a fraction, the numerator of which is such Participant's Excess Deferral Amount for the year and the denominator is the Participant's Account balance attributable to Elective Employer Contributions, minus any income or plus any loss occurring during the Plan Year; and (2) if the Committee shall determine in its sole discretion, ten percent (10%) of the amount determined under (1) above multiplied by the number of whole calendar months between the end of the Plan Year and the date of the distribution, counting the month of distribution if distribution occurs after the 15th of the month. Notwithstanding the above, the Committee may designate any reasonable method for computing the income or loss allocable to Excess Deferral Amounts, provided that the method does not violate Section 401(a)(4) of the Code, is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income or loss to Participants' Accounts. (3) Maximum Distribution Amount. The Excess Deferral Amount, which would otherwise be distributed to the Participant, shall, if there is a loss allocable to such Excess Deferral Amount, in no event be less than the lesser of the Participant's Account under the Plan attributable to Elective Employer Contributions or the Participant's Elective Employer Contributions for the Plan Year. 4.4 Additional Rules Regarding Elective Employer Contributions. Salary reduction agreements shall be governed by the following: (a) A salary reduction agreement shall apply to payroll periods during which such salary reduction agreement is in effect. The Committee, in its discretion, may establish administrative procedures whereby the actual reduction in Compensation may be made to coincide with each payroll period of the Employing Company, or at such other times as the Committee may determine. (b) The Employing Company may amend or revoke its salary reduction agreement with any Participant at any time, if the Employing Company determines that such revocation or amendment is necessary to ensure that a Participant's additions for any Plan Year will not exceed the limitations of Sections 4.2 and 6.1 of the Plan or to ensure that the Actual Deferral Percentage Test is satisfied. (c) Except as required under (b) above, and under Section 4.5(d) below, no amounts attributable to Elective Employer Contributions may be distributed to a Participant or his Beneficiary from his Account prior to the earlier of: (1) the separation from service, death or disability of the Participant; (2) the attainment of age 59 1/2 by the Participant; (3) the termination of the Plan without establishment of a successor plan; (4) a financial hardship of the Participant pursuant to Section 11.6 of the Plan; (5) the date of a sale by an Employing Company to an entity that is not an Affiliated Employer of substantially all of the assets (within the meaning of Code Section 409(d)(2)) with respect to a Participant who continues employment with the corporation acquiring such assets; or (6) the date of the sale by an Employing Company or an Affiliated Employer of its interest in a subsidiary (within the meaning of Code Section 409(d)(3)) to an entity which is not an Affiliated Employer with respect to the Participant who continues employment with such subsidiary. 4.5 Section 401(k) Nondiscrimination Tests. (a) Actual Deferral Percentage Test. The Plan shall satisfy the nondiscrimination test of Section 401(k)(3) of the Code, under which no Elective Employer Contributions shall be made that would cause the Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees to exceed (1) or (2) as follows: (1) For Plan Years commencing prior to January 1, 1998: (A) The Average Actual Deferral Percentage for the Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Actual Deferral Percentage for Eligible Participants who are Non-Highly Compensated Employees for the current Plan Year multiplied by 1.25; or (B) The Average Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Actual Deferral Percentage for Eligible Participants who are Non-Highly Compensated Employees in the current Plan Year multiplied by two (2), provided that the Average Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year does not exceed the Average Actual Deferral Percentage for Eligible Participants who are Non-Highly Compensated Employees in the current Plan Year by more than two (2) percentage points. (2) For Plan Years commencing on and after January 1, 1998: (A) The Average Actual Deferral Percentage for the Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Actual Deferral Percentage for the prior Plan Year for Eligible Participants who were Non-Highly Compensated Employees for the prior Plan Year multiplied by 1.25; or (B) The Average Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Actual Deferral Percentage for Eligible Participants who were Non-Highly Compensated Employees in the prior Plan Year multiplied by two (2), provided that the Average Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year does not exceed the Average Actual Deferral Percentage for the prior Plan Year for Eligible Participants who were Non-Highly Compensated Employees in the prior Plan Year by more than two (2) percentage points. (b) Distribution of Excess Deferral Contributions. (1) In General. The Excess Deferral Contributions for a Highly Compensated Employee for a Plan Year which are to be distributed shall be distributed such that the Highly Compensated Employee with the highest amount of Elective Employer Contributions for the Plan Year shall be reduced to the extent required to: (A) distribute the total amount of Excess Deferral Contributions, or (B) cause the amount of such Highly Compensated Employee's Elective Employer Contributions to equal the amount of Elective Employer Contributions of the Highly Compensated Employee with the next highest amount of Elective Employer Contributions for the Plan Year. This process must be repeated until all Excess Deferral Contributions are distributed. Excess Deferral Contributions plus any income and minus any loss allocable thereto shall be distributed (and any corresponding Employer Matching Contribution shall be forfeited) to Participants on whose behalf such Excess Deferral Contributions were made within two and one-half (2-1/2) months after the last day of the Plan Year in which such excess amounts arose, and in any event not later than the last day of the Plan Year following the close of the Plan Year for which such contributions were made. Distribution of Excess Deferral Contributions shall be made to Highly Compensated Employees in accordance with this Section 4.5(b). Any Employer Matching Contributions forfeited pursuant to this Subsection (b)(1) shall be applied, subject to Section 6.1, toward funding Employing Company contributions (for the Plan Year immediately following the Plan Year to which such forfeited Employer Matching Contributions relate) or distributed, as directed by the Committee, to the extent permitted by applicable law. (2) Determination of Income or Loss. Excess Deferral Contributions to be distributed shall be adjusted for any income or loss through the last day of the Plan Year or the date of distribution, as determined by the Committee. The income or loss allocable to such Excess Deferral Contributions is the sum of: (A) income or loss allocated to the Participant's Account for the taxable year multiplied by a fraction, the numerator of which is the Participant's Excess Deferral Contributions to be distributed for the year and the denominator is the Participant's Account balance attributable to Elective Employer Contributions, minus any income or plus any loss occurring during the Plan Year; and (B) if the Committee shall determine in its sole discretion, ten percent (10%) of the amount determined under (A) above multiplied by the number of whole calendar months between the end of the Plan Year and the date of the distribution, counting the month of distribution if distribution occurs after the 15th of the month. Notwithstanding the above, the Committee may designate any reasonable method for computing the income or loss allocable to Excess Deferral Contributions, provided that the method does not violate Section 401(a)(4) of the Code, is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income or loss to Participants' Accounts. (3) Maximum Distribution Amount. The Excess Deferral Contributions which would otherwise be distributed to the Participant shall be adjusted for income; shall be reduced, in accordance with regulations, by the Excess Deferral Amount distributed to the Participant; and shall, if there is a loss allocable to the Excess Deferral Contributions, in no event be less than the lesser of the Participant's Account under the Plan attributable to Elective Employer Contributions or the Participant's Elective Employer Contributions for the Plan Year. (c) Special Rules. (1) For purposes of this Section 4.5, the Actual Deferral Percentage for any Eligible Participant who is a Highly Compensated Employee for the Plan Year and who is eligible to have deferral contributions allocated to his account under two (2) or more plans or arrangements described in Section 401(k) of the Code that are maintained by an Affiliated Employer shall be determined as if all such deferral contributions were made under a single arrangement. If a Highly Compensated Employee participates in two (2) or more cash or deferred arrangements that have different plan years, all cash or deferred arrangements ending with or within the same calendar year shall be treated as a single arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under Code Section 401(k). (2) In the event that this Plan satisfies the requirements of Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with this Plan, then the actual deferral percentages shall be determined as if all such plans were a single plan. 4.6 Voluntary Participant Contributions. An Eligible Employee who meets the participation requirements of Article III may elect in accordance with the procedures established by the Committee to contribute to his Account a Voluntary Participant Contribution consisting of any whole percentage of his Compensation, which percentage is not less than one percent (1%) nor more than sixteen percent (16%) of his Compensation. The maximum Voluntary Participant Contribution shall be reduced by the percent, if any, which is contributed as an Elective Employer Contribution on behalf of such Participant under Section 4.1. 4.7 Manner and Time of Payment of Elective Employer Contributions and Voluntary Participant Contributions. Contributions made in accordance with Sections 4.1 and 4.6 will be rounded to the next higher multiple of one dollar on a monthly basis. They will be made only through payroll deductions and will be effective as of the payroll period commencing as soon as practicable after the date on which the Participant elects to commence participation in the Plan. Contributions shall be remitted to the Trustee as of the earliest date on which such contributions can reasonably be segregated from each Employing Company's general assets, but in any event not later than the fifteenth (15th) business day of the month following the month during which such amounts would otherwise have been payable to the Participant in cash or such earlier time as may be prescribed by applicable law. 4.8 Change in Contribution Rate. A Participant may prospectively change the percentage of his Compensation that he has authorized as the Elective Employer Contribution to be made on his behalf or his Voluntary Participant Contribution to another permissible percentage in accordance with the procedures established by the Committee. Such election shall be effective as soon as practicable after it is made. 4.9 Change in Contribution Amount. In the event of a change in the Compensation of a Participant, the percentage of the Elective Employer Contribution made on his behalf or his Voluntary Participant Contribution currently in effect shall be applied as soon as practicable with respect to such changed Compensation without action by the Participant. 4.10 Rollover Contributions and Direct Transfers from the SEPCO and ECMC Plans. (a) Effective December 1, 1991, a Participant shall be entitled to transfer (or cause to be transferred directly from the trustee) to the Trust to be held as part of his Account all or a portion of the fair market value of the cash or other property a Participant receives in the distribution of his accrued benefits under the Profit Sharing Plan for Electric City Merchandise Company, Inc. ("ECMC Plan"), reduced by any voluntary participant contributions under such plan. Such rollover contribution may only be made within sixty (60) days following the date the Participant receives the distribution (or within such additional period as may be provided under Section 408 of the Code if the Participant shall have made a timely deposit of the distribution in an individual retirement account). No such rollover contribution or trustee to Trustee transfer shall be made by a Participant (or on his behalf) if not otherwise permissible under the Code or if such rollover contribution or transfer would subject this Plan to the requirements of Section 401(a)(11)(A) of the Code. Notwithstanding the foregoing, the Trustee is specifically authorized to accept any rollover accounts under the terms of the SEPCO Plan as are necessary to reflect a Participant's interest in the Plan resulting from the merger of the SEPCO Plan into this Plan effective as of January 1, 1993. Any such rollover account shall be held as part of the Participant's Account and shall be subject to the requirements of Article XVIII. (b) Any amounts so transferred to the Trust shall be entitled to share in earnings or losses of the Trust in the same manner as other Employing Company contributions to the Trust. (c) The portion of a Participant's Account attributable to any rollover contribution or trustee to Trustee transfer shall be distributed with the balance of the Participant's Account pursuant to Article XII of the Plan. 4.11 Rollovers from Other Plans. An Eligible Employee who is hired or rehired on or after April 1, 1997 and has received a distribution of his interest in a retirement plan of a former employer under circumstances meeting the requirements of Section 402(c)(4) of the Code relating to eligible rollover distributions from qualified trusts may elect to deposit all or any portion (as designated by such Employee) of the amount of such distribution as a Rollover Contribution to this Plan. A Rollover Contribution may be made only within 60 days following the date the Employee receives the distribution from the plan of his former employer (or within such additional period as may be provided under Section 408 of the Code if the Eligible Employee shall have made a timely deposit of the distribution in an individual retirement account) and within 12 months of the date of his employment or reemployment with an Employing Company. In addition to the foregoing, an Eligible Employee described in Section 3.5 may elect to make a Rollover Contribution to this Plan without regard to his date of employment, provided that such Rollover Contribution is deposited with this Plan within the period beginning April 1, 1997 and ending June 30, 1997 and which otherwise satisfies the requirements of this Section 4.11. The Committee shall establish rules and procedures to implement this Section 4.11, including without limitation, such procedures as may be appropriate to permit the Committee to verify the tax qualified status of the plan of the former employer and compliance with any applicable provisions of the Code relating to such contributions. The amount contributed to the Trustee pursuant to this Section 4.11 shall be placed in the Eligible Employee's Rollover Contribution subaccount for the benefit of the Eligible Employee pursuant to Section 9.1. The Eligible Employee shall have a fully vested interest in the balance of his Rollover Contribution subaccount at all times and such Rollover Contribution subaccount shall share in the earnings, gains, and losses of the Trust Fund as set forth in Article IX of the Plan. An Employee shall be entitled to a distribution of his Rollover Contribution subaccount pursuant to the applicable provisions of Articles XI and XII hereof. ARTICLE V EMPLOYER MATCHING CONTRIBUTIONS 5.1 Amount of Employer Matching Contributions. The Board of Directors, in its sole and absolute discretion, shall determine the amount of Employer Matching Contributions that shall be made by each Employing Company on behalf of each Participant in its employ. The amount of Employer Matching Contributions shall be fixed by resolutions of the Board of Directors and communicated to each Employing Company prior to the first day of each Plan Year. 5.2 Payment of Employer Matching Contributions. Except as provided herein, Employer Matching Contributions shall be remitted to the Trustee as soon as practicable after the payroll period to which they relate. 5.3 Limitations on Employer Matching Contributions and Voluntary Participant Contributions. (a) Actual Contribution Percentage Test. The Plan shall satisfy the nondiscrimination test of Section 401(m) of the Code, under which the Average Contribution Percentage for Eligible Participants shall not exceed (1) or (2) as follows: (1) For Plan Years commencing prior to January 1, 1998: (A) The Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly Compensated Employees in the current Plan Year multiplied by 1.25; or (B) The Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly Compensated Employees in the current Plan Year multiplied by two (2), provided that the Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year does not exceed the Average Contribution Percentage for Eligible Participants who are Non-Highly Compensated Employees in the current Plan Year by more than two (2) percentage points. (2) For Plan Years commencing on and after January 1, 1998: (A) The Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Contribution Percentage for the prior Plan Year for Eligible Participants who were Non-Highly Compensated Employees in the prior Plan Year multiplied by 1.25; or (B) The Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year shall not exceed the Average Contribution Percentage for Eligible Participants who were Non-Highly Compensated Employees in the prior Plan Year multiplied by two (2), provided that the Average Contribution Percentage for Eligible Participants who are Highly Compensated Employees in the current Plan Year does not exceed the Average Contribution Percentage for the prior Plan Year for Eligible Participants who were Non-Highly Compensated Employees in the prior Plan Year by more than two (2) percentage points. (b) Distribution of Excess Aggregate Contributions. (1) In General. The Excess Aggregate Contributions for a Highly Compensated Employee for a Plan Year which are to be distributed shall be distributed such that the Highly Compensated Employee with the highest amount of Matching Employer Contributions and Voluntary Participant Contributions shall be reduced to the extent required to: (A) distribute the total amount of Excess Aggregate Contributions, or (B) cause the amount of such Highly Compensated Employee's Employer Matching Contributions and Voluntary Participant Contributions to equal the amount of Employer Matching Contributions and Voluntary Participant Contributions of the Highly Compensated Employee with the next highest amount of Employer Matching Contributions and Voluntary Participant Contributions for the Plan Year. This process must be repeated until all Excess Aggregate Contributions are distributed. Excess Aggregate Contributions, plus any income and minus any loss allocable thereto, shall be distributed (or, if forfeitable, forfeited) within 2-1/2 months after the last day of the Plan Year in which such excess amounts arose, and in any event not later than the last day of the following Plan Year, to Participants to whose Accounts such Excess Aggregate Contributions were allocated for the Plan Year. Excess Aggregate Contributions shall be treated as Annual Additions. (2) Determination of Income or Loss. Excess Aggregate Contributions to be distributed shall be adjusted for any income or loss through the last day of the Plan Year or the date of distribution, as determined by the Committee. The income or loss allocable to such Excess Aggregate Contributions is the sum of: (A) income or loss allocated to the Participant's Account attributable to Voluntary Participant Contributions and Employer Matching Contributions to be distributed for the Plan Year multiplied by a fraction, the numerator of which is the Participant's Excess Aggregate Contributions for the year and the denominator is the Participant's Account balance attributable to Voluntary Participant Contributions and Employer Matching Contributions, minus any income or plus any loss occurring during the Plan Year; and (B) if the Committee shall determine in its sole discretion, ten percent (10%) of the amount determined under (1) above multiplied by the number of whole calendar months between the end of the Plan Year and the date of the distribution, counting the month of distribution if distribution occurs after the 15th of the month. Notwithstanding the above, the Committee may designate any reasonable method for computing the income or loss allocable to Excess Aggregate Contributions, provided that the method does not violate Section 401(a)(4) of the Code, is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income or loss to Participants' Accounts. (3) Accounting for Excess Aggregate Contributions. Excess Aggregate Contributions shall be distributed first from Voluntary Participant Contributions allocated to the Participant's Account and any corresponding Employer Matching Contribution shall also be forfeited and then, if necessary, distributed from the remaining Employer Matching Contribution allocated to the Participant's Account. (c) Special Rules. (1) The Contribution Percentage for any Eligible Participant who is a Highly Compensated Employee for the Plan Year and who is eligible to make voluntary participant contributions, to receive employer matching contributions, or to make deferral contributions under two or more plans described in Section 401(a) of the Code or arrangements described in Section 401(k) of the Code that are maintained by an Affiliated Employer shall be determined as if all such contributions were made under a single plan. (2) In the event that this Plan satisfies the requirements of Code Section 401(m), 401(a)(4), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of Code Section 401(m), 401(a)(4), or 410(b) only if aggregated with this Plan, then the contribution percentages shall be determined as if all such plans were a single plan. (3) The determination and treatment of the Contribution Percentage of any Eligible Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. 5.4 Multiple Use Limitation. If both the Average Actual Deferral Percentage and the Average Contribution Percentage of the Highly Compensated Employees exceed 1.25 of the Average Actual Deferral Percentage and the Average Contribution Percentage of the Non-Highly Compensated Employees and if one or more Highly Compensated Employees makes Elective Employer Contributions and receives Employer Matching Contributions, and the sum of the Actual Deferral Percentage and Actual Contribution Percentage of those Highly Compensated Employees subject to either or both tests exceed the aggregate limit as defined in Treasury Regulation Section 1.401(m)-2, then the Employer Matching Contribution of those Highly Compensated Employees who participate in the cash or deferred arrangement will be reduced (beginning with such Highly Compensated Employee whose Employer Matching Contribution is the highest) so that the aggregate limit is not exceeded. For purposes of determining if the aggregate limit has been exceeded, the Actual Deferral Percentage and the Contribution Percentage of the Highly Compensated Employees shall be determined after any corrections required to meet the Actual Deferral Percentage Test and the Actual Contribution Percentage Test. 5.5 Reversion of Employing Company Contributions. Employing Company contributions computed in accordance with the provisions of this Plan shall revert to the Employing Company under the following circumstances: (a) In the case of an Employing Company contribution which is made by reason of a mistake of fact, such contribution upon written direction of the Employing Company shall be returned to the Employing Company within one year after the payment of the contribution. (b) If any Employing Company contribution is determined to be nondeductible under Section 404 of the Code, then such Employing Company contribution, to the extent that it is determined to be nondeductible, upon written direction of the Employing Company shall be returned to the Employing Company within one year after the disallowance of the deduction. The amount which may be returned to the Employing Company under this Section 5.7 is the excess of (1) the amount contributed over (2) the amount that would have been contributed had there not occurred a mistake of fact or disallowance of the deduction. Earnings attributable to the excess contribution shall not be returned to the Employing Company, but losses attributable thereto shall reduce the amount to be so returned. If the withdrawal of the amount attributable to the mistaken contribution would cause the balance of the Account of any Participant to be reduced to less than the balance which would have been in the Account had the mistaken amount not been contributed, then the amount to be returned to the Employing Company shall be limited so as to avoid such reduction. 5.6 Correction of Prior Incorrect Allocations and Distributions. Notwithstanding any provisions contained herein to the contrary, in the event that, as of any Valuation Date, adjustments are required in any Participants' Accounts to correct any incorrect allocation of contributions or investment earnings or losses, or such other discrepancies in Account balances that may have occurred previously, the Employing Companies may make additional contributions to the Plan to be applied to correct such incorrect allocations or discrepancies. The additional contributions shall be allocated by the Committee to adjust such Participants' Accounts to the value which would have existed on said Valuation Date had there been no prior incorrect allocation or discrepancies. The Committee shall also be authorized to take such other actions as it deems necessary to correct prior incorrect allocations or discrepancies in the Accounts of Participants under the Plan. ARTICLE VI LIMITATIONS ON CONTRIBUTIONS 6.1 Section 415 Limitations. (a) Notwithstanding any provision of the Plan to the contrary, the total Annual Additions allocated to the Account (and the accounts under all defined contribution plans maintained by an Affiliated Employer) of any Participant for any Limitation Year in accordance with Code Section 415 and the regulations thereunder, which are incorporated herein by this reference, shall not exceed the lesser of the following amounts: (1) twenty-five percent (25%) of the Participant's compensation in the Limitation Year; or (2) $30,000 (as adjusted pursuant to Code Section 415(d)(1)(C)). (b) If a Participant is also a participant in any Affiliated Employer's defined benefit plan, then in addition to the limitations in (a) above, the sum of the Defined Benefit Plan Fraction and Defined Contribution Plan Fraction shall not exceed 1.0 for any Limitation Year. (c) For purposes of this Section 6.1, wherever the term "compensation" is used, such term shall mean compensation as defined in Code Section 415(c)(3) and any rulings and regulations thereunder. (d) The Annual Addition for any Plan Year beginning before January 1, 1987 shall not be recomputed to treat all Voluntary Participant Contributions as an Annual Addition. (e) If the Plan satisfied the applicable requirements of Section 415 of the Code as in effect for all Plan Years beginning before January 1, 1987, an amount shall be subtracted from the numerator of the Defined Contribution Plan Fraction (not exceeding the numerator), as prescribed by the Secretary of the Treasury, so that the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction computed under Section 415(e)(1) of the Code (as revised by this Section 6.1) does not exceed 1.0 for the Plan Year. In addition, the Defined Contribution Plan Fraction for a Participant may be determined by taking into account the special transition rule of Code Section 415(e)(6). (f) If the Participant was a participant in one or more defined benefit plans maintained by the Affiliated Employers which were in existence on July 1, 1982, the denominator of the Defined Benefit Plan Fraction shall not be less than 1.25% of the sum of the annual benefits under such plans which the Participant had accrued as of the later of September 30, 1983 or the end of the last Limitation Year beginning before January 1, 1983. The preceding sentence applies only if the defined benefit plans individually, and in the aggregate satisfy the requirements of Code Section 415 as in effect at the end of the 1982 Limitation Year. 6.2 Correction of Contributions in Excess of Section 415 Limits. If the Annual Additions for a Participant exceed the limits of Section 6.1 as a result of the allocation of forfeitures, if any, a reasonable error in estimating a Participant's annual compensation for purposes of the Plan, a reasonable error in determining the amount of elective deferrals (within the meaning of Section 402(g)(3) of the Code) that may be made with respect to any individual, or under other limited facts and circumstances that the Commissioner of the Treasury finds justify the availability of the rules set forth in this Section 6.2, the excess amounts shall not be deemed Annual Additions if they are treated in accordance with any one or more or any combination of the following: (a) distribute to the Participant that portion, or all, of his Elective Employer Contributions (as adjusted for income and loss) as is necessary to ensure compliance with Section 6.1; (b) return to the Participant that portion, or all, of his Voluntary Participant Contributions (as adjusted for income and loss) as is necessary to ensure compliance with Section 6.1; and (c) forfeiture of that portion, or all, of the Employer Matching Contributions (as adjusted for income and loss) and any forfeitures of Employer contributions that were allocated to the Participant's Account (as adjusted for income and loss), as is necessary to ensure compliance with Section 6.1. Any amounts distributed or returned to the Participant under (a) or (b) above shall be disregarded for purposes of the Actual Deferral Percentage Test and for purposes of the Actual Contribution Percentage Test. Any amounts forfeited under this Section 6.2 shall be held in a suspense account and shall be applied, subject to Section 6.1, toward funding the Employer Matching Contributions for the next succeeding Plan Year. Such application shall be made prior to any Employing Company contributions and prior to any Employer Matching Contributions that would constitute Annual Additions. No income or investment gains and losses shall be allocated to the suspense account provided for under this Section 6.2. If any amount remains in a suspense account provided for under this Section 6.2 upon termination of this Plan, such amount will revert to the Employing Companies notwithstanding any other provision of this Plan. 6.3 Combination of Plans. Notwithstanding any provisions contained herein to the contrary, in the event that a Participant participates in a defined contribution plan or defined benefit plan required to be aggregated with this Plan under Code Section 415(g) and the sum of the Defined Contribution Plan Fraction and Defined Benefit Plan Fraction with respect to a Participant exceeds the limitations contained in Section 6.1(b), corrective adjustments (a) for an Employee shall not be made under this Plan until made under such other defined benefit plan but (b) for a Participant whose distribution of benefit payments has commenced under such defined benefit plan, shall be made under The Southern Company Employee Stock Ownership Plan ("ESOP") and then, to the extent necessary, under The Southern Company Performance Sharing Plan ("PSP") and then, to the extent necessary, under such other defined benefit plan and then, to the extent necessary, under this Plan. If an Employee participates in more than one defined contribution plan maintained by an Affiliated Employer and his Annual Additions exceed the limitations of Section 6.1(a), corrective adjustments shall be made first under this Plan and then, to the extent necessary, under the PSP and then, to the extent necessary, under the ESOP. ARTICLE VII SUSPENSION OF CONTRIBUTIONS 7.1 Suspension of Contributions. A Participant may (on a prospective basis) voluntarily suspend the Elective Employer Contributions made on his behalf and his Voluntary Participant Contributions in accordance with the procedures established by the Committee. Such suspension shall be effective as soon as practicable after it is made. Whenever Elective Employer Contributions made on a Participant's behalf and Voluntary Participant Contributions are suspended, Employer Matching Contributions shall also be suspended. 7.2 Resumption of Contributions. A Participant may terminate prospectively any such suspension in accordance with the procedures established by the Committee. Such resumption of contributions shall be effective as soon as practicable after the election to terminate prospectively the suspension is made. There shall be no make up of any contributions by a Participant or by an Employing Company with respect to a period of suspension. ARTICLE VIII INVESTMENT OF CONTRIBUTIONS 8.1 Investment Funds. The Investment Funds shall be selected from time to time by the Pension Fund Investment Review Committee of the Southern Company System. In addition to such other Investment Funds selected by the Pension Fund Investment Review Committee, the Investment Funds shall include the "Company Stock Fund". The Company Stock Fund shall be invested and reinvested in Common Stock, provided that funds applicable to the purchase of Common Stock pending investment of such funds may be temporarily invested in short-term United States Government obligations, other obligations guaranteed by the United States Government, commercial paper, or certificates of deposit, and, if the Trustee so determines, may be transferred to money market funds utilized by the Trustee for qualified employee benefit trusts. 8.2 Investment of Participant Contributions. Each Participant shall direct, at the time he elects to participate in the Plan and at such other times as may be directed by the Committee or pursuant to Section 8.6, that his Elective Employer Contributions and Voluntary Participant Contributions be invested in one or more of the Investment Funds, provided such investments are made in one-percent (1%) increments. 8.3 Investment of Employer Matching Contributions. Employer Matching Contributions shall be invested entirely in the Company Stock Fund and shall remain invested in the Company Stock Fund except as follows: (a) Any Participant whose employment with the Affiliated Employers is terminated as a result of his retirement pursuant to the defined benefit pension plan of an Affiliated Employer may elect to invest the amount credited to his Employer Matching Contribution subaccount in any of the Investment Funds under this Plan as provided in Section 8.5; and (b) Any Participant may elect at any time on or after the fifth anniversary of the Enrollment Date on which he first became a Participant in this Plan to invest a portion of the amount credited to his Employer Matching Contribution subaccount in any of the Investment Funds under this Plan as provided in Section 8.5, except that the amount subject to such election may not exceed fifty percent (50%) of the amount of Common Stock credited to his Employer Matching Contribution subaccount at the time the election is made. 8.4 Investment of Earnings. Interest, dividends, if any, and other distributions received by the Trustee with respect to an Investment Fund shall be invested in such Investment Fund. 8.5 Transfer of Assets between Funds. A Participant may direct in accordance with the provisions of this Section 8.5 and such procedures established by the Committee that all of his interest in an Investment Fund or Funds attributable to amounts in his Account (including Employer Matching Contributions other than those required to be invested in the Company Stock Fund pursuant to Section 8.3) or any portion of such amount (expressed in number of shares, whole dollar amounts, or one-percent (1%) increments) to the credit of his Account be transferred and invested by the Trustee as of such date in any other Investment Fund as designated by the Participant. Such direction shall be effective as soon as practicable after it is made. 8.6 Change in Investment Direction. Any investment direction given by a Participant shall continue in effect until changed by the Participant. A Participant may change his investment direction as to the future contributions and allocations to his Account (other than Employer Matching Contributions) in accordance with the procedures established by the Committee, and such direction shall be effective as soon as practicable after it is made. 8.7 Section 404(c) Plan. This Plan is intended to be a plan described in ERISA Section 404(c) and shall be interpreted in accordance with Department of Labor Regulations Section 1.404c-1, which is incorporated herein by this reference. The Committee shall take such actions as it deems necessary or appropriate in its discretion to cause the Plan to comply with such requirements, including, but not limited to, providing Participants with the right to request and receive written confirmation of their investment instructions. Further, the Committee shall take such actions as it deems necessary or appropriate in its discretion (a) to ensure that confidentiality procedures with respect to a Participant's ownership of Common Stock and the exercise of ownership rights with respect to such Common Stock are adequate and utilized, and (b) to appoint an independent fiduciary to carry out such actions as the Committee determines involve the potential for undue influence on Participants with regard to the direct or indirect exercise of shareholder rights with respect to Common Stock. ARTICLE IX MAINTENANCE AND VALUATION OF PARTICIPANTS' ACCOUNTS 9.1 Establishment of Accounts. (a) An Account shall be established for each Participant. In addition, subaccounts shall be established for each Participant to reflect all Elective Employer Contributions, Voluntary Participant Contributions, Employer Matching Contributions, Rollover Contributions (effective as of April 1, 1997), and rollover contributions from the SEPCO Plan (and the earnings and/or losses on each subaccount). Each Participant will be furnished a statement of his Account at least annually and upon any distribution. (b) Effective as of January 1, 1993, the Committee shall also establish a subaccount known as a Participant's SEPCO Transferred Account to reflect the Participant's interest in the Plan resulting from the merger of the SEPCO Plan into this Plan effective as of January 1, 1993. To the extent that a Participant's Salary Deferral Account, Employer Contribution Account, and Rollover Account (as those terms were defined under the SEPCO Plan), were transferred to this Plan from the SEPCO Plan, such accounts shall retain their character as participant deferral, employer, or rollover contributions, respectively, and the Committee shall establish and maintain such bookkeeping accounts as it deems necessary to account for such contributions, and any subsequent earnings or losses attributable thereto, under this Plan. 9.2 Valuation of Investment Funds. A Participant's Account in respect of his interest in each Investment Fund shall be credited or charged, as the case may be, as of each Valuation Date with the dividends, income, gains, appreciation, losses, depreciation, forfeitures, expenses, and other transactions with respect to such Investment Fund for the Valuation Date as of which such credit or charge accrued. Such credits or charges to a Participant's Account shall be made in such proportions and by such method or formula as shall be deemed by the Committee to be necessary or appropriate to account for each Participant's proportionate beneficial interest in the Trust Fund in respect of his interest in each Investment Fund. Investments of each Investment Fund shall be valued at their fair market values as of each Valuation Date as determined by the Trustee, and such valuation shall conclusively establish such value. 9.3 Rights in Investment Funds. Nothing contained in this Article IX shall be deemed to give any Participant any interest in any specific property in any Investment Fund or any interest, other than the right to receive payments or distributions in accordance with the Plan or the right to instruct the Trustee how to vote Common Stock as provided in Section 14.3. ARTICLE X VESTING 10.1 Vesting. The amount to the credit of a Participant's Account shall at all times be fully vested and nonforfeitable. ARTICLE XI WITHDRAWALS AND LOANS 11.1 Withdrawals by Participants. (a) Subject to the provisions of Article XII, this Section 11.1, and Sections 11.2 through 11.6, a Participant may make withdrawals from his Account effective as of any Valuation Date in the order of priority listed below: (1) All or a portion of the value of his Account attributable to Voluntary Participant Contributions (not including any earnings or appreciation thereon) made prior to January 1, 1987; (2) All amounts described above, plus all or a portion of the value of his Account attributable to Voluntary Participant Contributions, plus a ratable portion of the earnings and/or appreciation on Voluntary Participant Contributions; (3) All amounts described above, plus effective April 1, 1997, all or a portion of the value of his Account attributable to Rollover Contributions (including earnings and appreciation thereon); (4) All amounts described above, plus up to fifty percent (50%) of the value of his Account attributable to Employer Matching Contributions (including earnings and appreciation thereon) allocated to his Account; provided, however, that said Participant shall have participated in the Plan for not less than sixty (60) months at the time of the withdrawal; (5)(A) For Participants who have not attained age 59 1/2 or separated from service with the Affiliated Employers (within the meaning of Code Section 401(k)(2)(B)(i)(I)), all amounts described above, plus all or a portion of the value of his Account attributable to Elective Employer Contributions (not including any earnings or appreciation thereon for Plan Years beginning after December 31, 1988); and (B) For Participants who have attained age 59 1/2 or separated from service with the Affiliated Employers (within the meaning of Code Section 401(k)(2)(B)(i)(I)), all amounts described above, plus all or a portion of the value of his Account attributable to any earnings or appreciation on Elective Employer Contributions. (b) Notwithstanding the foregoing, withdrawals from a Participant's SEPCO Transferred Account shall be made in accordance with Article XVIII. 11.2 Notice of Withdrawal. Notice of withdrawal must be given by a Participant in accordance with the procedures established by the Committee, and if such withdrawal would constitute an eligible rollover distribution (within the meaning of Code Section 402(c)(4)), the consent and notice requirements of Section 12.10 must be satisfied. Payment of a withdrawal shall be made as soon as practicable and in accordance with Section 12.10, if applicable. 11.3 Form of Withdrawal. All distributions under this Article XI shall be made in the form of cash, provided that with respect to any distribution which is attributable to Common Stock the Participant shall have the right to demand that such portion of the distribution be made in the form of Common Stock to the extent of the whole number of shares of Common Stock in his Account. Such demand must be made in accordance with the procedures established by the Committee. 11.4 Minimum Withdrawal. No distribution under this Article XI shall be permitted in an amount which has a value of less than $300, unless the value of the amount available under the selected option is less than $300, in which case such available amount will be distributed. 11.5 Source of Withdrawal. Withdrawals shall be made in accordance with the instructions of the Participant from each of the Investment Funds in which the amount to be distributed is invested. The value of the amount to be distributed under any option listed in Section 11.1 shall be determined as soon as practicable in accordance with the procedures established by the Committee. 11.6 Requirement of Hardship. (a) Except as provided in (e) below, a withdrawal pursuant to Section 11.1(a)(5)(A), in addition to the other requirements of Article XI, shall be permitted only if the Committee determines that the withdrawal is to be made on account of an immediate and heavy financial need of the Participant, the amount of the withdrawal does not exceed such financial need, and the amount of the withdrawal is not reasonably available from other resources of the Participant. (b) For purposes of this Section 11.6, the following shall be deemed to be immediate and heavy financial needs: (1) Medical expenses described in Section 213(d) of the Code, including but not limited to, expenses for (i) The diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body; (ii) transportation primarily for and essential to such expenses referred to in (i) above; or (iii) insurance (including amounts paid as premiums under part B of Title XVIII of the Social Security Act) relating to medical expenses referred to in (i) or (ii) above, provided such expenses are incurred by the Participant, the Participant's spouse or any person whom the Participant may properly claim as a dependent on his federal income tax return or are necessary for such persons to obtain the medical care described above; or (2) Purchase (excluding mortgage payments) of a principal residence for the Participant; or (3) Payment of tuition, related educational fees, and room and board expenses, for the next twelve (12) months of post-secondary education for the Participant, the Participant's spouse or child or children, or any person the Participant may properly claim as a dependent on his federal income tax return; or (4) The need to prevent eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal residence; or (5) Any other need which the Commissioner of the Internal Revenue Service, through the publication of revenue rulings, notices, or other documents of general applicability, deems to be immediate and heavy. (c) For purposes of this Section 11.6, a withdrawal shall be deemed necessary to satisfy an immediate and heavy financial need if: (1) The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant, including any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution; (2) The Participant has obtained all distributions and all nontaxable loans currently available to him under all plans maintained by an Affiliated Employer; (3) The Participant agrees to suspend all elective employer contributions and voluntary participant contributions to all plans of an Affiliated Employer for at least twelve (12) months after receipt of the distribution under this Section 11.6; and (4) The Participant agrees not to make elective contributions to this Plan or any other qualified or non-qualified deferred compensation plan sponsored by an Affiliated Employer (including stock purchase, stock option or similar plans) during the Participant's taxable year immediately following the taxable year of the hardship distribution in excess of the Participant's applicable elective deferral limits under Section 402(g) of the Code for such taxable year less the amount for the taxable year of the hardship distribution. (d) When all suspensions pursuant to this Section 11.6 are ended, Elective Employer Contributions and/or Voluntary Participant Contributions may be resumed by the Participant (if the Participant is then eligible and elects to resume such contributions) beginning with the Participant's first payroll period commencing after all suspensions are ended, and Employer Matching Contributions by his Employing Company also shall be resumed. There shall be no make up of any contributions by a Participant or by an Employing Company with respect to a period of suspension. (e) Notwithstanding (a) above, if a Participant has attained age 59 1/2 or separated from service with the Affiliated Employers (within the meaning of Code Section 401(k)(2)(B)(i)(I)), he shall be permitted to make a withdrawal pursuant to Section 11.1(a)(5)(A), even if such withdrawal is not on account of hardship. 11.7 Loans to Participants. (a) The Committee may, in its sole discretion, direct the Trustee to make a loan or loans from the Trust Fund to any Participant (other than a Participant with an existing Plan loan in arrears) (1) who is an Employee on the active payroll of an Employing Company or is a cooperative education employee, (2) who is receiving long-term disability payments under a plan maintained by his Employing Company, (3) who is on a leave of absence authorized by his Employing Company, or (4) who is a party in interest as defined in Section 3(14) of ERISA. All loan applications shall be made in accordance with the procedures established by the Committee, which shall form a part of this Plan. Such procedures shall establish the terms and conditions of loans under the Plan, including the events constituting default, and shall be consistent with the provisions of this Section 11.7. (b) The total amount of all loans outstanding to any one Participant under all qualified plans maintained by an Affiliated Employer shall not exceed the lesser of (1) $50,000, reduced by the excess of the highest outstanding balance of loans from all qualified plans maintained by an Affiliated Employer during the twelve-month period ending on the day before a loan is made, over the outstanding balance of any loans to the Participant from all qualified plans maintained by an Affiliated Employer on the date the loan is made, or (2) fifty percent (50%) of such Participant's Account as of the Valuation Date coinciding with or next following the date the loan application is made. The minimum amount of any loan shall not equal less than $1,000. (c) The Participant requesting a loan pursuant to this Section 11.7 shall designate the order of priority of Investment Fund(s) from which the principal amount of the loan shall be obtained. (d) The Committee shall adopt and follow uniform and nondiscriminatory procedures in making loans under this Plan to make certain that such loans (1) are available to all Participants on a reasonably equivalent basis, (2) are not made available to Highly Compensated Employees, officers, or shareholders in an amount greater than the amount made available to other Participants, (3) bear a reasonable rate of interest, and (4) are adequately secured. The repayment of such loans by any Participant who is an Employee on the active payroll of an Employing Company shall be made through payroll deduction. The minimum amount of any loan repayment shall not equal less than $20.00, and such repayment shall extend for a period certain of at least twelve (12) months (unless repaid in full), but not to exceed fifty-eight (58) months, expressed in any number of whole months (including the month the loan is made). The term of any loan may be for a period certain of more than fifty-eight (58) months, but not to exceed fifteen (15) years, only if the proceeds of such loan are used to acquire any dwelling used or, within a reasonable period of time, to be used as the principal residence of the Participant. (e) The Committee shall direct the Trustee to obtain from the Participant such note and adequate security as it may require. All loans made pursuant to this Section 11.7 shall be secured by the Participant's Account, and no other types of collateral may be used to secure a loan from the Plan. Notwithstanding the provisions of Section 17.2, if a Participant defaults on a loan under the Plan or if the Participant's employment terminates prior to full repayment thereof, in addition to any other remedy provided in the loan instruments or by law, the Committee may direct the Trustee to charge against that portion of the Participant's Account which secures the loan the amount required to fully repay the loan. Under no circumstances, however, shall any unpaid loan be charged against a Participant's Account until permitted by applicable law. This Section authorizes only the making of bona fide loans and not distributions, and before resort is made against a Participant's Account for his failure to repay any loan, such other reasonable efforts to collect the same shall be made by the Committee as it deems reasonable and practical under the circumstances. (f) No distribution shall be made to any Participant unless and until all unpaid loans to such Participant have either been paid in full or deducted from the Participant's Account. (g) All loans made under this Section 11.7 shall be considered earmarked investments of the Participant's Account, and any repayment of principal and interest shall be reinvested in accordance with the Participant's investment direction in effect on the date of such repayment pursuant to Article VIII of the Plan. 11.8 Special Waiver for Participants Employed in the United Kingdom. A Participant shall be entitled to sign a waiver of his right to make withdrawals or loans from his Account under the provisions of this Article XI with respect to the Elective Employer Contributions and Employer Matching Contributions credited to his Account to the extent necessary to ensure that such contributions are not taxable in the United Kingdom. The purpose of such waiver is to meet the requirements of the Department of Inland Treasury of the United Kingdom for excluding such Elective Employer and Employer Matching Contributions from taxable income in the United Kingdom. Such waiver shall be made on a form prescribed by the Committee from time to time in accordance with the requirements of the Department of Inland Treasury of the United Kingdom. ARTICLE XII DISTRIBUTION TO PARTICIPANTS 12.1 Distribution upon Retirement. (a) Subject to the provisions of Article XVIII, if a Participant's employment with the Affiliated Employers is terminated as a result of his retirement pursuant to the defined benefit pension plan of an Affiliated Employer, in addition to the withdrawal options under Section 11.1, the entire balance credited to his Account shall be payable to him in the manner set forth in this Section 12.1 at such time requested by the Participant pursuant to Section 12.6 and in accordance with the procedures established by the Committee. The distribution shall commence as soon as practicable after the Valuation Date selected by the Participant in one of the following ways: (1) In a single lump sum distribution; or (2) In annual installments not to exceed twenty (20), as selected by the Participant, or the Participant's life expectancy. The amount of cash and/or the number of shares of Common Stock in each installment shall be equal to the proportionate value as of each Valuation Date immediately preceding payment of the balance then to the credit of the Participant in his Account determined by dividing the amount credited to his Account as of such Valuation Date by the number of payments remaining to be made. If a Participant who is receiving installment payments shall establish to the satisfaction of the Committee, in accordance with principles and procedures established by the Committee which are applicable to all persons similarly situated, that a financial emergency exists in his affairs, such as illness or accident to the Participant or a member of his immediate family or other similar contingency, the Committee may, for the purpose of alleviating such emergency, accelerate the time of payment of some or all of the remaining installments. If a Participant dies before receiving all of the amount to the credit of his Account in accordance with this paragraph (2), the amount remaining to the credit of his Account at his death shall be distributed to his Beneficiary as soon as practicable in accordance with Section 12.4. (b) Notwithstanding a Participant's election to defer the receipt of the benefits under (a) above, the Committee shall direct payment in a single lump sum to such Participant if the balance of his Account does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with the requirements of Code Section 411(a)(11). The Committee shall not cash-out any Participant whose Account balance exceeds $3,500 ($5,000 effective January 1, 1998) without the written consent of the Participant. 12.2 Distribution upon Disability. If a Participant's employment with the Affiliated Employers is terminated prior to his Normal Retirement Date by reason of his total and permanent disability, as determined by the Social Security Administration and evidenced in a writing provided to the Committee, such disabled Participant, in addition to the withdrawal options under Section 11.1, shall be entitled to receive the entire value credited to his Account at such time as requested by the Participant or such legal representative pursuant to Section 12.6 and in accordance with the procedures established by the Committee. Any distribution pursuant to this Section 12.2 shall be made in a single lump sum as soon as practicable after the selected Valuation Date. Notwithstanding the foregoing, the Committee shall direct payment in a single lump sum to such Participant or his legal representative if the balance of such Participant's Account does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with the requirements of Code Section 411(a)(11). 12.3 Distribution upon Death. If a Participant's employment with the Affiliated Employers is terminated by reason of death, the entire balance credited to the Participant's Account shall be distributed as soon as practicable to the Participant's surviving Beneficiary or Beneficiaries in a lump sum. 12.4 Designation of Beneficiary in the Event of Death. A Participant may designate a Beneficiary or Beneficiaries (who may be designated contingently) to receive all or part of the amount credited to his Account in case of his death before his receipt of all of his benefits under the Plan, provided that the Beneficiary of a married Participant shall be the Participant's Surviving Spouse, unless such Surviving Spouse shall consent in a writing witnessed by a notary public, which writing acknowledges the effect of the Participant's designation of a Beneficiary other than such Surviving Spouse. However, if such Participant establishes to the satisfaction of the Committee that such written consent may not be obtained because the Surviving Spouse cannot be located or because of such other circumstances as the Secretary of the Treasury may by regulations prescribe, a designation by such Participant without the consent of the Surviving Spouse shall be valid. Any consent necessary under this Section 12.4 shall be valid and effective only with respect to the Surviving Spouse who signs the consent or, in the event of a deemed consent, only with respect to a designated Surviving Spouse. A designation of Beneficiary may be revoked by the Participant without the consent of any Beneficiary (or the Participant's Surviving Spouse) at any time before the commencement of the distribution of benefits. A Beneficiary designation or change or revocation of a Beneficiary designation shall be made in accordance with the procedures established by the Committee. If no designated Beneficiary shall be living at the death of the Participant and/or such Participant's Beneficiary designation is not valid and enforceable under applicable law or the procedures of the Committee, such Participant's Beneficiary or Beneficiaries shall be 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 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 and the Trustee with respect to the amount so paid. 12.5 Distribution upon Termination of Employment. (a) If a Participant's employment with the Affiliated Employers is terminated for any reason other than in accordance with Sections 12.1, 12.2, and 12.3, the balance to the credit of the Participant's Account shall be payable in a single lump sum. Such lump sum distribution shall be made as soon as practicable after the Participant's termination of employment, provided that one of the following conditions is met: (1) the Participant's Account Balance does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with Code Section 411(a)(11), or (2) in accordance with Section 12.10, the Participant elects to receive a distribution of his Account. (b) A Participant who does not receive a distribution under Section 12.5(a)(1) may elect to defer the commencement of the distribution of his Account following the termination of his employment until a later Valuation Date, provided that such distribution shall commence not later than the date required under Section 12.6 of the Plan. In addition to the withdrawal options under Section 11.1, any deferred distribution shall commence as soon as practicable after the Valuation Date selected by the Participant. 12.6 Commencement of Benefits. (a) Notwithstanding any other provision of the Plan, and except as further provided in Section 12.6(b) below, if the Participant does not elect to defer commencement of his benefit payments, the payment of his benefits shall begin at the Participant's election no later than the sixtieth (60th) day after the close of the Plan Year in which the latest of the following events occurs: (1) the Participant attains the earlier of age sixty-five (65) or his Normal Retirement Date, (2) the Participant's tenth (10th) anniversary of participation under the Plan, or (3) the Participant's separation from service with the Affiliated Employers. (b) In no event shall the distribution of amounts in a Participant's Account commence later than the April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70 1/2 or terminates employment with the Affiliated Employers, in accordance with regulations prescribed by the Secretary of the Treasury. The foregoing requirements in this Section 12.6(b) shall not be applied to restrict the implementation of any written designation given to the Committee by a Participant prior to January 1, 1984, with regard to the method of distribution of his Account, if such method was permissible under the Plan and Code prior to January 1, 1984. Notwithstanding the foregoing, the payment of benefits to a Participant who is a five percent (5%) owner of The Southern Company or an Affiliated Employer (as determined pursuant to Code Section 416) with respect to the Plan Year ending in the calendar year in which the Participant attains age 70 1/2 shall begin not later than April 1, of the calendar year following the calendar year in which the Participant attains age 70 1/2 regardless of the Participant's termination from employment. Any distribution made under this Plan shall be made in accordance with the minimum distribution requirements of Code Section 401(a)(9), including the incidental death benefits requirements under Code Section 401(a)(9)(G) and the Treasury Regulations thereunder. 12.7 Transfer between Employing Companies. A transfer by a Participant from one Employing Company to another Employing Company shall not affect his participation in the Plan. A transfer by a Participant from an Employing Company to an Affiliated Employer that is not an Employing Company shall not be deemed to be a termination of employment with an Employing Company. 12.8 Distributions to Alternate Payees. If the Participant's Account under the Plan shall become subject to any domestic relations order which (a) is a qualified domestic relations order satisfying the requirements of Section 414(p) of the Code and (b) requires the immediate distribution in a single lump sum of the entire portion of the Participant's Account required to be segregated for the benefit of an alternate payee, then the entire interest of such alternate payee shall be distributed in a single lump sum within ninety (90) days following the Employing Company's notification to the Participant and the alternate payee that the domestic relations order is qualified under Section 414(p) of the Code, or as soon as practicable thereafter. Such distribution to an alternate payee shall be made even if the Participant has not separated from the service of the Affiliated Employers. Any other distribution pursuant to a qualified domestic relations order shall not be made earlier than the Participant's termination of service, or his attainment of age fifty (50), if earlier, and shall not commence later than the date the Participant's (or his Beneficiary's) benefit payments otherwise commence. Such distribution to an alternate payee shall be made only in a manner permitted under Articles XI or XII of the Plan and only to the extent the Participant would be eligible for such distribution option. 12.9 Requirement for Direct Rollovers. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Article XII, a Distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. 12.10 Consent and Notice Requirements. If the value of the vested portion of a Participant's Account derived from Employing Company and Employee contributions exceeds $3,500 ($5,000 effective January 1, 1998) determined in accordance with the requirements of Code Section 411(a)(11), the Participant must consent to any distribution of such vested account balance prior to his Normal Retirement Date. The consent of the Participant shall be obtained within the ninety-day period ending on the first day of the first period for which an amount is payable as an annuity or in any other form under this Plan. The Committee shall notify the Participant of the right to defer any distribution until the Participant's Account balance is no longer immediately distributable. Such notification shall include a general description of the material features and an explanation of the relative values of the operational forms of benefit available under the Plan in a manner that would satisfy the notice requirements of Section 417(a)(3) of the Code; such notification shall be provided no less than 30 days and no more than 90 days prior to the annuity starting date. Distributions may commence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Treasury Regulations is given, provided that: (a) the Committee informs the Participant that the Participant has a right to a period of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution and a particular distribution option, and (b) the Participant, after receiving the notice, affirmatively elects a distribution. 12.11 Form of Payment. All distributions under this Article XII shall be made in the form of cash, provided that the person entitled to such distribution may demand that the portion of any distribution which is attributable to Common Stock be distributed in the form of Common Stock to the extent of the whole number of shares in the Participant's Account, with a cash adjustment for any fractional shares. 12.12 Partial Distribution upon Termination of Employment. If a Participant's employment with the Affiliated Employers is terminated and such Participant is deemed not to have separated from service within the meaning of Code Section 401(k)(2)(B)(i)(I), such Participant, in addition to the withdrawal options available under Article XI, shall be entitled to elect a lump sum distribution of the entire balance to the credit of his Account less the amount credited to his Elective Employer Contribution subaccount. The amounts credited to his Elective Employer Contribution subaccount may be distributed in a lump sum distribution at such time permitted pursuant to Code Section 401(k)(2)(B)(i) and Section 4.4(c) hereof. Such lump sum distributions shall otherwise be subject to this Article XII. ARTICLE XIII ADMINISTRATION OF THE PLAN 13.1 Membership of Committee. The Plan shall be administered by the Committee, which shall consist of the individuals then serving in the positions of Director, System Compensation and Benefits of The Southern Company; Vice-President, Human Resources of The Southern Company; and Comptroller of The Southern Company or any other position or positions that succeed to the duties of the foregoing positions. The Committee shall be chaired by the Vice-President, Human Resources of The Southern Company and may select a Secretary (who may, but need not, be a member of the Committee) to keep its records or to assist it in the discharge of its duties. 13.2 Acceptance and Resignation. Any person appointed to be a member of the Committee shall signify his acceptance in writing to the Chairman of the Committee. Any member of the Committee may resign by delivering his written resignation to the Committee and such resignation shall become effective upon delivery or upon any later date specified therein. 13.3 Transaction of Business. A majority of the members of the Committee at the time in office shall constitute a quorum for the transaction of business at any meeting. Any determination or action of the Committee may be made or taken by a majority of the members present at any meeting thereof or without a meeting by a resolution or written memorandum concurred in by a majority of the members then in office. 13.4 Responsibilities in General. The Committee shall administer the Plan and shall have the discretionary authority, power, and the duty to take all actions and to make all decisions necessary or proper to carry out the Plan and to control and manage the operation and administration of the Plan. The Committee shall have the discretion to interpret the Plan, including any ambiguities herein, and to determine the eligibility for benefits under the Plan in its sole discretion. The determination of the Committee as to any question involving the general administration and interpretation of the Plan shall be final, conclusive, and binding on all persons, except as otherwise provided herein or by law, and may be relied upon by the Company, all Employing Companies, the Trustee, the Participants, and their Beneficiaries. Any discretionary actions to be taken under the Plan by the Committee with respect to Employees and Participants or with respect to benefits shall be uniform in their nature and applicable to all persons similarly situated. 13.5 Committee as Named Fiduciary. For the purpose of compliance with the provisions of ERISA, the Committee shall be deemed the administrator of the Plan as the term "administrator" is defined in ERISA, and the Committee shall be, with respect to the Plan, a named fiduciary as that term is defined in ERISA. For the purpose of carrying out its duties, the Committee may, in its discretion, allocate its responsibilities under the Plan among its members and may, in its discretion, designate persons (in writing or otherwise) other than members of the Committee to carry out such responsibilities of the Committee under the Plan as it may see fit. 13.6 Rules for Plan Administration. The Committee may make and enforce rules and regulations for the administration of the Plan consistent with the provisions thereof and may prescribe the use of such forms or procedures as it shall deem appropriate for the administration of the Plan. 13.7 Employment of Agents. The Committee may employ independent qualified public accountants, as such term is defined in ERISA, who may be accountants to The Southern Company and any Affiliated Employer, legal counsel who may be counsel to The Southern Company and any Affiliated Employer, other specialists, and other persons as the Committee deems necessary or desirable in connection with the administration of the Plan. The Committee and any person to whom it may delegate any duty or power in connection with the administration of the Plan, the Company and the officers and directors thereof shall be entitled to rely conclusively upon and shall be fully protected in any action omitted, taken, or suffered by them in good faith in reliance upon any independent qualified public accountant, counsel, or other specialist, or other person selected by the Committee, or in reliance upon any tables, evaluations, certificates, opinions, or reports which shall be furnished by any of them or by the Trustee. 13.8 Co-Fiduciaries. It is intended that to the maximum extent permitted by ERISA, each person who is a fiduciary (as that term is defined in ERISA) with respect to the Plan shall be responsible for the proper exercise of his own powers, duties, responsibilities, and obligations under the Plan and the Trust, as shall each person designated by any fiduciary to carry out any fiduciary responsibilities with respect to the Plan or the Trust. No fiduciary or other person to whom fiduciary responsibilities are allocated shall be liable for any act or omission of any other fiduciary or of any other person delegated to carry out any fiduciary or other responsibility under the Plan or the Trust. 13.9 General Records. The Committee shall maintain or cause to be maintained an Account (and any separate subaccount) which accurately reflects the interest of each Participant, as provided for in Section 9.1, and shall maintain or cause to be maintained all necessary books of account and records with respect to the administration of the Plan. The Committee shall mail or cause to be mailed to Participants reports to be furnished to Participants in accordance with the Plan or as may be required by ERISA. Any notices, reports, or statements to be given, furnished, made, or delivered to a Participant shall be deemed duly given, furnished, made, or delivered when addressed to the Participant and delivered to the Participant in person or mailed by ordinary mail to his address last communicated to the Committee (or its delegate) or of his Employing Company. 13.10 Liability of the Committee. In administering the Plan, except as may be prohibited by ERISA, neither the Committee nor any person to whom it may delegate any duty or power in connection with administering the Plan shall be liable for any action or failure to act except for its or his own gross negligence or willful misconduct; nor for the payment of any amount under the Plan; nor for any mistake of judgment made by him or on his behalf as a member of the Committee; nor for any action, failure to act, or loss unless resulting from his own gross negligence or willful misconduct; nor for the neglect, omission, or wrongdoing of any other member of the Committee. No member of the Committee shall be personally liable under any contract, agreement, bond, or other instrument made or executed by him or on his behalf as a member of the Committee. 13.11 Reimbursement of Expenses and Compensation of Committee. Members of the Committee shall be reimbursed by the Company for expenses they may individually or collectively incur in the performance of their duties. Each member of the Committee who is a full-time employee of the Company or of any Employing Company shall serve without compensation for his services as such member; each other member of the Committee shall receive such compensation, if any, for his services as the Board of Directors may fix from time to time. 13.12 Expenses of Plan and Trust Fund. The expenses of establishment and administration of the Plan and the Trust Fund, including all fees of the Trustee, auditors, and counsel, shall be paid by the Company or the Employing Companies. Notwithstanding the foregoing, to the extent provided in the Trust Agreement, certain administrative expenses may be paid from the Trust Fund either directly or through reimbursement of the Company or the Employing Companies. Any expenses directly related to the investments of the Trust Fund, such as stock transfer taxes, brokerage commissions, or other charges incurred in the acquisition or disposition of such investments, shall be paid from the Trust Fund (or from the particular Investment Fund to which such fees or expenses relate) and shall be deemed to be part of the cost of such securities or deducted in computing the proceeds therefrom, as the case may be. Investment management fees for the Investment Funds shall be paid from the particular Investment Fund to which they relate either directly or through reimbursement of the Company or the Employing Companies unless the Company or the Employing Companies do not elect to receive reimbursement for payment of such expenses. Taxes, if any, on any assets held or income received by the Trustee and transfer taxes on the transfer of Common Stock from the Trustee to a Participant or his Beneficiary shall be charged appropriately against the Accounts of Participants as the Committee shall determine. Any expenses paid by the Company pursuant to Section 13.11 and this section shall be subject to reimbursement by other Employing Companies of their proportionate shares of such expenses as determined by the Committee. 13.13 Responsibility for Funding Policy. The Pension Fund Investment Review Committee of The Southern Company System shall have responsibility for providing a procedure for establishing and carrying out a funding policy and method for the Plan consistent with the objectives of the Plan and the requirements of Title I of ERISA. 13.14 Management of Assets. The Committee shall not have responsibility with respect to the control or management of the assets of the Plan. The Trustee shall have the sole responsibility for the administration of the assets of the Plan as provided in the Trust Agreement, except to the extent that an investment advisor (who qualifies as an Investment Manager as that term is defined in ERISA) who may be appointed by the Board of Directors (upon recommendation by the Pension Fund Investment Review Committee on and after August 5, 1993) shall have responsibility for the management of the assets of the Plan, or some part thereof (including the powers to acquire and dispose of the assets of the Plan, or some part thereof). 13.15 Notice and Claims Procedures. Consistent with the requirements of ERISA and the regulations thereunder of the Secretary of Labor from time to time in effect, the Committee shall: (a) provide adequate notice in writing to any Participant or Beneficiary whose claim for benefits under the Plan has been denied, setting forth specific reasons for such denial, written in a manner calculated to be understood by such Participant or Beneficiary, and (b) afford a reasonable opportunity to any Participant or Beneficiary whose claim for benefits has been denied for a full and fair review of the decision denying the claim. 13.16 Bonding. Unless otherwise determined by the Board of Directors or required by law, no member of the Committee shall be required to give any bond or other security in any jurisdiction. 13.17 Multiple Fiduciary Capacities. Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan, and any fiduciary with respect to the Plan may serve as a fiduciary with respect to the Plan in addition to being an officer, employee, agent, or other representative of a party in interest, as that term is defined in ERISA. 13.18 Change in Administrative Procedures. Notwithstanding any provision in the Plan to the contrary, the Committee shall be authorized to take whatever actions it deems necessary or appropriate in its discretion to implement administrative procedures, including, but not limited to, suspending plan participation (to the extent permitted by applicable law,) and suspending changes in investment directions and fund transfers, even though otherwise permitted or required under the Plan. ARTICLE XIV TRUSTEE OF THE PLAN 14.1 Trustee. The Company has entered into a Trust Agreement with the Trustee to hold the funds necessary to provide the benefits set forth in the Plan. If the Board of Directors so determines, the Company may enter into a Trust Agreement or Trust Agreements with additional trustees. Any Trust Agreement may be amended by the Company from time to time in accordance with its terms. Any Trust Agreement shall provide, among other things, that all funds received by the Trustee thereunder will be held, administered, invested, and distributed by the Trustee, and that no part of the corpus or income of the Trust held by the Trustee shall be used for or diverted to purposes other than for the exclusive benefit of Participants or their Beneficiaries, except as otherwise provided in the Plan. Any Trust Agreement may also provide that the investment and reinvestment of the Trust Fund, or any part thereof may be carried out in accordance with directions given to the Trustee by any Investment Manager or Investment Managers (as that term is defined in ERISA) who may be appointed by the Board of Directors (upon recommendation by the Pension Fund Investment Review Committee). The Board of Directors may remove any Trustee or any successor Trustee, and any Trustee or any successor Trustee may resign. Upon removal or resignation of a Trustee, the Board of Directors shall appoint a successor Trustee. 14.2 Purchase of Common Stock. As soon as practicable after receipt of funds applicable to the purchase of Common Stock, the Trustee shall purchase Common Stock or cause Common Stock to be purchased. Such Common Stock may be purchased on the open market or by private purchase (including private purchases directly from The Southern Company); provided that (a) no private purchase may be made at any price greater than the last sale price or highest current independent bid price, whichever is higher, for Common Stock on the New York Stock Exchange, plus an amount equal to the commission payable in a stock exchange transaction; (b) if such private purchase shall be a purchase of Common Stock directly from The Southern Company, no commission shall be paid with respect thereto; and (c) the Trustee may purchase Common Stock directly from The Southern Company under The Southern Investment Plan, as from time to time amended, or under any other similar plan made available to holders of record of shares of Common Stock which may be in effect from time to time, at the purchase price provided for in such plan. The Trustee may hold in cash, and may temporarily invest funds applicable to the purchase of Common Stock in short-term United States obligations, other obligations guaranteed by the United States Government, commercial paper, or certificates of deposit, and if the Trustee so determines, may transfer such funds to money market funds utilized by the Trustee for qualified employee benefit trusts. 14.3 Voting of Common Stock. Before each annual or special meeting of shareholders of The Southern Company, there shall be sent to each Participant a copy of the proxy soliciting material for the meeting, together with a form requesting instructions to the Trustee on how to vote the shares of Common Stock credited to such Participant's Account as of the record date of the Common Stock. If a Participant does not provide the Trustee or its designated agent with timely voting instructions for the Trustee, the Pension Fund Investment Review Committee of The Southern Company System or its delegate may direct the Trustee how to vote such Participant's shares. If the Pension Fund Investment Review Committee of The Southern Company System or its delegate does not provide the Trustee or its designated agent with timely voting instructions, the Trustee, if required to do so by applicable law, may vote such Participant's shares. The Pension Fund Investment Review Committee of The Southern Company System or its delegate may direct the Trustee with respect to voting unallocated shares of Common Stock, if any. If the Pension Fund Investment Review Committee of The Southern Company System or its delegate does not provide the Trustee or its designated agent with timely voting instructions, the Trustee, if required to do so by applicable law, may vote such unallocated shares. 14.4 Voting of Other Investment Fund Shares. The Pension Fund Investment Review Committee or its delegate may direct the Trustee with respect to voting the shares in any Investment Fund other than the Company Stock Fund. To the extent an Investment Manager has been designated with respect to an Investment Fund, such Investment Manager (and not the Pension Fund Investment Review Committee) shall direct the Trustee with respect to voting the shares in such Investment Fund. If the Investment Manager does not direct the Trustee with respect to voting such shares, the Pension Fund Investment Review Committee may direct the Trustee with respect to voting such shares. If the Pension Fund Investment Review Committee does not provide the Trustee or its designated agent with timely voting instructions, the Trustee, if required to do so by applicable law, may vote such shares. 14.5 Uninvested Amounts. The Trustee may keep uninvested an amount of cash sufficient in its opinion to enable it to carry out the purposes of the Plan. 14.6 Independent Accounting. The Board of Directors shall select a firm of independent public accountants to examine and report annually on the financial position and the results of operation of the Trust forming a part of the Plan. ARTICLE XV AMENDMENT AND TERMINATION OF THE PLAN 15.1 Amendment of the Plan. The Plan may be amended or modified by the Board of Directors pursuant to its written resolutions at any time and from time to time; provided, however, that no such amendment or modification shall make it possible for any part of the corpus or income of the Trust Fund to be used for or diverted to purposes other than for the exclusive benefit of Participants or their Beneficiaries under the Plan, including such part as is required to pay taxes and administration expenses of the Plan. The Plan may also be amended or modified by the Committee (a) if such amendment or modification does not involve a substantial increase in cost to any Employing Company, or (b) as may be necessary, proper, or desirable in order to comply with laws or regulations enacted or promulgated by any federal or state governmental authority and to maintain the qualification of the Plan under Sections 401(a) and 501(a) of the Code and the applicable provisions of ERISA. No amendment to the Plan shall have the effect of decreasing a Participant's vested interest in his Account, determined without regard to such amendment, as of the later of the date such amendment is adopted or the date it becomes effective. In addition, if the vesting schedule of the Plan is amended, any Participant who has completed at least three (3) Years of Service and whose vested interest is at any time adversely affected by such amendment may elect to have his vested interest determined without regard to such amendment during the election period defined under Section 411(a)(10) of the Code. Finally, no amendment shall eliminate an optional form of benefit in violation of Code Section 411(d)(6). 15.2 Termination of the Plan. It is the intention of the Employing Companies to continue the Plan indefinitely. However, the Board of Directors pursuant to its written resolutions may at any time and for any reason suspend or terminate the Plan or suspend or discontinue the making of contributions of all Participants and of contributions by all Employing Companies. Any Employing Company may, by action of its board of directors and approval of the Board of Directors, suspend or terminate the making of contributions of Participants in the employ of such Employing Company and of contributions by such Employing Company. In the event of termination of the Plan or partial termination or upon complete discontinuance of contributions under the Plan by all Employing Companies or by any one Employing Company, the amount to the credit of the Account of each Participant whose Employing Company shall be affected by such termination or discontinuance shall be determined as of the next Valuation Date and shall be distributed to him or his Beneficiary thereafter at such time or times and in such nondiscriminatory manner as is determined by the Committee in compliance with the restrictions on distributions set forth in Code Section 401(k). 15.3 Merger or Consolidation of the Plan. The Plan shall not be merged or consolidated with nor shall any assets or liabilities thereof be transferred to any other plan unless each Participant of the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately prior to the merger, consolidation, or transfer (if the Plan had then terminated). ARTICLE XVI TOP-HEAVY REQUIREMENTS 16.1 Top-Heavy Plan Requirements. For any Plan Year the Plan shall be determined to be a top-heavy plan, the Plan shall provide the minimum allocation requirement of Section 16.3. 16.2 Determination of Top-Heavy Status. (a) For any Plan Year commencing after December 31, 1983, the Plan shall be determined to be a top-heavy plan, if, as of the Determination Date, the sum of the Aggregate Accounts of Key Employees under this Plan exceeds 60% of the Aggregate Accounts of all Employees entitled to participate in this Plan. (b) For any Plan Year commencing after December 31, 1983, the Plan shall be determined to be a super-top-heavy plan, if, as of the Determination Date, the sum of the Aggregate Accounts of Key Employees under this Plan exceeds 90% of the Aggregate Accounts of all Employees entitled to participate in this Plan. (c) In the case of a Required Aggregation Group, each plan in the group will be considered a top-heavy plan if the Required Aggregation Group is a Top-Heavy Group. No plan in the Required Aggregation Group will be considered a top-heavy plan if the Aggregation Group is not a Top-Heavy Group. In the case of a Permissive Aggregation Group, only a plan that is part of the Required Aggregation Group will be considered a top-heavy plan if the Permissive Aggregation Group is a Top-Heavy Group. A plan that is not part of the Required Aggregation Group but that has nonetheless been aggregated as part of the Permissive Aggregation Group will not be considered a top-heavy plan even if the Permissive Aggregation Group is a Top-Heavy Group. (d) For purposes of this Article XVI, if any Employee is a non-Key Employee for any Plan Year, but such Employee was a Key Employee for any prior Plan Year, such Employee's Present Value of Accrued Retirement Income and/or Aggregate Account balance shall not be taken into account for purposes of determining whether this Plan is a top-heavy or super-top-heavy plan (or whether any Aggregation Group which includes this Plan is a Top-Heavy Group). In addition, for Plan Years beginning after December 31, 1984, if an Employee or former Employee has not performed any services for any Employing Company maintaining the Plan at any time during the five-year period ending on the Determination Date, the Aggregate Account and/or Present Value of Accrued Retirement Income shall be excluded in determining whether this Plan is a top-heavy or super-top-heavy plan. (e) Only those plans of the Affiliated Employers in which the Determination Dates fall within the same calendar year shall be aggregated in order to determine whether such plans are top-heavy plans. 16.3 Minimum Allocation for Top-Heavy Plan Years. (a) Notwithstanding anything herein to the contrary, for any top-heavy Plan Year, the Employing Company contribution allocated to the Account of each non-Key Employee shall be an amount not less than the lesser of: (1) 3% of such Participant's compensation for that Plan Year, or (2) a percentage of that Participant's compensation not to exceed the percentage at which contributions are made under the Plan for the Key Employee for whom such percentage is highest for that Plan Year. (b) For purposes of the minimum allocation of Section 16.3(a), the percentage allocated to the Account of any Key Employee shall be equal to the ratio of the Employing Company contributions allocated on behalf of such Key Employee divided by the compensation of such Key Employee for that Plan Year. (c) For any top-heavy Plan Year, the minimum allocations of Section 16.3(a) shall be allocated to the Accounts of all non-Key Employees who are Participants and who are employed by the Affiliated Employers on the last day of the Plan Year. (d) Notwithstanding the foregoing, in any Plan Year in which a non-Key Employee is a Participant in both this Plan and a defined benefit plan, and both such plans are top-heavy plans, the Affiliated Employers shall not be required to provide a non-Key Employee with both the full separate minimum defined benefit and the full separate defined contribution plan allocations. Therefore, if a non-Key Employee is participating in a defined benefit plan maintained by the Affiliated Employers and the minimum benefit under Code Section 416(c)(1) is provided the non-Key Employee under such defined benefit plan, the minimum allocation provided for above shall not be applicable, and no minimum allocation shall be made on behalf of the non-Key Employee. Alternatively, the Employing Company may satisfy the minimum allocation requirement of Code Section 416(c)(2) for the non-Key Employee by providing any combination of benefits and/or contributions that satisfy the safe harbor rules of Treasury Regulation Section 1.416-1(M-12). 16.4 Adjustments to Maximum Benefit Limits for Top-Heavy Plans. (a) In the case of an Employee who is a participant in a defined benefit plan and a defined contribution plan maintained by the Affiliated Employers, and such plans as a group are determined to be top heavy for any limitation year beginning after December 31, 1983, "1.0", shall be substituted for "1.25" in each place it appears in the denominators of the Defined Benefit Plan Fraction and Defined Contribution Plan Fraction, unless the extra minimum benefit is provided pursuant to Section 16.4(b) below. Super-top-heavy plans and plans in a Super-Top-Heavy Group shall be required at all times to substitute "1.0" for "1.25" in the denominator of each plan fraction. (b) If a Key Employee is a participant in both a defined benefit plan and a defined contribution plan that are both part of a Top-Heavy Group (but neither of such plans is a super-top-heavy plan), the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall remain unchanged, provided the Account of each non-Key Employee who is a Participant receives an extra allocation (in addition to the minimum allocation in Section 16.3(a)) equal to not less than 1% of such non-Key Employee's compensation. (c) For purposes of this Section 16.4, if the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall exceed 1.0 in any Plan Year for any Participant in this Plan, the Affiliated Employers shall eliminate any amounts in excess of the limits set forth in Section 6.1(b), pursuant to Section 6.3 of the Plan. ARTICLE XVII GENERAL PROVISIONS 17.1 Plan Not an Employment Contract. The Plan shall not be deemed to constitute a contract between an Affiliated Employer and any Employee, nor shall anything herein contained be deemed to give any Employee any right to be retained in the employ of an Employing Company or to interfere with the right of an Employing Company to discharge any Employee at any time and to treat him without regard to the effect which such treatment might have upon him as a Participant. 17.2 No Right of Assignment or Alienation. Except as may be otherwise permitted or required by law, no right or interest in the Plan of any Participant or Beneficiary and no distribution or payment under the Plan to any Participant or Beneficiary shall be subject in any manner to anticipation, alienation, sale, transfer (except by death), assignment (either at law or in equity), pledge, encumbrance, charge, attachment, garnishment, levy, execution, or other legal or equitable process, whether voluntary or involuntary, and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, attach, garnish, levy, or execute or enforce any other legal or equitable process against the same shall be void, nor shall any such right, interest, distribution, or payment be in any way liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person entitled to such right, interest, distribution, or payment. If any Participant or Beneficiary is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge any such right, interest, distribution, or payment, voluntarily or involuntarily, or if any action shall be taken which is in violation of the provisions of the immediately preceding sentence, the Committee may hold or apply or cause to be held or applied such right, interest, distribution, or payment or any part thereof to or for the benefit of such Participant or Beneficiary in such manner as is in accordance with applicable law. In addition, a Participant's benefits may be offset pursuant to a judgment, order, or decree issued (or settlement agreement entered into) on or after August 5, 1997, if and to the extent that such offset is permissible or required under Code Section 401(a)(13). Notwithstanding the above, the Committee and the Trustee shall comply with any domestic relations order (as defined in Section 414(p)(1)(B) of the Code) which is a qualified domestic relations order satisfying the requirements of Section 414(p) of the Code. The Committee shall establish procedures for (a) notifying Participants and alternate payees who have or may have an interest in benefits which are the subject of domestic relations orders, (b) determining whether such domestic relations orders are qualified domestic relations orders under Section 414(p) of the Code, and (c) distributing benefits which are subject to qualified domestic relations orders. 17.3 Payment to Minors and Others. If the Committee determines that any person entitled to a distribution or payment from the Trust Fund is an infant or incompetent or is unable to care for his affairs by reason of physical or mental disability, it may cause all distributions or payments thereafter becoming due to such person to be made to any other person for his benefit, without responsibility to follow the application of payments so made. Payments made pursuant to this provision shall completely discharge the Company, the Trustee, and the Committee with respect to the amounts so paid. No person shall have any rights under the Plan with respect to the Trust Fund, or against the Trustee or any Employing Company, except as specifically provided herein. 17.4 Source of Benefits. The Trust Fund established under the Plan shall be the sole source of the payments or distributions to be made in accordance with the Plan. No person shall have any rights under the Plan with respect to the Trust Fund, or against the Trustee or any Employing Company, except as specifically provided herein. 17.5 Unclaimed Benefits. If the Committee is unable, within five (5) years after any distribution becomes payable to a Participant or Beneficiary, to make or direct payment to the person entitled thereto because the identity or whereabouts of such person cannot be ascertained, notwithstanding the mailing of due notice to such person at his last known address as indicated by the records of either the Committee or his Employing Company, then such benefit or distribution will be disposed of as follows: (a) If the whereabouts of the Participant is unknown to the Committee, distribution will be made to the Participant's Beneficiary or Beneficiaries. Payment to such one or more persons shall completely discharge the Company, the Trustee, and the Committee with respect to the amounts so paid. (b) If none of the persons described in (a) above, can be located, then the benefit payable under the Plan shall be forfeited and shall be applied to reduce future Employer Matching Contributions. Notwithstanding the foregoing sentence, such benefit shall be reinstated if a claim is made by the Participant or Beneficiary for the forfeited benefit. 17.6 Governing Law. The provisions of the Plan and the Trust shall be construed, administered, and enforced in accordance with the laws of the State of Georgia, except to the extent such laws are preempted by the laws of the United States. ARTICLE XVIII SPECIAL REQUIREMENTS FOR ACCOUNT BALANCES ATTRIBUTABLE TO ACCRUED BENEFITS TRANSFERRED FROM THE SEPCO PLAN 18.1 SEPCO Transferred Accounts. Notwithstanding any other provisions of this Plan to the contrary, a Participant's SEPCO Transferred Account shall be subject to the requirements of this Article XVIII. 18.2 In-Service Withdrawals from SEPCO Transferred Accounts. Except as provided in this Section 18.2, a Participant shall be entitled to a distribution of his SEPCO Transferred Account at the same time he is entitled to a distribution of his Account under the applicable provisions of Article XII. (a) Age 59 1/2. A Participant who has attained age 59 1/2 shall have the right to withdraw all or a portion of his SEPCO Transferred Account in accordance with Section 11.6(e) provided that he shall have first withdrawn all other amounts available to him in accordance with the terms and order of priority set forth in Section 11.1. (b) Hardship. A Participant who meets the requirements for hardship set forth in Section 11.6 hereof shall be entitled to withdraw amounts determined necessary to relieve such hardship from his SEPCO Transferred Account, provided that he shall have first withdrawn all other amounts available to him in accordance with the terms and order of priority set forth in Section 11.1. 18.3 Loans from SEPCO Transferred Accounts. Subject to the provisions of Section 11.7, a Participant may request that a loan be made to him from his SEPCO Transferred Account, provided, however, that the Participant has first borrowed all other amounts available to him under the terms of the Plan. A Participant must obtain the consent of his or her spouse, if any, to use any portion of his SEPCO Transferred Account as security for a loan. Within the ninety-day period ending on the date on which a loan is made to a Participant who is married, the Participant shall obtain and deliver to the Committee the written consent of the Participant's spouse (1) to the loan, and (2) to the reduction of the Participant's Account if the Participant's Account is reduced because of nonpayment or other default with respect to the loan. No further spousal consent shall be required in the event the Participant's Account is subsequently reduced with respect to such loan, even if the Participant is then married to a different spouse. A new spousal consent shall be required for any subsequent loan to a Participant, if the Participant is then married. 18.4 Distribution of SEPCO Transferred Accounts. Notwithstanding any provisions of this Plan to the contrary, a Participant with a SEPCO Transferred Account shall be paid the vested benefits of the SEPCO Transferred Account upon retirement, death, total and permanent disability, or termination of employment as provided herein. (a) All benefits from a Participant's SEPCO Transferred Account shall be distributed in accordance with the distribution options available under Article XII, with applicable spousal consent as provided under the SEPCO Plan, unless a Participant elects payment of benefits in the form of a life annuity pursuant to a written election filed with the Committee prior to commencement of distribution of benefits. The provisions of this Section 18.4 shall take precedence over any conflicting provisions of the Plan and shall apply to any Participant who has a SEPCO Transferred Account and who elects to receive payment of his benefits from his SEPCO Transferred Account in the form of a life annuity. A married Participant electing to receive benefits in the form of a life annuity shall receive the value of his benefit in the form of a qualified joint and survivor annuity, which shall provide an annuity for the life of the Participant with a survivor annuity for the life of the Participant's spouse which is either 50% or 100%, as elected by the Participant, of the amount of the annuity which is payable during the joint lives of the Participant and the Participant's spouse, and which is the actuarial equivalent of a single life annuity for the life of the Participant. An unmarried Participant who elects a life annuity shall receive the value of his benefits from his SEPCO Transferred Account in the form of an annuity for his lifetime. (b) If the Participant's interest is to be distributed in other than a single sum, the amount required to be distributed for each calendar year, beginning with distributions for the first Distribution Calendar Year, must at least equal the quotient obtained by dividing the Participant's Benefit by the Applicable Life Expectancy. (c) The minimum distribution required for the Participant's first Distribution Calendar Year must be made on or before the Participant's Required Beginning Date. The minimum distribution for other calendar years, including the minimum distribution for the Distribution Calendar Year in which the Participant's Required Beginning Date occurs, must be made on or before December 31 of that Distribution Calendar Year. (d) If the Participant's benefit is distributed in the form of an annuity purchased from an insurance company, distributions thereunder shall be made in accordance with the requirements of Section 401(a)(9) of the Code and the proposed regulations thereunder. (e) Definitions. (1) "Applicable Life Expectancy" means the life expectancy calculated using the attained age of the Participant as of the Participant's birthday in the applicable calendar year reduced by one for each calendar year which has elapsed since the date life expectancy was first calculated. If life expectancy is being recalculated, the applicable life expectancy shall be the life expectancy as so recalculated. The applicable calendar year shall be the first Distribution Calendar Year, and if life expectancy is being recalculated such succeeding calendar year. (2) "Distribution Calendar Year" means a calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant's Required Beginning Date. (3) "Participant's Benefit" means the account balance as of the last valuation date in the calendar year immediately preceding the Distribution Calendar Year (valuation calendar year) increased by the amount of any contributions or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. If any portion of the minimum distribution for the first Distribution Calendar Year is made in the second Distribution Calendar Year on or before the Required Beginning Date, the amount of the minimum distribution made in the second Distribution Calendar Year shall be treated as if it had been made in the immediately preceding Distribution Calendar Year. (4) "Required Beginning Date" means April 1st of the calendar year following the calendar year in which the Participant attains age 70-1/2, in accordance with regulations prescribed by the Secretary of the Treasury. (f) Notwithstanding anything contained herein to the contrary, the requirements of this Section shall apply to any distribution of a Participant's interest and will take precedence over any inconsistent provisions of this Plan. All distributions required under this Section shall be determined and made in accordance with the proposed regulations under Section 401(a)(9), including the minimum distribution incidental benefit requirement of Section 1.401(a)(9)-2 of the proposed regulations. 18.5 Code Section 411(d)(6) Protected Benefits. Notwithstanding any of the foregoing, the provisions of this Article XVIII to effectuate the merger of the SEPCO Plan into this Plan shall not decrease a Participant's accrued benefit, except to the extent permitted under Section 412(c)(8) of the Code, and shall not reduce or eliminate Code Section 411(d)(6) protected benefits determined immediately prior to the date of such merger. The Committee shall disregard any part of this Article XVIII or the Plan to the extent that application of such would fail to satisfy this paragraph. If the Committee disregards any portion of this Article XVIII or the Plan because it would eliminate a protected benefit, the Committee shall maintain a schedule of any such impacted early retirement option or other optional forms of benefit and the Plan shall continue such for the affected Participants. IN WITNESS WHEREOF, the Company has caused this amendment and restatement of The Southern Company Employee Savings Plan effective as of January 1, 1997, to be executed this _______ day of __________________, 1998. SOUTHERN COMPANY SERVICES, INC. By: Its: Attest: By: _________________ Its: _________________ APPENDIX A - EMPLOYING COMPANIES The Employing Companies as of July 1, 1998 are: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. FIRST AMENDMENT TO THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore adopted the amendment and restatement of The Southern Company Employee Savings Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Board of Directors of Southern Company Services, Inc. has determined that the Plan should be an employee stock ownership plan, as defined in Section 4975(e)(7) of the Internal Revenue Code of 1986, as amended, and Section 407(d)(6) of the Employee Retirement Income Security Act of 1974, as amended; and WHEREAS, the Committee desires to amend the Plan consistent with such determination to cause the Plan to be an employee stock ownership plan and to allow Participants to receive a distribution of dividends payable on Common Stock under the Plan; and WHEREAS, the Committee also desires to amend the Plan to provide for the participation in the Plan by certain former employees of the Commonwealth Energy System who become employed by Southern Energy Resources, Inc.; and WHEREAS, the Committee is authorized pursuant to Section 15.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective as of January 1, 1999, Article I shall be amended by adding the following new sentence after the second sentence thereof: This Plan is also intended to be an employee stock ownership plan, as defined in Code Section 4975(e)(7) and ERISA Section 407(d)(6), and is designed to invest primarily in qualifying employer securities, as defined in Code Section 409(l). II. Effective as of the date hereof, Article III shall be amended by adding a new Section 3.7 thereto as follows and by redesignating existing Section 3.7 as Section 3.8: 3.7 Former Commonwealth Energy System Employees. Notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of the Commonwealth Energy System ("ComElectric") who is employed by Southern Energy Resources, Inc. and is set forth on a schedule of employees acknowledged by the Committee, such employee shall become a Participant as of the Enrollment Date coincident with or next following such employee's date of employment. III. Effective as of January 1, 1999, Section 8.1 of the Plan shall be amended by deleting the third sentence thereof and inserting a new sentence as follows: The Company Stock Fund shall be invested and, subject to Section 12.13 of the Plan, reinvested in Common Stock, provided that funds applicable to the purchase of Common Stock pending investment of such funds may be temporarily invested in short-term United States Government obligations, other obligations guaranteed by the United States Government, commercial paper, or certificates of deposit, and, if the Trustee so determines, may be transferred to money market funds utilized by the Trustee for qualified employee benefit trusts. IV. Effective as of January 1, 1999, Section 8.4 shall be amended by deleting such Section in its entirety and substituting a new Section 8.4 as follows: 8.4 Investment of Earnings. Except as provided in Section 12.13 of the Plan, interest, dividends, if any, and other distributions received by the Trustee with respect to an Investment Fund shall be invested in such Investment Fund. V. Effective as of January 1, 1999, Section 9.2 shall be amended by deleting the first sentence thereof and substituting a new sentence as follows: Except as provided in Section 12.13 of the Plan, a Participant's Account in respect of his interest in each Investment Fund shall be credited or charged, as the case may be, as of each Valuation Date with the dividends, income, gains, appreciation, losses, depreciation, forfeitures, expenses, and other transactions with respect to such Investment Fund for the Valuation Date as of which such credit or charge accrued. VI. Effective as of January 1, 1999, Article XII shall be amended by adding a new Section 12.13 to the end thereof as follows: 12.13 Distribution of Dividends Payable on Common Stock. Each Participant may elect to receive a cash distribution of all or a portion of the dividends payable on the shares of Common Stock credited to the Participant's Account as of the record date of the Common Stock. The Committee shall establish administrative procedures to enable Participants to make elections under this Section 12.13. The dividends payable on the shares of Common Stock credited to the Account of a Participant who does not elect to receive a cash distribution shall be invested in accordance with Section 8.4 of the Plan. Payment of cash distributions under this Section 12.13 shall be made as soon as administratively practicable after the payable date of the shares of Common Stock, but in no event later than 90 days after the end of the Plan Year which includes such payable date. A Participant's election to receive cash distributions of dividends payable on Common Stock shall be revoked automatically upon the Participant's death. VII. Effective as of January 1, 1999, Section 14.2 shall be amended by deleting the first two sentences thereof and substituting two new sentences as follows: As soon as practicable after receipt of funds applicable to the purchase of Common Stock, the Trustee shall purchase Common Stock or cause Common Stock to be purchased. Such Common Stock may be purchased on the open market or by private purchase (including private purchases directly from The Southern Company); provided that (a) no private purchase may be made at any price greater than the last sale price or highest current independent bid price, whichever is higher, for Common Stock on the New York Stock Exchange, plus an amount equal to the commission payable in a stock exchange transaction; (b) if such private purchase shall be a purchase of Common Stock directly from The Southern Company, no commission shall be paid with respect thereto unless such commission satisfies the requirements of Prohibited Transaction Class Exemption 75-1; and (c) the Trustee may purchase Common Stock directly from The Southern Company under The Southern Investment Plan, as from time to time amended, or under any other similar plan made available to holders of record of shares of Common Stock which may be in effect from time to time, at the purchase price provided for in such plan. Except as amended herein by this First Amendment, the Plan shall remain in full force and effect as amended and restated by the Company prior to the adoption of this First Amendment. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Employee Savings Plan Committee, has adopted this First Amendment to The Southern Company Employee Savings Plan this ____ day of _________________________, 1998 to be effective as stated herein. EMPLOYEE SAVINGS PLAN COMMITTEE: Christopher C. Womack Robert A. Bell W. Dean Hudson SECOND AMENDMENT TO THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore adopted the amendment and restatement of The Southern Company Employee Savings Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Committee desires to amend the Plan to modify the definition of Compensation for appliance salespersons to include certain nonproductive pay earnings types as may be determined from time to time by the Committee; and WHEREAS, the Committee is authorized pursuant to Section 15.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective for pay periods ending on and after January 8, 1999, Section 2.18 of the Plan shall be amended by adding the following to the end of the first paragraph thereof: Effective for pay periods ending on and after January 8, 1999, the term "Compensation" shall also include, for appliance salespersons, certain nonproductive pay earnings types as determined from time to time by the Committee and set forth on Appendix B to the Plan, which Appendix may be updated from time to time. II. Except as amended herein by this Second Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Employee Savings Plan Committee, has adopted this Second Amendment to The Southern Company Employee Savings Plan this ____ day of _________________________, 1999 to be effective as stated herein. EMPLOYEE SAVINGS PLAN COMMITTEE: Christopher C. Womack Robert A. Bell W. Dean Hudson APPENDIX B Nonproductive Pay Earnings Types Earnings Code Earnings Description 003 Salesperson - Hourly 092 Holiday Taken 093 Meetings 095 Meetings - Safety 096 Disability 100% 100 Disability Extended Approval 106 Leave - Death 108 Occupational Injury 111 Jury Duty 112 Training 113 Safety Training 115 Vacation 116 Vacation Special Circumstances 117 Vacation FMLA Employee 118 Vacation FMLA Family Care 119 Time Off With Pay 125 Holiday Banked - Taken 127 Vacation In Lieu Of Disability 442 DISABILITY FMLA EMPLOYEE THIRD AMENDMENT TO THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore adopted the amendment and restatement of The Southern Company Employee Savings Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Committee desires to amend the Plan to make certain design changes; and WHEREAS, the Committee is authorized pursuant to Section 15.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective as of January 1, 1996, Subsection (1) of Section 2.27 of the Plan shall be amended as follows: (1) an Employee who is treated as such solely by reason of the "leased employee" rules of Code Section 414(n) such that, pursuant to an agreement between an Employing Company and any other person, such individual has performed services for the Employing Company (or the Employing Company and related persons as described in Code Section 414(n)(6)) on a substantially full-time basis for a period of at least one year and such services were performed under the primary direction or control of the Employing Company; II. Effective as of January 1, 1999, Section 3.8 of the Plan shall be amended by adding the following sentence to the end of such Section: Loan repayments will be suspended under the Plan as permitted under Section 414(u)(4) of the Code. III. Effective as of January 1, 1996, Section 12.6(b) shall be amended by adding the following sentence to the end of the first paragraph in such Section: In addition, any Participant who attains age 70 1/2 on or after January 1, 1996, but prior to January 1, 1999, may elect to have payment of his benefits begin no later than April 1 of the calendar year following the calendar year during which the Participant attains age 70 1/2, regardless of the Participant's termination of employment. IV. Except as amended herein by this Third Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Employee Savings Plan Committee, has adopted this Third Amendment to The Southern Company Employee Savings Plan this ____ day of ___________________, 1999. EMPLOYEE SAVINGS PLAN COMMITTEE: Christopher C. Womack Robert A. Bell W. Dean Hudson EX-10.A.62 6 EXHIBIT 10(a)62 THE SOUTHERN COMPANY EMPLOYEE STOCK OWNERSHIP PLAN As Amended and Restated Effective January 1, 1997 TABLE OF CONTENTS PAGE ARTICLE I - PURPOSE OF THE PLAN..................................1 ARTICLE II - DEFINITIONS.........................................2 2.1 "Account"...............................................2 2.2 "Affiliated Employer"...................................2 2.3 "Aggregate Account".....................................2 2.4 "Aggregation Group".....................................3 2.5 "Annual Addition".......................................3 2.6 "Beneficiary"...........................................3 2.7 "Board of Directors"....................................3 2.8 "Break-in-Service Date".................................3 2.9 "Code"..................................................3 2.10 "Committee".............................................4 2.11 "Common Stock"..........................................4 2.12 "Company"...............................................4 2.13 "Compensation"..........................................4 2.14 "Defined Benefit Plan Fraction".........................4 2.15 "Defined Contribution Plan Fraction"....................4 2.16 "Determination Date"....................................5 2.17 "Determination Year"....................................5 2.18 "Distributee"...........................................5 2.19 "Direct Rollover".......................................5 2.20 "Eligible Employee".....................................5 2.21 "Eligible Retirement Plan"..............................6 2.22 "Eligible Rollover Distribution"........................6 2.23 "Employee"..............................................6 2.24 "Employing Company".....................................7 2.25 "Enrollment Date".......................................7 2.26 "ERISA".................................................7 2.27 "Highly Compensated Employee"...........................7 2.28 "Hour of Service".......................................7 2.29 "Key Employee"..........................................7 2.30 "Limitation Year".......................................7 2.31 "Look-Back Year"........................................7 2.32 "Non-Highly Compensated Employee".......................7 2.33 "Normal Retirement Date"................................7 2.34 "One-Year Break in Service".............................8 2.35 "Participant"...........................................8 2.36 "Permissive Aggregation Group"..........................8 2.37 "Plan"..................................................8 2.38 "Plan Year".............................................8 2.39 "Present Value of Accrued Retirement Income"............8 2.40 "Qualified Election Period".............................8 2.41 "Qualified Participant..................................8 2.42 "Required Aggregation Group"............................8 2.43 "SEPCO".................................................8 2.44 "SEPCO ESOP"............................................8 2.45 "Super-Top-Heavy Group".................................9 2.46 "Surviving Spouse"......................................9 2.47 "Top-Heavy Group".......................................9 2.48 "Trust or Trust Fund"...................................9 2.49 "Trust Agreement".......................................9 2.50 "Trustee"...............................................9 2.51 "Valuation Date"........................................9 2.52 "Year of Service".......................................9 ARTICLE III - PARTICIPATION.....................................12 3.1 Eligibility Requirements...............................12 3.2 Duration of Participation..............................12 3.3 Participation upon Reemployment........................12 3.4 No Restoration of Previously Distributed Benefits......12 3.5 Special Rule for Scott Paper Company Energy Complex Employees..............................................12 3.6 Former Commonwealth Edison of Indiana Employees........13 3.7 Military Leave.........................................13 ARTICLE IV - EMPLOYING COMPANY CONTRIBUTION.....................14 4.1 Amount of Contribution.................................14 4.2 Time of Payment........................................14 4.3 Purchases of Common Stock..............................14 4.4 Restrictions on Common Stock...........................14 4.5 Exclusive Benefit of Employees.........................14 ARTICLE V - PARTICIPANT CONTRIBUTION............................16 5.1 Participant Contributions Not Allowed..................16 ARTICLE VI - ACCOUNTS OF PARTICIPANTS...........................17 6.1 Separate Accounts......................................17 6.2 Allocation of Common Stock.............................17 6.3 Section 415 Limitations................................17 6.4 Correction of Contributions in Excess of Section 415 Limits.............................................18 6.5 Combination of Plans...................................19 6.6 Allocation of Dividends and other Distributions........19 6.7 Valuations.............................................20 6.8 Voting Company Stock...................................20 6.9 Correction of Prior Incorrect Allocations and Distributions..........................................20 ARTICLE VII - AUTHORIZED WITHDRAWALS............................22 7.1 In General.............................................22 7.2 Distributions in Lieu of Diversification of Investments Pursuant to Code Section 401(a)(28)(B).....22 7.3 In-Service Withdrawals.................................22 ARTICLE VIII - DISTRIBUTIONS TO PARTICIPANTS....................24 8.1 Vesting................................................24 8.2 Distribution upon Retirement...........................24 8.3 Distribution upon Death................................24 8.4 Designation of Beneficiary in the Event of Death.......24 8.5 Distribution upon Disability...........................25 8.6 Distribution upon Termination of Employment............25 8.7 Property Distributed/Method of Payment.................26 8.8 Commencement of Benefits...............................27 8.9 Distribution upon Death................................27 8.10 Adjustments for Deferred Accounts or Installment Payments...............................................28 8.11 Transfers between Employing Companies..................28 8.12 Distribution to Alternate Payees.......................28 8.13 Requirement for Direct Rollovers.......................28 8.14 Consent and Notice Requirements........................28 ARTICLE IX - ADMINSTRATION......................................30 9.1 Membership of Committee................................30 9.2 Acceptance and Resignation.............................30 9.3 Transaction of Business................................30 9.4 Responsibilities in General............................30 9.5 Committee as Named Fiduciary...........................30 9.6 Rules for Plan Administration..........................30 9.7 Employment of Agents...................................31 9.8 Co-Fiduciaries.........................................31 9.9 General Records........................................31 9.10 Liability of the Committee.............................31 9.11 Reimbursement of Expenses and Compensation of Committee31 9.12 Expenses of Plan and Trust Fund........................31 9.13 Responsibility for Funding Policy......................32 9.14 Code Section 411(d)(6) Protected Benefits..............32 9.15 Management of Assets...................................32 9.16 Notice and Claims Procedure............................32 9.17 Bonding................................................32 9.18 Multiple Fiduciary Capacities..........................33 ARTICLE X - THE TRUST FUND AND TRUSTEE..........................34 10.1 Trustee................................................34 10.2 Duties of the Trustee..................................34 10.3 Diversion..............................................34 ARTICLE XI - AMENDMENT AND TERMINATION..........................35 11.1 Amendment of the Plan..................................35 11.2 Termination of the Plan................................35 11.3 Merger or Consolidation of the Plan....................36 ARTICLE XII - TOP-HEAVY PROVISIONS..............................37 12.1 Top-Heavy Plan Requirements............................37 12.2 Determination of Top-Heavy Status......................37 12.3 Minimum Allocation for Top-Heavy Plan Years............38 12.4 Adjustments to Maximum Benefit Limits for Top-Heavy Plans..................................................38 ARTICLE XIII - GENERAL PROVISIONS...............................40 13.1 Plan Not an Employment Contract........................40 13.2 Non-Alienation or Assignment...........................40 13.3 Payments to Minors and Others..........................40 13.4 Source of Benefits.....................................40 13.5 Unclaimed Benefits.....................................41 13.6 Governing Law..........................................41 ARTICLE I PURPOSE OF THE PLAN The purpose of this Plan is to enable Participants to share in the future of The Southern Company, to provide Participants with an opportunity to accumulate capital for their future economic security, and to enable Participants to acquire stock ownership interests in The Southern Company. Consequently, Employing Company contributions to the Plan will be invested primarily in Common Stock of The Southern Company. The Plan is also designed to provide Participants with beneficial ownership of Common Stock of The Southern Company substantially in proportion to their relative Compensation without requiring any cash outlay, any reduction in pay or other benefits, or the surrender of any other rights on the part of Participants. The Plan was originally effective January 1, 1976, and was last amended and restated effective as of April 1, 1995. The Plan is hereby amended and restated effective January 1, 1997 in order to incorporate a variety of plan design and other changes. It is intended that this Plan, as amended and restated effective as of January 1, 1997, shall constitute an employee stock ownership plan under Section 4975(e)(7) of the Internal Revenue Code of 1986, as amended ("Code") and Section 407(d)(6) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The Plan is a stock bonus plan intended to be qualified under Section 401(a) of the Code. ARTICLE II DEFINITIONS All references to articles, sections, subsections, and paragraphs shall be to articles, sections, subsections, and paragraphs of this Plan unless another reference is expressly set forth in this Plan. Any words used in the masculine shall be read and be construed in the feminine where they would so apply. Words in the singular shall be read and construed in the plural, and all words in the plural shall be read and construed in the singular in all cases where they would so apply. For purposes of this Plan, unless otherwise required by the context, the following terms shall have the meanings set forth opposite such terms: 2.1......"Account" shall mean the separate account maintained for each Participant in accordance with Section 6.1. 2.2......"Affiliated Employer" shall mean each Employing Company and (a) any corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) which includes any Employing Company; (b) any trade or business (whether or not incorporated) which is under common control (as defined in Section 414(c) of the Code) with any Employing Company; (c) any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Section 414(m) of the Code) which includes any Employing Company; and (d) any other entity required to be aggregated with an Employing Company pursuant to regulations under Section 414(o) of the Code. Notwithstanding the foregoing, for purposes of applying the limitations of Section 6.3, the term Affiliated Employer shall be adjusted as required by Code Section 415(h). 2.3......"Aggregate Account" shall mean with respect to a Participant as of the Determination Date, the sum of the following: (a) the Account balance of such Participant as of the most recent valuation occurring within a twelve-month period ending on the Determination Date; (b) an adjustment for any contributions due as of the Determination Date; (c) any Plan distributions, including unrelated rollovers and plan-to-plan transfers (ones which are both initiated by the Employee and made from a plan maintained by one employer to a plan maintained by another employer), but not related rollovers or plan-to-plan transfers (ones either not initiated by the Employee or made to a plan maintained by the same employer), made within the Plan Year that includes the Determination Date or within the four preceding Plan Years, including distributions made prior to January 1, 1984, and distributions made under a terminated plan which if it had not been terminated would have been required to be included in an Aggregation Group; (d) any Employee contributions, whether voluntary or mandatory; (e) unrelated rollovers and plan-to-plan transfers to this Plan accepted prior to January 1, 1984; and (f) related rollovers and plan-to-plan transfers to this Plan. 2.4......"Aggregation Group" shall mean either a Required Aggregation Group or a Permissive Aggregation Group. 2.5......"Annual Addition" shall mean the amount allocated to a Participant's Account and accounts under all defined contribution plans maintained by the Affiliated Employers during a Limitation Year that constitutes (a) Affiliated Employer contributions, .........(b) voluntary participant contributions, (c) forfeitures, if any, allocated to a Participant's Account and accounts under all defined contribution plans maintained by the Affiliated Employers, and (d) amounts described in Sections 415(l)(1) and 419A(d)(2) of the Code. 2.6......"Beneficiary" shall mean any person(s) who, or estate(s), trust(s), or organization(s) which, in accordance with the provisions of Section 8.4, become entitled to receive benefits upon the death of a Participant. 2.7......"Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 2.8......"Break-in-Service Date" means the earlier of the following dates: (a) the date on which an Employee terminates employment, is discharged, retires, or dies; or (b) the last day of an approved leave of absence including any extension. In the case of an individual who is absent from work for maternity or paternity reasons, such individual shall not incur a Break-in-Service Date earlier than the expiration of the second anniversary of the first date of such absence; provided, however, that the twelve-consecutive-month period beginning on the first anniversary of the first date of such absence shall not constitute a Year of Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (a) by reason of the pregnancy of the Employee, (b) by reason of a birth of a child of the Employee, (c) by reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee, or (d) for purposes of caring for such child for a period beginning immediately following such birth or placement. 2.9......"Code" shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, and the rulings and regulations promulgated thereunder. In the event an amendment to the Code renumbers a section of the Code referred to in this Plan, any such reference automatically shall become a reference to such section as renumbered. 2.10....."Committee" shall mean the Committee appointed pursuant to Section 9.1 to serve as plan administrator. 2.11....."Common Stock" shall mean the common stock of The Southern Company, which stock is a qualifying employer security within the meaning of Code Section 409(l)(1) and which stock is a registration-type class of securities as defined in Code Section 409(e)(4). 2.12....."Company" shall mean Southern Company Services, Inc., and its successors. 2.13....."Compensation" shall mean the total amount of a Participant's salary or wages, amounts received as sick pay and for leaves of absence with pay, overtime pay, any shift, nuclear, or other pay differentials, substitution pay, and other amounts received for personal services actually rendered, amounts paid by any Employing Company to The Southern Company Employee Savings Plan as Elective Employer Contributions (as defined therein) pursuant to the Participant's exercise of his deferral option made in accordance with Section 401(k) of the Code, all awards under any incentive pay plans sponsored by the Employing Company including, but not limited to, The Southern Company Performance Pay Plan, The Southern Company Productivity Improvement Plan, and The Southern Company Executive Productivity Improvement Plan, includable as gross income, and amounts contributed by an Employing Company to the Southern Electric System Flexible Benefits Plan or The Southern Company Flexible Benefits Plan on behalf of the Participant pursuant to his salary reduction election under either such plan, and before deduction of taxes, social security, etc. The term "Compensation" shall not include amounts which are reimbursement to a Participant paid by any Employing Company, including but not limited to, reimbursement for such items as moving expenses and travel and entertainment expenses, and imputed income for automobile expenses, tax preparation expenses, and health and life insurance premiums paid by an Employing Company. The Compensation of each Participant taken into account for purposes of this Plan shall not exceed $160,000 (as adjusted pursuant to Code Section 401(a)(17)). 2.14....."Defined Benefit Plan Fraction" shall mean the following fraction: (numerator) Sum of the projected annual benefits of the Participant under all Affiliated Employer defined benefit plans (whether or not terminated) determined as of the close of the Plan Year. (denominator) The lesser of (a) the product of 1.25 multiplied by the dollar limitation in effect for the Plan Year under Code Sections 415(b)(1)(A) or 415(d), or (b) 1.4 multiplied by 100% of the Participant's average compensation for his highest three (3) consecutive Plan Years of participation as adjusted under Treasury Regulation Section 1.415-5. 2.15 "Defined Contribution Plan Fraction" shall mean the following fraction: (numerator) The sum of all Annual Additions to the account of the Participant as of the close of the Plan Year under all defined contribution plans maintained by the Affiliated Employers for the current and prior Limitation Years (whether or not terminated), including this Plan. (denominator) The sum of the lesser of the following amounts determined for such Plan Year and for each prior Plan Year in which the Participant has a Year of Service: (a) 1.25 multiplied by the dollar limitation in effect under Code Section 415(c)(1)(A) for the Plan Year (determined without regard to Code Section 415(c)(6)), or (b) 1.4 multiplied by the amount that may be taken into account under Code Section 415(c)(1)(B) with respect to a Participant for the Plan Year. 2.16 "Determination Date" shall mean with respect to a Plan Year, the last day of the preceding Plan Year. 2.17 "Determination Year" shall mean the Plan Year being tested. 2.18 "Distributee" shall include an Employee or former Employee. In addition, the Employee's or former Employee's surviving spouse and the Employee's or former Employee's spouse or former spouse who is an alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. 2.19 "Direct Rollover" shall mean a payment by the Plan to the Eligible Retirement Plan specified by the Distributee. 2.20 "Eligible Employee" shall mean an Employee who is employed by an Employing Company and (a) who was eligible to be included in the Plan on January 1, 1991, or (b) who is a regular full-time, regular part-time, or cooperative education employee other than: (1) an Employee who is treated as such solely by reason of the "leased employee" rules of Code Section 414(n); (2) any Employee who is represented by a collective bargaining agent unless the representatives of his bargaining unit and the Employing Company mutually agree to participation in the Plan subject to its terms by members of his bargaining unit; (3) an individual who is a cooperative education employee and who first performs an Hour of Service on or after January 1, 1995; and (4) an individual who is classified by the Employing Company as a temporary employee (who was not eligible to be included in the Plan on January 1, 1991) or an independent contractor, regardless of whether such classification is in error. Effective September 1, 1998, any individual classified by the Employing Company as a temporary employee shall be excluded from the Plan, regardless of any prior inclusion in the Plan and regardless of whether the "temporary employee" classification is determined to be in error. 2.21 "Eligible Retirement Plan" shall mean an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code that accepts the Distributee's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to a surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. 2.22 "Eligible Rollover Distribution" shall mean any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: (a) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee, the joint lives (or joint life expectancies) of the Distributee and the Distributee's Beneficiary, or for a specified period of 10 years or more; (b) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; and (c) the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). 2.23 "Employee" shall mean each individual who is employed by an Affiliated Employer under common law and each individual who is required to be treated as an employee pursuant to the "leased employee" rules of Code Section 414(n) other than a leased employee described in Code Section 414(n)(5). 2.24 "Employing Company" shall mean the Company and any affiliate or subsidiary 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 them. The Employing Companies are set forth on Appendix A to the Plan, as updated from time to time. No such entity shall be treated as an Employing Company prior to the date it adopts the Plan. 2.25 "Enrollment Date" shall mean the day on which the Eligible Employee meets the requirements for participation in this Plan under Article III. 2.26 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, or any successor statute, and the rulings and regulations promulgated thereunder. In the event an amendment to ERISA renumbers a section of ERISA referred to in this Plan, any such reference automatically shall become a reference to such section as renumbered. 2.27 "Highly Compensated Employee" shall mean (in accordance with and subject to Code Section 414(q) and any regulations, rulings, notices or procedures thereunder), with respect to any Plan Year: (1) any Employee who was a five percent (5%) owner of The Southern Company or an Affiliated Employer (as determined pursuant to Code Section 416)) during the Plan Year or the immediately preceding Plan Year, or (2) any Employee who earned more than $80,000 in the preceding Plan Year. The $80,000 amount shall be adjusted for inflation and for short Plan Years, pursuant to Code Section 414(q). The Employer may, at its election, limit Employees earning more than $80,000 to only those Employees who fall within the "top-paid group," as defined in Code Section 414(q) excluding those employees described in Code Section 414(q)(8) for such purpose. In determining whether an Employee is a Highly Compensated Employee, the Committee may make any elections authorized under applicable regulations, rulings, notices, or revenue procedures. 2.28 "Hour of Service" shall mean each hour for which an Employee is paid or entitled to payment for the performance of duties for an Affiliated Employer. 2.29 "Key Employee" shall mean any Employee or former Employee (and his Beneficiary) who is a key employee within the meaning of Code Section 416(i)(1). 2.30 "Limitation Year" shall mean the Plan Year. 2.31 "Look-Back Year" shall mean the Plan Year preceding the Determination Year. 2.32 "Non-Highly Compensated Employee" shall mean an Employee who is not a Highly Compensated Employee. 2.33 "Normal Retirement Date" shall mean the first day of the month following a Participant's sixty-fifth (65th) birthday. 2.34 "One-Year Break in Service" shall mean each twelve-consecutive-month period within the period commencing with an Employee's Break-in-Service Date and ending on the date the Employee is again credited with an Hour of Service. 2.35 "Participant" shall mean (a) an Eligible Employee who satisfied the eligibility requirements set forth in Section 3.1 of the Plan and whose participation in the Plan at the time of reference has not been terminated as provided in the Plan and (b) an Employee or former Employee who has ceased to be a Participant under (a) above, but for whom an Account is maintained under the Plan. 2.36 "Permissive Aggregation Group" shall mean a group of plans consisting of the Required Aggregation Group and, at the election of the Affiliated Employers, such other plan or plans not required to be included in the Required Aggregation Group, provided the resulting group, taken as a whole, would continue to satisfy the provisions of Code Section 401(a)(4) or 410. 2.37 "Plan" shall mean The Southern Company Employee Stock Ownership Plan, as described herein and as it may be amended from time to time. Prior to January 1, 1991, the Plan was named The Employee Stock Ownership Plan of The Southern Company System. 2.38 "Plan Year" shall mean the twelve-month period commencing January 1st and ending on the last day of December next following. 2.39 "Present Value of Accrued Retirement Income" shall mean an amount determined solely for the purpose of determining if the Plan or any other plan included in a Required Aggregation Group of which the Plan is a part is top heavy in accordance with Code Section 416. 2.40 "Qualified Election Period" shall mean the six-Plan-Year period beginning with the Plan Year in which the Participant first becomes a Qualified Participant. 2.41 "Qualified Participant" shall mean a Participant who has attained age 55 and who has completed at least 10 years of participation in the Plan, whether or not he remains an Employee. 2.42 "Required Aggregation Group" shall mean those plans that are required to be aggregated as determined under this Section 2.42. In determining a Required Aggregation Group hereunder, each plan of the Affiliated Employers in which a Key Employee is a participant and each other plan of the Affiliated Employers which enables any plan in which a Key Employee participates to meet requirements of Code Section 401(a)(4) or 410 will be required to be aggregated. 2.43 "SEPCO" shall mean Savannah Electric and Power Company. 2.44 "SEPCO ESOP" shall mean the Employee Stock Ownership Plan of Savannah Electric and Power Company. 2.45 "Super-Top-Heavy Group" shall mean an Aggregation Group that would be a Top-Heavy Group if 90% were substituted for 60% in Section 2.47. 2.46 "Surviving Spouse" shall mean the person to whom the Participant is married on the date of his death, if such spouse is then living, provided that the Participant and such spouse shall have been married throughout the one (1) year period ending on the date of the Participant's death. 2.47 "Top-Heavy Group" shall mean an Aggregation Group in which, as of the Determination Date, the sum of: (a) the Present Value of Accrued Retirement Income of Key Employees under all defined benefit plans included in that group, and (b) the Aggregate Accounts of Key Employees under all defined contribution plans included in the group, exceeds 60% of a similar sum determined for all employees. 2.48 "Trust or Trust Fund" shall mean the trust established pursuant to the Trust Agreement. 2.49 "Trust Agreement" shall mean the trust agreement between the Company and the Trustee, as described in Article X. 2.50 "Trustee" shall mean the person or corporation designated as trustee under the Trust Agreement, including any successor or successors. 2.51 "Valuation Date" shall mean each business day of the New York Stock Exchange. 2.52 "Year of Service" shall mean a twelve-month period of employment as an Employee, including any fractions thereof. Calculation of the twelve-month periods shall commence with the Employee's first day of employment, which is the date on which an Employee first performs an Hour of Service, and shall terminate on his Break-in-Service Date. Thereafter, if he has more than one period of employment as an Employee, his Years of Service for any subsequent period shall commence with the Employee's reemployment date, which is the first date following a Break-in-Service Date on which the Employee performs an Hour of Service, and shall terminate on his next Break-in-Service Date. An Employee who has a Break-in-Service Date and resumes employment with the Affiliated Employers within twelve months of his Break-in-Service Date shall receive a fractional Year of Service for the period of such cessation of employment. For purposes of determining an Employee's eligibility to participate, the following years of service shall also be treated as Years of Service: (a) In respect of an Employee of an Employing Company who transfers to an Employing Company from Southern Energy Resources, Inc. following its adoption of a defined contribution plan under Section 401(a) of the Code, his credited years of service under such plan as of his date of transfer. (b) In respect of an Employee of an Employing Company who transfers to an Employing Company from SEPCO on or before December 31, 1992, his credited years of service under the SEPCO ESOP for actual service while employed at SEPCO as of his date of transfer. Notwithstanding anything in this Section 2.52 to the contrary, an Employee shall not receive credit for more than one Year of Service with respect to any twelve-consecutive-month period. ARTICLE III PARTICIPATION 3.1 Eligibility Requirements. Each Eligible Employee shall become a Participant on the later of January 1, 1997 or the Enrollment Date next following the date on which the Eligible Employee completes a Year of Service. 3.2 Duration of Participation. Once an Eligible Employee becomes a Participant in the Plan, he shall remain an active Participant during each Plan Year in which he is an Eligible Employee as of the last day of such Plan Year; provided, however, that an Eligible Employee whose employment terminates during a Plan Year by reason of death, retirement pursuant to his Affiliated Employer's pension plan, or total and permanent disability, as determined by the Social Security Administration, shall not cease to be an active Participant until the first day of the Plan Year next following the date such termination of employment occurs. In addition, a Participant in the Plan shall remain an active Participant during periods of authorized leaves of absence granted by an Employing Company under rules uniformly applicable to all persons similarly situated, during periods of sickness, disability leave, jury or military duty, or vacation or holiday leave. If the Employee does not return to work within the period of his authorized leave of absence (not including sickness or disability leave) or within the period provided by law in respect of absence for military duty, he shall cease to be an active Participant in the Plan as of the first day next following the date his authorized leave of absence or military duty is terminated. 3.3 Participation upon Reemployment. If an Employee terminates his employment with an Affiliated Employer and is subsequently reemployed as an Eligible Employee, the following rules shall apply in determining his eligibility to participate: (a) If the reemployed Eligible Employee had not completed the Year of Service requirement of Section 3.1 prior to his termination of employment and is reemployed following a One-Year Break in Service, he shall not receive credit for fractional periods of service completed prior to the One-Year Break in Service until he has completed a Year of Service after his return. A reemployed Employee who had not completed the Year of Service requirement and who is reemployed within 12 months of his Break-in-Service Date shall receive service credit for the period in which he performed no services in accordance with Section 2.52. (b) If the reemployed Eligible Employee had fulfilled the eligibility requirements of Section 3.1 prior to his termination of employment and is reemployed as an Eligible Employee, whether before or after he incurs a One-Year Break in Service, he shall again become a Participant in the Plan as of the date of his reemployment. 3.4 No Restoration of Previously Distributed Benefits. A Participant who had terminated his employment with the Affiliated Employers and who has received a distribution of the amount credited to his Account pursuant to Section 8.6 shall not be entitled to restore the amount of such distribution to his Account if he is reemployed and again becomes a Participant in the Plan. 3.5 Special Rule for Scott Paper Company Energy Complex Employees. An Eligible Employee who was an employee of Scott Paper Company Energy Complex on December 16, 1994, and who became an Employee of an Employing Company effective December 17, 1994, shall be credited with a Year of Service as of December 31, 1994, and shall become a Participant on January 1, 1995. 3.6 Former Commonwealth Edison of Indiana Employees. Effective January 1, 1998, notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of Commonwealth Edison of Indiana ("ComEd") who was employed by Southern Energy Resources, Inc. on or before December 31, 1997 and is set forth on a schedule of employees acknowledged by the Committee shall be credited with a Year of Service as of December 31, 1997, and shall become a Participant on January 1, 1998. In addition, any former employee of ComEd who becomes employed by Southern Energy Resources, Inc. on or after January 1, 1998 but prior to April 1, 1998 (hereafter "Date of Employment") and is set forth on the schedule of employees acknowledged by the Committee shall be credited with a Year of Service as of the day immediately preceding such employee's Date of Employment and shall become a Participant on the Enrollment Date coincident with or next following such employee's Date of Employment. 3.7 Military Leave. Notwithstanding any provision of the Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Section 414(u) of the Code. ARTICLE IV EMPLOYING COMPANY CONTRIBUTION 4.1 Amount of Contribution. An Employing Company may contribute to the Plan, in respect of each Plan Year, cash or Common Stock in an amount (or under such formula) as the Company, in its sole and absolute discretion, shall determine. If Common Stock is contributed to the Plan, the number of shares contributed shall be determined by the market value of such Common Stock, as determined by the Company. 4.2 Time of Payment. The Employing Company shall transfer the amount of cash or Common Stock described in Section 4.1 to the Plan on any date or dates consistent with the law, which the Employing Company may select, provided that the contributions for a Plan Year shall be transferred not later than the time (including extensions) for filing the consolidated federal income tax return for such Plan Year. 4.3 Purchases of Common Stock. If a contribution to the Plan under Section 4.1 is made in cash, the Trustee shall use such contribution to purchase Common Stock; provided, however, that the Plan may retain a cash reserve in an amount which does not exceed the value of fractional shares and declared cash dividends allocable to those Participants entitled to receive an immediate distribution of their Accounts at the time of the contribution of the cash. If Common Stock is purchased from The Southern Company, the price paid therefor by the Trustee shall be the market value of such Common Stock, as determined by the Company. 4.4 Restrictions on Common Stock. No Common Stock held by the Plan may be used to satisfy a loan made to the Plan, nor may any Common Stock held by the Plan be used as collateral for a loan made to the Plan. 4.5 Exclusive Benefit of Employees. All contributions made pursuant to the Plan shall be held by the Trustee in accordance with the terms of the Trust Agreement for the exclusive benefit of those Employees, including former Employees, who are Participants under the Plan, and their Beneficiaries, and shall be applied to provide benefits under the Plan and to pay expenses of administration of the Plan and the Trust, to the extent that such expenses are not otherwise paid. At no time prior to the satisfaction of all liabilities with respect to such Employees and their Beneficiaries shall any part of the Trust Fund be used for, or diverted to, purposes other than for the exclusive benefit of such Employees and their Beneficiaries. However, notwithstanding the provisions of this Section 4.5: (a) If any contribution under the Plan is conditioned on initial qualification of the Plan under Section 401(a) of the Code and if the Plan does not so qualify, the Trustee shall, upon written request of the Employing Company, return to the Employing Company the amount of such contribution (increased by earnings attributable thereto and reduced by losses attributable thereto) within one calendar year after the date that qualification of the Plan is denied; provided that the application for the determination is made by the time prescribed by law for filing the Employing Company's return for the taxable year in which the Plan is adopted or such later date as the Secretary of the Treasury may prescribe. (b) If a contribution is conditioned upon the deductibility of the contribution under Section 404 of the Code, then to the extent the deduction is disallowed the Trustee shall, upon written request of the Employing Company, return the contribution (to the extent disallowed) to the Employing Company within one year after the date the deduction is disallowed. (c) If a contribution or any portion thereof is made by the Employing Company by a mistake of fact, the Trustee shall, upon written request of the Employing Company, return the contribution or such portion to the Employing Company within one year after the date of payment to the Trustee. The amount which may be returned to the Employing Company under this Section 4.5, is the excess of (a) the amount contributed over (b) the amount that would have been contributed had there not occurred a mistake of fact or disallowance of the deduction. Earnings attributable to the excess contribution shall not be returned to the Employing Company, but losses attributable thereto shall reduce the amount to be so returned. If the withdrawal of the amount attributable to the mistaken contribution would cause the balance of the Account of any Participant to be reduced to less than the balance which would have been in the Account had the mistaken amount not been contributed, then the amount to be returned to the Employing Company shall be limited so as to avoid such reduction. ARTICLE V PARTICIPANT CONTRIBUTION 5.1 Participant Contributions Not Allowed. Participant contributions are neither required nor permitted under the Plan. Notwithstanding the foregoing, to the extent that Participant contributions were permitted under the terms of the Plan in effect prior to January 1, 1983, such contributions and/or pledges of contributions attributable to Plan Years beginning before January 1, 1983, may be made in accordance with the applicable provisions of the terms of the Plan as in effect prior to January 1, 1983. ARTICLE VI ACCOUNTS OF PARTICIPANTS 6.1 Separate Accounts. The Committee shall establish and maintain a separate Account for each Participant, with separate subaccounts as the Committee shall direct in its sole discretion. The subaccounts maintained in accordance with this Section 6.1 shall be for bookkeeping purposes only. Subaccounts, to the extent they were created under the Plan prior to January 1, 1983, shall be maintained, if necessary. The Committee shall also establish separate subaccounts for each Participant, as the Committee shall direct, as is necessary to reflect a Participant's interest in the Plan resulting from the transfer of his accounts from the SEPCO ESOP due to the merger of such plan into this Plan effective as of January 1, 1993. Any such subaccounts so established shall be subject to the terms and conditions of this Plan. 6.2 Allocation of Common Stock. All shares of Common Stock contributed or purchased with cash contributions for such Plan Year and all fractional rights to such shares shall be allocated as of the close of such Plan Year by the Committee to the Account of each Participant who was a Participant or deemed to be a Participant pursuant to Section 3.2 on the last day of such Plan Year. Such allocation shall be made in accordance with the ratio to which each eligible Participant's Compensation for such Plan Year bears to the total Compensation of all Participants eligible to share in the contribution for such Plan Year. 6.3 Section 415 Limitations (a) Notwithstanding any provision of the Plan to the contrary, the total Annual Additions allocated to the Account (and the accounts under all defined contribution plans maintained by an Affiliated Employer) of any Participant for any Limitation Year in accordance with Code Section 415 and the regulations thereunder, which are incorporated herein by this reference, shall not exceed the lesser of the following amounts: (1) twenty-five percent (25%) of the Participant's compensation in the Limitation Year; or (2) $30,000 (as adjusted pursuant to Code Section 415(d)(1)(C)). (b) If a Participant is also a participant in any Affiliated Employer's defined benefit plan, then in addition to the limitations in (a) above, the sum of the Defined Benefit Plan Fraction and Defined Contribution Plan Fraction shall not exceed 1.0 for any Limitation Year. (c) For purposes of this Section 6.3, wherever the term "compensation" is used, such term shall mean compensation as defined in Code Section 414(c)(3) and any rulings or regulations thereunder. (d) The Annual Addition for any Plan Year beginning before January 1, 1987 shall not be recomputed to treat all employee contributions as an Annual Addition. (e) If the Plan satisfied the applicable requirements of Section 415 of the Code as in effect for all Plan Years beginning before January 1, 1987, an amount shall be subtracted from the numerator of the Defined Contribution Plan Fraction (not exceeding the numerator), as prescribed by the Secretary of the Treasury, so that the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction computed under Section 415(e)(1) of the Code (as revised by this Section 6.3) does not exceed 1.0 for the Plan Year. In addition, the Defined Contribution Plan Fraction for a Participant may be determined by taking into account the special transition rule of Code Section 415(e)(6). (f) If the Participant was a participant in one or more defined benefit plans maintained by the Affiliated Employers which were in existence on July 1, 1982, the denominator of the Defined Benefit Plan Fraction shall not be less than 1.25% of the sum of the annual benefits under such plans which the Participant had accrued as of the later of September 30, 1983 or the end of the last Limitation Year beginning before January 1, 1983. The preceding sentence applies only if the defined benefit plans individually, and in the aggregate satisfy the requirements of Code Section 415 as in effect at the end of the 1982 Limitation Year. 6.4 Correction of Contributions in Excess of Section 415 Limits. If the Annual Additions for a Participant exceed the limits of Section 6.3 as a result of the allocation of forfeitures, if any, a reasonable error in estimating a Participant's annual compensation for purposes of the Plan, a reasonable error in determining the amount of elective deferrals (within the meaning of Section 402(g)(3) of the Code) that may be made with respect to any individual, or under other limited facts and circumstances that the Commissioner of the Treasury finds justify the availability of the rules set forth in this Section 6.4, the excess amounts shall not be deemed Annual Additions if they are corrected by forfeiture of that portion, or all, of the Employing Company contributions that were allocated to the Participant's Account, as is necessary to ensure compliance with Section 6.3. Any amounts forfeited under this Section 6.4 shall be held in a suspense account and shall be applied, subject to Section 6.3, toward funding the Employing Company contributions for the next succeeding Plan Year. Such application shall be made prior to any Employing Company contributions that would constitute Annual Additions. No income or investment gains and losses shall be allocated to the suspense account provided for under this Section 6.4. If any amount remains in a suspense account provided for under this Section 6.4 upon termination of this Plan, such amount will revert to the Employing Companies notwithstanding any other provision of this Plan. 6.5 Combination of Plans. Notwithstanding any provisions contained herein to the contrary, in the event that a Participant participates in a defined contribution plan or defined benefit plan required to be aggregated with this Plan under Code Section 415(g) and the sum of the Defined Contribution Plan Fraction and Defined Benefit Plan Fraction with respect to a Participant exceeds the limitations contained in Section 6.3(b), corrective adjustments (a) for an Employee shall not be made under this Plan until the corrective adjustments have been made under such other defined benefit plan and defined contribution plan but (b) for a Participant whose distribution of benefit payments has commenced under such defined benefit plan, shall be made under this Plan and then, to the extent necessary, under The Southern Company Performance Sharing Plan ("PSP") and then, to the extent necessary, under such other defined benefit plan and then, to the extent necessary, under The Southern Company Employee Savings Plan ("ESP"). If an Employee participates in more than one defined contribution plan maintained by an Affiliated Employer and his Annual Additions exceed the limitations of Section 6.3(a), corrective adjustments shall first be made under the ESP and then, to the extent necessary, under the PSP and then, to the extent necessary, under this Plan. 6.6 Allocation of Dividends and other Distributions. (a) Any dividends or other distributions of cash on the Common Stock shall be allocated to a Participant's Account on the basis of Account balances. The amount of any cash dividends on Common Stock so allocated may be retained in the Participants' Accounts or paid to such Participants pursuant to (b) below. Any cash dividends retained in the Accounts of Participants and any other distributions of cash on the Common Stock so allocated shall be reinvested by the Trustee in Common Stock which shall be credited to each such Participant's Account. In reinvesting such dividends or other distributions of cash on the Common Stock, the Trustee may purchase Common Stock under The Southern Company's Dividend Reinvestment and Stock Purchase Plan, from The Southern Company, or on the open market. If a dividend or other distribution on the Common Stock allocated to a Participant's Account is of additional shares of Common Stock, the Trustee shall credit such shares to the Participant's Account. If a dividend or other distribution on the Common Stock allocated to a Participant's Account is of property other than cash or additional shares of Common Stock, the Trustee shall sell such property for an amount not less than its fair market value as determined by the Trustee and reinvest the proceeds of such sale in shares of Common Stock pursuant to this Section 6.6. All allocations under this subsection shall be made on the basis of the subaccounts created in accordance with Section 6.1. (b) Any cash dividends received by the Trustee on Common Stock allocated to the Accounts of Participants (or Beneficiaries) may be retained in the Participants' Accounts as provided in (a) above or may be paid to such Participants at the sole discretion of the Committee; provided that any current payment in cash must be made within two years of the date such dividends are received by the Trustee, or, if the Employing Company desires a tax deduction for the amount of such dividends pursuant to Code Section 404(k), such cash dividends shall be distributed in cash not later than 90 days after the close of the Plan Year in which such dividends were paid. (c) Notwithstanding (b) above, if during any Plan Year the Committee shall determine not to pay cash dividends received by the Trustee on Common Stock allocated to Accounts of Participants to such Participants, a Participant may elect to have such cash dividends (or other distributions) paid to him currently by the Trustee. Such an election shall be made in such time and manner as may be prescribed by the Committee and shall be effective only with respect to dividends which are payable by The Southern Company to the Trustee in the Plan Years which begin after the Plan Year in which the election is made. An election shall remain in full force until revoked by a Participant. Any revocation shall be made in accordance with procedures established by the Committee and shall become effective only with respect to dividends payable by The Southern Company to the Trustee in Plan Years which begin after the Plan Year in which the revocation is made. 6.7 Valuations. Each Participant shall be furnished a statement of his Account no less frequently than annually and upon any distribution, which statement shall reflect the balances of the subaccounts referred to in Section 6.1. Each Participant's Account shall be adjusted as of each Valuation Date to reflect any increase or decrease in the number of shares of Common Stock credited to his Account and to reflect the effect of income collected, realized and unrealized gains and losses, and expenses attributable thereto. 6.8 Voting Company Stock. Before each annual or special meeting of shareholders of The Southern Company, there shall be sent to each Participant a copy of the proxy soliciting material for the meeting, together with a form requesting instructions to the Trustee on how to vote the shares of Common Stock credited to such Participant's Account as of the record date of the Common Stock. Fractional shares shall be combined and voted by the Trustee to the extent possible to reflect the instructions of Participants credited with such shares. If a Participant does not provide the Trustee or its designated agent with timely voting instructions for the Trustee, the Pension Fund Investment Review Committee of The Southern Company System may direct the Trustee how to vote such Participant's shares. If the Pension Fund Investment Review Committee of The Southern Company System does not provide the Trustee or its designated agent with timely voting instructions, the Trustee, if required to do so by applicable law, may vote such Participant's shares. The Pension Fund Investment Review Committee of The Southern Company System may direct the Trustee with respect to voting unallocated shares of Common Stock, if any. If the Pension Fund Investment Review Committee of The Southern Company System does not provide the Trustee or its designated agent with timely voting instructions, the Trustee, if required to do so by applicable law, may vote such unallocated shares. 6.9 Correction of Prior Incorrect Allocations and Distributions. Notwithstanding any provisions contained herein to the contrary, in the event that, as of any Valuation Date, adjustments are required in any Participants' Accounts to correct any incorrect allocation of contributions or investment earnings or losses, or such other discrepancies in Account balances that may have occurred previously, the Employing Companies may make additional contributions to the Plan to be applied to correct such incorrect allocations or discrepancies. The additional contributions shall be allocated by the Committee to adjust such Participants' Accounts to the value which would have existed on said Valuation Date had there been no prior incorrect allocation or discrepancies. The Committee shall also be authorized to take such other actions as it deems necessary to correct prior incorrect allocations under the Plan or discrepancies in the Accounts of the Participants. ARTICLE VII AUTHORIZED WITHDRAWALS 7.1 In General. Except as provided in this Article VII, shares of Common Stock allocated to the Account of a Participant may be distributed to him only in the event he ceases to be an Employee, whether by reason of retirement, total and permanent disability, as determined by the Social Security Administration, death, or other termination of employment. Distributions upon termination of employment for any of the above reasons, shall be made in accordance with Article VIII. 7.2 Distributions in Lieu of Diversification of Investments Pursuant to Code Section 401(a)(28)(B). (a) Each Qualified Participant shall be permitted to elect within 90 days after the last day of each Plan Year during the Participant's Qualified Election Period to receive a cash distribution from the Plan not to exceed 25% of the value of the Participant's Account balance attributable to Common Stock which was acquired by the Plan after December 31, 1986. Within 90 days after the close of the last Plan Year in the Participant's Qualified Election Period, a Qualified Participant may elect to receive a cash distribution from the Plan not to exceed 50% of the value of such Account balance. (b) The Participant's election shall be made in accordance with the procedures established by the Committee and shall be effective no later than 180 days after the close of the Plan Year to which the election applies. The Plan shall distribute (notwithstanding Section 409(d) of the Code) the portion of the Participant's Account that is covered by the election within 90 days after the last day of the period during which the election can be made. This Section 7.2 shall apply notwithstanding any other provision of the Plan other than such provisions as may require the consent of the Participant to a distribution with a present value in excess of $3,500 ($5,000 effective January 1, 1998). If the Participant does not consent to a distribution with a present value in excess of $3,500 ($5,000 effective January 1, 1998) under this Section 7.2, such amount shall be retained in the Plan and the Plan shall be deemed to have satisfied the diversification requirements of Section 401(a)(28)(B) of the Code. 7.3 In-Service Withdrawals. Subject to the requirements of Section 8.14, a Participant who is employed by an Affiliated Employer may at any time elect to have distributed to him the cash value of a specific number of whole shares of Common Stock, provided such Common Stock shall have been credited to the Participant's Account for a period of at least 84 months. Such shares of Common Stock shall be distributed not prior to the first day of the 85th month following the month in which any full shares of Common Stock shall have been credited to his Account. The election shall be made in accordance with the procedures established by the Committee. Any such withdrawal shall be subject to the following requirements: (a) a withdrawal must be for a specific number of whole shares or the value of a specific number of whole shares of Common Stock; (b) the specific number of shares requested must equal at least the lesser of 20 shares or the total number of whole shares available for withdrawal from the Participant's Account; and (c) a withdrawal shall be made in the form of cash, provided that with respect to any distribution which is attributable to full shares of Common Stock, the Participant shall have the right to demand that such portion of the distribution be made in the form of Common Stock. ARTICLE VIII DISTRIBUTIONS TO PARTICIPANTS 8.1 Vesting. All amounts credited to the Account of a Participant under the Plan shall at all times be fully vested and nonforfeitable. 8.2 Distribution upon Retirement. (a) If a Participant retires pursuant to his Affiliated Employer's pension plan, the entire balance credited to his Account shall be payable to him in the manner and time for commencement of benefits requested by the Participant pursuant to Sections 8.7 and 8.8. (b) Notwithstanding a Participant's election to defer receipt of benefits under (a) above, the Committee shall direct payment in a lump sum to such Participant if the balance of his Account (attributable to Employing Company and Employee contributions) does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with the requirements of Code Section 411(a)(11). The Committee shall not cash-out any Participant whose benefits exceed $3,500 ($5,000 effective January 1, 1998) without the written consent of the Participant. 8.3 Distribution upon Death. If a Participant's employment with the Affiliated Employers is terminated by reason of death, the entire balance credited to the Participant's Account shall be distributed as soon as practicable to the Participant's Beneficiary or Beneficiaries in a lump sum pursuant to Section 8.9(b). 8.4 Designation of Beneficiary in the Event of Death. A Participant may designate a Beneficiary or Beneficiaries (who may be designated contingently) to receive all or part of the amount credited to his Account in case of his death before his receipt of all of his benefits under the Plan, provided that the Beneficiary of a married Participant shall be the Participant's Surviving Spouse, unless such Surviving Spouse shall consent in a writing witnessed by a notary public, which writing acknowledges the effect of the Participant's designation of a Beneficiary other than such Surviving Spouse. However, if such Participant establishes to the satisfaction of the Committee that such written consent may not be obtained because the Surviving Spouse cannot be located or because of such other circumstances as the Secretary of the Treasury may by regulations prescribe, a designation by such Participant without the consent of the Surviving Spouse shall be valid. Any consent necessary under this Section 8.4 shall be valid and effective only with respect to the Surviving Spouse who signs the consent or, in the event of a deemed consent, only with respect to a designated Surviving Spouse. A designation of Beneficiary may be revoked by the Participant without the consent of any Beneficiary (or the Participant's Surviving Spouse) at any time before the commencement of the distribution of benefits. A Beneficiary designation or change or revocation of a Beneficiary designation shall be made in accordance with the procedures established by the Committee. If no designated Beneficiary shall be living at the death of the Participant and/or such Participant's Beneficiary designation is not valid and enforceable under applicable law or the procedures of the Committee, such Participant's Beneficiary of Beneficiaries shall be 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 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 and the Trustee with respect to the amount so paid. 8.5 Distribution upon Disability. If a Participant's employment with the Affiliated Employers is terminated by reason of his total and permanent disability, as determined by the Social Security Administration, such disabled Participant shall be entitled to receive the full value of his Account immediately following the date the Social Security Administration determines the Participant is totally and permanently disabled, in a single lump sum payment. The Participant or his legal representative shall request the time for commencement of benefits pursuant to Section 8.8. Notwithstanding the foregoing, effective July 1, 1995, the Committee shall direct payment in a single lump sum to such Participant or his legal representative if the balance of the Participant's Account does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with the requirements of Code Section 411(a)(11). 8.6 Distribution upon Termination of Employment. (a) If a Participant's employment with the Affiliated Employers is terminated for any reason other than in accordance with Sections 8.2, 8.3, or 8.5, he shall become entitled to payment of the full value of his Account as hereinafter provided. (b) Upon termination of employment with the Affiliated Employers, the Participant may request a distribution in a single lump sum of the full value of his Account. Alternatively, such Participant may elect to defer receipt of the full value of his Account until a time not later than the time specified in Section 8.8 below. Any deferred distribution shall commence as soon as practicable after the Valuation Date selected by the Participant. (c) Notwithstanding a Participant's election to defer receipt of benefits under (b) above, the Committee shall direct payment in a lump sum to such Participant if the balance of his Account (attributable to Employing Company and Employee contributions) as of the last Valuation Date in the month in which such Participant terminates employment with the Affiliated Employers does not exceed $3,500 ($5,000 effective January 1, 1998) in accordance with Code Section 411(a)(11). The Committee shall not cash-out any Participant whose benefits exceed $3,500 ($5,000 effective January 1, 1998) without the written consent of the Participant. 8.7 Property Distributed/Method of Payment. (a) A Participant separating from service in accordance with Section 8.2 shall elect the manner in which the Common Stock credited to his Account is distributed and a time for commencement of the distribution as provided hereinafter. The election by the Participant shall be made in accordance with the procedures established by the Committee. The Participant shall select one of the following alternative forms of distribution of his Account: (1) A lump sum distribution; or (2) Annual installments for a period not to exceed five years or, in the case of a Participant whose Account exceeds $500,000, five years plus one additional year (but not more than five additional years) for each $100,000 or fraction thereof by which such Account exceeds $500,000. The dollar amounts contained in this paragraph (2) shall be adjusted by the Secretary of the Treasury pursuant to Section 409(o)(2) of the Code. (b) All lump sum distributions under the Plan shall be made in cash, provided that a Participant shall have the right to request that such distribution be made in full shares of Common Stock, except that fractional shares shall be converted to and paid in cash, and declared but unpaid cash dividends shall be paid in cash. If any additional shares of Common Stock are subsequently allocated to the Participant's Account, such shares shall be distributed to the Participant or his Beneficiary within 60 days following the date on which such additional allocation is made. (c) All installment distributions under this Section 8.7 shall be made in cash, unless the Participant shall request that such distribution be made in full shares of Common Stock and cash for any fractional shares and declared but unpaid cash dividends. If a Participant elects installment payments, any additional shares of Common Stock allocated to his Account shall be added to the undistributed balance of such Account and be distributed thereafter in the manner the Participant has elected. 8.8 Commencement of Benefits. (a) Unless the Participant elects to have payment begin at a later date, payment of benefits to the Participant shall begin at the Participant's election, in accordance with the procedures established by the Committee, not later than 60 days after the last day of the Plan Year in which the latest of the following occurs: (1) the Participant attains the earlier of age 65 or his Normal Retirement Date; (2) the Participant's 10th anniversary of participation under the Plan; or (3) the Participant's separation from service. (b) In no event shall the distribution of amounts in a Participant's Account commence later than the April 1 of the calendar year following the later of the calendar year in which the Participant attains age 70 1/2 or terminates employment with the Affiliated Employers, in accordance with regulations prescribed by the Secretary of the Treasury. The foregoing requirements in this Section 8.8(b) shall not be applied to restrict the implementation of any written designation given to the Committee by a Participant prior to January 1, 1984, with regard to the method of distribution of his Account, if such method was permissible under the Plan and Code prior to January 1, 1984. Notwithstanding the foregoing, the payment of benefits to a Participant who is a five percent (5%) owner of The Southern Company or an Affiliated Employer (as determined pursuant to Code Section 416) with respect to the Plan Year ending in the calendar year in which the Participant attains age 70 1/2 shall begin not later than April 1, of the calendar year following the calendar year in which the Participant attains age 70 1/2 regardless of the Participant's termination from employment. Any distribution made under this Plan shall be made in accordance with the minimum distribution requirements of Code Section 401(a)(9), including the incidental death benefits requirements under Code Section 401(a)(9)(G) and the Treasury Regulations thereunder. 8.9 Distribution upon Death. (a) If the Participant dies before his entire nonforfeitable interest has been distributed to him, the remaining portion of such interest shall be distributed in a single lump sum to his Beneficiary. (b) If the Participant dies before the distribution of his nonforfeitable interest has begun, the entire interest shall be distributed in a single lump sum to his Beneficiary within 60 days following the Company's receipt of notification of the death of such Participant. 8.10 Adjustments for Deferred Accounts or Installment Payments. If the distribution of benefits to a Participant will either be paid in installments or the Participant elects to postpone distribution of his benefits payable in a lump sum, the Participant's Account shall remain in the Trust Fund and shall continue to participate in the valuations as provided in Sections 6.6 and 6.7 until fully distributed. 8.11 Transfers between Employing Companies. A transfer by a Participant from one Employing Company to another Employing Company shall not affect his participation in the Plan. A transfer by a Participant from an Employing Company to an Affiliated Employer that is not an Employing Company shall not be deemed to be a termination of employment with an Employing Company. 8.12 Distribution to Alternate Payees. If the Participant's Account under the Plan shall become subject to any domestic relations order which (a) is a qualified domestic relations order satisfying the requirements of Section 414(p) of the Code and (b) requires the immediate distribution in a single lump sum of the entire portion of the Participant's Account required to be segregated for the benefit of an alternate payee, then the entire interest of such alternate payee shall be distributed in a single lump sum within 90 days following the Employing Company's notification to the Participant and the alternate payee that the domestic relations order is qualified under Section 414(p) of the Code, or as soon as practicable thereafter. Such distribution to an alternate payee shall be made even if the Participant has not separated from the service of the Affiliated Employers. Any other distribution pursuant to a qualified domestic relations order shall not be made earlier than the Participant's termination of service or his attainment of age 50, if earlier, and shall not commence later than the date the Participant's (or his Beneficiary's) benefit payments otherwise commence. Such distribution to an alternate payee shall be made only in a manner permitted under Section 8.7 of the Plan and only to the extent the Participant would be eligible for such distribution option. 8.13 Requirement for Direct Rollovers. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Article VIII, a Distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. 8.14.....Consent and Notice Requirements. If the value of the vested portion of a Participant's Account derived from Employing Company and Employee contributions exceeds $3,500 ($5,000 effective January 1, 1998) determined in accordance with the requirements of Code Section 411(a)(11), the Participant must consent to any distribution of such vested account balance prior to his Normal Retirement Date. The consent of the Participant shall be obtained within the ninety-day period ending on the first day of the first period for which an amount is payable as an annuity or in any other form under this Plan. The Committee shall notify the Participant of the right to defer any distribution until the Participant's Account balance is no longer immediately distributable. Such notification shall include a general description of the material features and an explanation of the relative values of the operational forms of benefit available under the Plan in a manner that would satisfy the notice requirements of Section 417(a)(3) of the Code; such notification shall be provided no less than 30 days and no more than 90 days prior to the annuity starting date. Distributions may commence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Treasury Regulations is given, provided that: (a) the Committee informs the Participant that the Participant has a right to a period of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution and a particular distribution option, and (b) the Participant, after receiving the notice, affirmatively elects a distribution. ARTICLE IX ADMINISTRATION 9.1......Membership of Committee. The Plan shall be administered by the Committee, which shall consist of the individuals then serving in the positions of Director, System Compensation and Benefits of The Southern Company; Vice-President, Human Resources of The Southern Company; and Comptroller of The Southern Company or any other position or positions that succeed to the duties of the foregoing positions. The Committee shall be chaired by the Vice-President, Human Resources of The Southern Company and may select a Secretary (who may, but need not, be a member of the Committee) to keep its records or to assist it in the discharge of its duties. 9.2......Acceptance and Resignation. Any person appointed to be a member of the Committee shall signify his acceptance in writing to the Chairman of the Committee. Any member of the Committee may resign by delivering his written resignation to the Committee and such resignation shall become effective upon delivery or upon any later date specified therein. 9.3......Transaction of Business. A majority of the members of the Committee at the time in office shall constitute a quorum for the transaction of business at any meeting. Any determination or action of the Committee may be made or taken by a majority of the members present at any meeting thereof or without a meeting by a resolution or written memorandum concurred in by a majority of the members then in office. 9.4......Responsibilities in General. The Committee shall administer the Plan and shall have the discretionary authority, power, and the duty to take all actions and to make all decisions necessary or proper to carry out the Plan and to control and manage the operation and administration of the Plan. The Committee shall have the discretion to interpret the Plan, including any ambiguities herein, and to determine the eligibility for benefits under the Plan. The determination of the Committee as to any question involving the general administration and interpretation of the Plan shall be final, conclusive, and binding on all persons, except as otherwise provided herein or by law, and may be relied upon by the Company, all Employing Companies, the Trustee, Participants, and their Beneficiaries. Any discretionary actions to be taken under the Plan by the Committee with respect to Employees and Participants and with respect to benefits shall be uniform in their nature and applicable to all persons similarly situated. 9.5......Committee as Named Fiduciary. For the purpose of compliance with the provisions of ERISA, the Committee shall be deemed the administrator of the Plan, as the term "administrator" is defined in ERISA, and the Committee shall be, with respect to the Plan, a named fiduciary as that term is defined in ERISA. For the purpose of carrying out its duties, the Committee may, in its discretion, allocate its responsibilities under the Plan among its members and may, in its discretion, designate (in writing or otherwise) persons other than members of the Committee to carry out such responsibilities of the Committee under the Plan as it may see fit. 9.6......Rules for Plan Administration. The Committee may make and enforce rules and regulations for the administration of the Plan consistent with the provisions thereof and may prescribe the use of such forms or procedures as it shall deem appropriate for the administration of the Plan. 9.7......Employment of Agents. The Committee may employ independent qualified public accountants, as such term is defined in ERISA, who may be accountants to The Southern Company and any Affiliated Employer, legal counsel who may be counsel to The Southern Company and any Affiliated Employer, other specialists, and other persons as the Committee deems necessary or desirable in connection with the administration of the Plan. The Committee and any person to whom it may delegate any duty or power in connection with the administration of the Plan, the Company and the officers and directors thereof shall be entitled to rely conclusively upon and shall be fully protected in any action omitted, taken, or suffered by them in good faith in reliance upon any independent qualified public accountant, counsel, or other specialist or other person selected by the Committee, or in reliance upon any tables, evaluations, certificates, opinions, or reports which shall be furnished by any of them or by the Trustee. 9.8......Co-Fiduciaries. It is intended that, to the maximum extent permitted by ERISA, each person who is a fiduciary (as that term is defined in ERISA) with respect to the Plan shall be responsible for the proper exercise of his own powers, duties, responsibilities, and obligations under the Plan and the Trust, as shall each person designated by any fiduciary to carry out any fiduciary responsibility with respect to the Plan or the Trust. No fiduciary or other person to whom fiduciary responsibilities are allocated shall be liable for any act or omission of any other fiduciary or of any other person delegated to carry out any fiduciary or other responsibility under the Plan or the Trust. 9.9......General Records. The Committee shall maintain or cause to be maintained separate Accounts (and any separate subaccounts) which accurately reflect the interests of the Participants as provided for in Section 6.1, and shall maintain or cause to be maintained all necessary books of account and records with respect to the administration of the Plan. The Committee shall mail or cause to be mailed to Participants reports to be furnished to Participants in accordance with the Plan or as may be required by ERISA. Any notices, reports, or statements to be given, furnished, made, or delivered to a Participant shall be deemed duly given, furnished, made, or delivered when addressed to the Participant and delivered to the Participant in person or mailed by ordinary mail to his address last communicated to the Committee (or its delegate) or of his Employing Company. 9.10.....Liability of the Committee. In administering the Plan, except as may be prohibited by ERISA, neither the Committee nor any person to whom it may delegate any duty or power in connection with administering the Plan shall be liable for any action or failure to act except for its or his own gross negligence or willful misconduct, nor for the payment of any amount under the Plan, nor for any mistake of judgment made by him or on his behalf as a member of the Committee; nor for any action, failure to act, or loss unless resulting from his own gross negligence or willful misconduct, nor for the neglect, omission, or wrongdoing of any other member of the Committee. No member of the Committee shall be personally liable under any contract, agreement, bond, or other instrument made or executed by him or on his behalf as a member of the Committee. 9.11.....Reimbursement of Expenses and Compensation of Committee. Members of the Committee shall be reimbursed by the Company for expenses they may individually or collectively incur in the performance of their duties. Each member of the Committee who is a full-time employee of the Company or of any Employing Company shall serve without compensation for his services as such member; each other member of the Committee shall receive such compensation, if any, for his services as the Board of Directors may fix from time to time. 9.12.....Expenses of Plan and Trust Fund. The expenses of establishment and administration of the Plan and the Trust Fund, including all fees of the Trustee, auditors and counsel, shall be paid by the Company or the Employing Companies. Notwithstanding the foregoing, to the extent provided in the Trust Agreement, certain administrative expenses may be paid from the Trust Fund either directly or through reimbursement of the Company or the Employing Companies. Any expenses directly related to the investments of the Trust Fund, such as stock transfer taxes, brokerage commissions, or other charges incurred in the acquisition or disposition of such investments, shall be paid from the Trust Fund and shall be deemed to be part of the cost of such securities or deducted in computing the proceeds therefrom, as the case may be. Taxes, if any, on any assets held or income received by the Trustee and transfer taxes on the transfer of Common Stock from the Trustee to a Participant or his Beneficiary shall be charged appropriately against the Accounts of Participants as the Committee shall determine. Any expenses paid by the Company pursuant to Section 9.11 and this section shall be subject to reimbursement by other Employing Companies of their proportionate shares of such expenses as determined by the Committee. 9.13.....Responsibility for Funding Policy. The Pension Fund Investment Review Committee of The Southern Company System shall have responsibility for providing a procedure for establishing and carrying out a funding policy and method for the Plan consistent with the objectives of the Plan and the requirements of Title I of ERISA. 9.14.....Code Section 411(d)(6) Protected Benefits. Notwithstanding anything to the contrary in this Plan, any provisions added to this Plan to effectuate the merger of the SEPCO ESOP into this Plan shall not be interpreted so as to decrease a Participant's accrued benefit except to the extent permitted under Section 412(c)(8) of the Code, and such provisions shall not reduce or eliminate Code Section 411(d)(6) protected benefits determined immediately prior to January 1, 1993. The Committee shall disregard such provision in the Plan to the extent that application of such would fail to satisfy this paragraph. If the Committee disregards any portion of the Plan because it would eliminate a protected benefit, the Committee shall maintain a schedule of any such impacted early retirement option or other optional forms of benefit and the Plan must continue such for the affected Participants. 9.15.....Management of Assets. The Committee shall not have responsibility with respect to the control or management of the assets of the Plan. The Trustee shall have the sole responsibility for the administration of the assets of the Plan as provided in the Trust Agreement. 9.16.....Notice and Claims Procedure. Consistent with the requirements of ERISA and the regulations thereunder of the Secretary of Labor from time to time in effect, the Committee shall: (a) provide adequate notice in writing to any Participant or Beneficiary whose claim for benefits under the Plan has been denied, setting forth specific reasons for such denial, written in a manner calculated to be understood by such Participant or Beneficiary, and (b) afford a reasonable opportunity to any Participant or Beneficiary whose claim for benefits has been denied for a full and fair review of the decision denying the claim. 9.17.....Bonding. Unless Otherwise determined by the Board of Directors or required by law, no member of the Committee shall be required to give any bond or other security in any jurisdiction. 9.18.....Multiple Fiduciary Capacities. Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan, and any fiduciary with respect to the Plan may serve as a fiduciary with respect to the Plan in addition to being an officer, employee, agent, or other representative of a party in interest, as that term is defined in ERISA. ARTICLE X THE TRUST FUND AND TRUSTEE 10.1.....Trustee. The Company has entered into a Trust Agreement with the Trustee to hold the funds necessary to provide the benefits set forth in the Plan. The Company may remove the Trustee or appoint a successor trustee at any time upon 60 days notice in writing to the Trustee and the Committee. Any Trust Agreement may be amended by the Company from time to time in accordance with its terms. Any Trust Agreement shall provide, among other things, for a Trust Fund. The Trust Fund shall be administered by the Trustee to receive contributions, to hold, invest, and reinvest all property and funds of the Trust Fund, and to distribute benefits to eligible Participants and Beneficiaries. 10.2.....Duties of the Trustee. The Trustee shall have sole responsibility for the investment and safekeeping of the assets of the Trust Fund and shall have no responsibility for the operation or administration of the Plan, except as expressly provided herein. 10.3.....Diversion. At no time shall any part of the corpus or income of the Trust Fund be used for or diverted to purposes other than for the exclusive benefit of Participants or their Beneficiaries; provided, however, that contributions may be returned to the Employing Company in accordance with the provisions of Section 4.5. ARTICLE XI AMENDMENT AND TERMINATION 11.1.....Amendment of the Plan. The Plan may be amended or modified by the Board of Directors pursuant to its written resolutions at any time and from time to time; provided, however, that no such amendment or modification shall make it possible for any part of the corpus or income of the Trust Fund to be used for or diverted to purposes other than for the exclusive benefit of Participants or their Beneficiaries under the Plan, including such part as is required to pay taxes and administration expenses of the Plan. The Plan may also be amended or modified by the Committee (a) if such amendment or modification does not involve a substantial increase in cost to any Employing Company, or (b) as may be necessary, proper, or desirable in order to comply with laws or regulations enacted or promulgated by any federal or state governmental authority and to maintain the qualification of the Plan under Sections 401(a) and 501(a) of the Code and the applicable provisions of ERISA. Notwithstanding the foregoing, the formula in Section 6.2 of this Plan under which shares of Common Stock are allocated to the Accounts of Plan Participants shall not be amended more frequently than once every six months. No amendment to the Plan shall have the effect of decreasing a Participant's vested interest in his Account, determined without regard to such amendment, as of the later of the date such amendment is adopted or the date it becomes effective. In addition, if the vesting schedule of the Plan is amended, any Participant who has completed at least three (3) Years of Service and whose vested interest is at any time adversely affected by such amendment may elect to have his vested interest determined without regard to such amendment during the election period defined under Section 411(a)(10) of the Code. Finally, no amendment shall eliminate an optional form of benefit in violation of Code Section 411(d)(6). 11.2.....Termination of the Plan. It is the intention of the Employing Companies to continue the Plan indefinitely. However, the Board of Directors pursuant to its written resolutions may at any time and for any reason suspend or terminate the Plan or suspend or discontinue the making of contributions to the Plan by all Employing Companies. Any Employing Company may, by action of its board of directors and approval by the Board of Directors suspend or terminate the making of contributions to the Plan by such Employing Company. In the event of termination of the Plan or partial termination or upon complete discontinuance of contributions under the Plan by all Employing Companies or by any one Employing Company, the amount to the credit of the Account of each Participant whose Employing Company shall be affected by such termination or discontinuance shall be determined as of the next Valuation Date and shall be distributed to him or his Beneficiary thereafter at such time or times and in such nondiscriminatory manner as is determined by the Committee. Notwithstanding the above, so long as a Participant continues to be an Employee, no distribution may be made of shares of Common Stock which have been allocated to the Participant's Account for a period of less than 84 months commencing after the month in which such allocation occurred, unless such distribution is pursuant to Section 7.2 of the Plan or on account of termination of the Plan after December 31, 1984. 11.3.....Merger or Consolidation of the Plan. The Plan shall not be merged or consolidated with nor shall any assets or liabilities thereof be transferred to any other plan unless each Participant of the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately prior to the merger, consolidation, or transfer (if the Plan had then terminated). ARTICLE XII TOP-HEAVY PROVISIONS 12.1.....Top-Heavy Plan Requirements. For any Plan Year the Plan shall be determined to be a top-heavy plan, the Plan shall provide the minimum allocation requirement of Section 12.3. 12.2.....Determination of Top-Heavy Status. (a) For any Plan Year commencing after December 31, 1983, the Plan shall be determined to be a top-heavy plan, if, as of the Determination Date, the sum of the Aggregate Accounts of Key Employees under this Plan exceeds 60% of the Aggregate Accounts of all Employees entitled to participate in this Plan. (b) For any Plan Year commencing after December 31, 1983, the Plan shall be determined to be a super-top-heavy plan, if, as of the Determination Date, the sum of the Aggregate Accounts of Key Employees under this Plan exceeds 90% of the Aggregate Accounts of all Employees entitled to participate in this Plan. (c) In the case of a Required Aggregation Group, each plan in the group will be considered a top-heavy plan if the Required Aggregation Group is a Top-Heavy Group. No plan in the Required Aggregation Group will be considered a top-heavy plan if the Aggregation Group is not a Top-Heavy Group. In the case of a Permissive Aggregation Group, only a plan that is part of the Required Aggregation Group will be considered a top-heavy plan if the Permissive Aggregation Group is a Top-Heavy Group. A plan that is not part of the Required Aggregation Group but that has nonetheless been aggregated as part of the Permissive Aggregation Group will not be considered a top-heavy plan even if the Permissive Aggregation Group is a Top-Heavy Group. (d) For purposes of this Article XII, if any Employee is a non-Key Employee for any Plan Year, but such Employee was a Key Employee for any prior Plan Year, such Employee's Present Value of Accrued Retirement Income and/or Aggregate Account balance shall not be taken into account for purposes of determining whether this Plan is a top-heavy or super-top-heavy plan (or whether any Aggregation Group which includes this Plan is a Top-Heavy Group). In addition, for Plan Years beginning after December 31, 1984, if an Employee or former Employee has not performed any services for any Employing Company maintaining the Plan at any time during the five-year period ending on the Determination Date, the Aggregate Account and/or Present Value of Accrued Retirement Income shall be excluded in determining whether this Plan is a top-heavy or super-top-heavy plan. (e) Only those plans of the Affiliated Employers in which the Determination Dates fall within the same calendar year shall be aggregated in order to determine whether such plans are top-heavy plans. 12.3.....Minimum Allocation for Top-Heavy Plan Years. (a) Notwithstanding anything herein to the contrary, for any top-heavy Plan Year, the Employing Company contribution allocated to the Account of each non-Key Employee shall be an amount not less than the lesser of: (1) 3% of such Participant's compensation for that Plan Year, or (2) a percentage of that Participant's compensation not to exceed the percentage at which contributions are made under the Plan for the Key Employee for whom such percentage is highest for that Plan Year. (b) For purposes of the minimum allocation of Section 12.3(a), the percentage allocated to the Account of any Key Employee shall be equal to the ratio of the Employing Company contributions allocated on behalf of such Key Employee divided by the compensation of such Key Employee for that Plan Year. (c) For any top-heavy Plan Year, the minimum allocations of Section 12.3(a) shall be allocated to the Accounts of all non-Key Employees who are Participants and who are employed by the Affiliated Employers on the last day of the Plan Year. (d) Notwithstanding the foregoing, in any Plan Year in which a non-Key Employee is a Participant in both this Plan and a defined benefit plan, and both such plans are top-heavy plans, the Affiliated Employers shall not be required to provide a non-Key Employee with both the full separate minimum defined benefit and the full separate defined contribution plan allocations. Therefore, if a non-Key Employee is participating in a defined benefit plan maintained by the Affiliated Employers and the minimum benefit under Code Section 416(c)(1) is provided the non-Key Employee under such defined benefit plan, the minimum allocation provided for above shall not be applicable, and no minimum allocation shall be made on behalf of the non-Key Employee. Alternatively, the Employing Company may satisfy the minimum allocation requirement of Code Section 416(c)(2) for the non-Key Employee by providing any combination of benefits and/or contributions that satisfy the safe harbor rules of Treasury Regulation Section 1.416-1(M-12). 12.4.....Adjustments to Maximum Benefit Limits for Top-Heavy Plans. (a) In the case of an Employee who is a participant in a defined benefit plan and a defined contribution plan maintained by the Affiliated Employers, and such plans as a group are determined to be top heavy for any limitation year beginning after December 31, 1983, "1.0", shall be substituted for "1.25" in each place it appears in the denominators of the Defined Benefit Plan Fraction and Defined Contribution Plan Fraction, unless the extra minimum benefit is provided pursuant to Section 12.4(b) below. Super-top-heavy plans and plans in a Super-Top-Heavy Group shall be required at all times to substitute "1.0" for "1.25" in the denominator of each plan fraction. (b) If a Key Employee is a participant in both a defined benefit plan and a defined contribution plan that are both part of a Top-Heavy Group (but neither of such plans is a super-top-heavy plan), the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall remain unchanged, provided the Account of each non-Key Employee who is a Participant receives an extra allocation (in addition to the minimum allocation in Section 12.3(a)) equal to not less than 1% of such non-Key Employee's compensation. (c) For purposes of this Section 12.4, if the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall exceed 1.0 in any Plan Year for any Participant in this Plan, the Affiliated Employers shall eliminate any amounts in excess of the limits set forth in Section 6.3(b), pursuant to Section 6.5 of the Plan. ARTICLE XIII GENERAL PROVISIONS 13.1.....Plan Not an Employment Contract. The Plan shall not be deemed to constitute a contract between an Affiliated Employer and any Employee, nor shall anything herein contained be deemed to give any Employee any right to be retained in the employ of an Employing Company, or to interfere with the right of an Employing Company to discharge any Employee at any time and to treat him without regard to the effect which such treatment might have upon him as a Participant. 13.2.....Non-Alienation or Assignment. Except as may be otherwise permitted or required by law, no right or interest in the Plan of any Participant or Beneficiary and no distribution or payment under the Plan to any Participant or Beneficiary of a deceased Participant shall be subject in any manner to anticipation, alienation, sale, transfer (except by death), assignment (either at law or in equity), pledge, encumbrance, charge, attachment, garnishment, levy, execution, or other legal or equitable process, whether voluntary or involuntary, and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, attach, garnish, levy, execute, or enforce any other legal or equitable process against the same shall be void, nor shall any such right, interest, distribution, or payment be in any way liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person entitled to such right, interest, distribution, or payment. If any Participant or Beneficiary is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge any such right, interest, distribution, or payment, voluntarily or involuntarily, or if any action shall be taken which is in violation of the provisions of the immediately preceding sentence, the Committee may hold or apply or cause to be held or applied such right, interest, distribution, or payment or any part thereof to or for the benefit of such Participant or Beneficiary in such manner as is in accordance with applicable law. In addition, a Participant's benefits may be offset pursuant to a judgment, order, or decree issued (or settlement agreement entered into) on or after August 5, 1997, if and to the extent that such offset is permissible or required under Code Section 401(a)(13). Notwithstanding the above, the Committee and the Trustee shall comply with any domestic relations order (as defined in Section 414(p)(1)(B) of the Code) which is a qualified domestic relations order satisfying the requirements of Section 414(p) of the Code. The Committee shall establish procedures for (a) notifying Participants and alternate payees who have or may have an interest in benefits which are the subject of domestic relations orders, (b) determining whether such domestic relations orders are qualified domestic relations orders under Section 414(p) of the Code, and (c) distributing benefits which are subject to qualified domestic relations orders. 13.3.....Payments to Minors and Others. If the Committee determines that any person entitled to a distribution or payment from the Trust Fund under the Plan is an infant or incompetent or is unable to care for his affairs by reason of physical or mental disability, it may cause all distributions or payments thereafter becoming due to such person to be made to any other person for his benefit, without responsibility to follow the application of payments so made. Payments made pursuant to this provision shall completely discharge the Company, the Trustee, and the Committee with respect to the amounts so paid. 13.4.....Source of Benefits. The Trust Fund established under the Plan shall be the sole source of the payments or distributions to be made in accordance with the Plan. No persons shall have any rights under the Plan with respect to the Trust Fund, or against the Trustee or any Employing Company, except as specifically provided herein. 13.5.....Unclaimed Benefits. If the Committee is unable, within five (5) years after any distribution becomes payable to a Participant or Beneficiary, to make or direct payment to the person entitled thereto because the identity or whereabouts of such person cannot be ascertained, notwithstanding the mailing of due notice to such person at his last known address as indicated by the records of either the Committee or his Employing Company, then such benefit or distribution will be disposed of as follows: (a) If the whereabouts of the Participant is unknown to the Committee, distribution will be made to the Participant's Beneficiary or Beneficiaries. Payment to such one or more persons shall completely discharge the Company, the Trustee, and the Committee with respect to the amounts so paid. (b) If none of the persons described in (a) above, can be located, then the benefit payable under the Plan shall be forfeited and shall be applied to reduce future Employing Company contributions. Notwithstanding the foregoing sentence, such benefit shall be reinstated if a claim is made by the Participant or Beneficiary for the forfeited benefit. 13.6.....Governing Law. The provisions of the Plan and the Trust shall be construed, administered, and enforced in accordance with the laws of the State of Georgia, except to the extent such laws are preempted by the laws of the United States. IN WITNESS WHEREOF, the Company has caused this amendment and restatement of the Plan to be executed this _____ day of _______________, 1998 to be effective as provided herein. SOUTHERN COMPANY SERVICES, INC.: By: ------------------------------------------------- Its: ------------------------------------------------ ATTEST: By: Its: THE SOUTHERN COMPANY EMPLOYEE STOCK OWNERSHIP PLAN APPENDIX A The Employing Companies as of July 1, 1998 are: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. FIRST AMENDMENT TO THE SOUTHERN COMPANY EMPLOYEE STOCK OWNERSHIP PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Employee Stock Ownership Plan ("Plan"), originally effective as of January 1, 1976 and has most recently amended and restated the Plan effective as of January 1, 1997; and WHEREAS, the Employee Stock Ownership Plan Committee ("Committee") desires to amend the Plan in order to make certain design and other changes; and WHEREAS, the Committee is authorized pursuant to Section 11.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows to be effective as provided herein: I. Effective as of the date hereof, Article III of the Plan shall be amended by adding a new Section 3.7 thereto as follows and by redesignating existing Section 3.7 as Section 3.8: 3.7 Former Commonwealth Energy System Employees. Notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of Commonwealth Energy System ("ComElectric") who is employed by Southern Energy Resources, Inc. and is set forth on a schedule of employees acknowledged by the Committee, such employee shall become a Participant as of the Enrollment Date coincident with or next following such employee's date of employment. II. Except as amended herein by this First Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc. through the duly authorized members of the Employee Stock Ownership Plan Committee has adopted this First Amendment to The Southern Company Employee Stock Ownership Plan this _____ day of ________________, 1998, to be effective as stated herein. EMPLOYEE STOCK OWNERSHIP PLAN COMMITTEE: ------------------------ Christopher C. Womack ------------------------ Robert A. Bell ------------------------ W. Dean Hudson SECOND AMENDMENT TO THE SOUTHERN COMPANY EMPLOYEE STOCK OWNERSHIP PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Employee Stock Ownership Plan ("Plan"), originally effective as of January 1, 1976 and as most recently amended and restated the Plan effective as of January 1, 1997; and WHEREAS, the Employee Stock Ownership Plan Committee ("Committee") desires to amend the Plan in order to make certain design and technical changes; and WHEREAS, the Committee is authorized pursuant to Section 11.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows to be effective as provided herein: I. Effective as of January 1, 1996, Subsection (1) of Section 2.20 of the Plan shall be amended as follows: (1) an Employee who is treated as such solely by reason of the "leased employee" rules of Code Section 414(n) such that, pursuant to an agreement between an Employing Company and any other person, such individual has performed services for the Employing Company (or the Employing Company and related persons as described in Code Section 414(n)(6)) on a substantially full-time basis for a period of at least one year and such services were performed under the primary direction or control of the Employing Company; II. Effective as of January 1, 1997, Section 8.8(b) of the Plan shall be amended by adding the following sentence to the end of such Section: In addition, any Participant who attains age 70 1/2 on or after January 1, 1996, but prior to January 1, 1999, may elect to have payment of his benefits begin no later than April 1 of the calendar year following the calendar year during which the Participant attains age 70 1/2, regardless of the Participant's termination of employment. III. Except as amended herein by this Second Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc. through the duly authorized members of the Employee Stock Ownership Plan Committee has adopted this Second Amendment to The Southern Company Employee Stock Ownership Plan this _____ day of ________________, 1999, to be effective as stated herein. EMPLOYEE STOCK OWNERSHIP PLAN COMMITTEE: ------------------------- Christopher C. Womack ------------------------- Robert A. Bell ------------------------- W. Dean Hudson EX-10.A.63 7 EXHIBIT 10(a)63 SOUTHERN COMPANY PERFORMANCE PAY PLAN AMENDED AND RESTATED Troutman Sanders LLP NationsBank Plaza, Suite 5200 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Effective January 1, 1998 SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Purposes The purposes of the Amended and Restated Performance Pay Plan are to focus the attention and efforts of employees on goals which have a direct and significant influence on individual, organizational and corporate performance; to improve the correlation between pay and performance for the achievement of individual, organizational and corporate goals; and to provide the potential for levels of compensation that will enhance the ability of the Operating Companies to attract, retain, and motivate employees. In order to achieve these objectives, the Performance Pay Plan is intended to pay additional compensation to eligible employees based upon individual, organizational and corporate performance. Such compensation shall be paid out of the general assets of Southern Company. No benefits under the Performance Pay Plan shall be deferred under this Plan or held in trust for the benefit of eligible employees. The Performance Pay Plan is not intended to be an employee benefit plan or any other plan subject to regulation by the Employee Retirement Income Security Act of 1974. The Performance Pay Plan was established effective January 1, 1989. It has subsequently been amended and restated effective January 1, 1991, January 1, 1993 and January 1, 1996. The Board of Directors of Southern Company Services, Inc. now desires to amend and restate the Performance Pay Plan to expand eligibility and modify the basis for funding and allocating Incentive Pay Awards and to provide for certain plan distributions in the event of a change in control of Southern Company or of an Operating Company. The effective date of this amendment and restatement (the "Restatement Effective Date") of the Performance Pay Plan shall be January 1, 1998. ARTICLE I Definitions For purposes of the Performance Pay Plan, the following terms shall have the following meanings, unless a different meaning is plainly required by the context: 1.1 "Annual Salary" shall mean base salary or wages paid to an Employee before deductions for taxes, social security, etc., including all amounts contributed on an Employee's behalf by an Operating Company to the Southern Electric System Flexible Benefits Plan or the Southern Company Flexible Benefits Plan, any amounts contributed on an Employee's behalf by any Operating Company to the Southern Company Employee Savings Plan as Elective Employer Contributions, as said term is defined in Section 4.1 therein, pursuant to an Employee's exercise of any deferral option made in accordance with Section 401(k) of the Internal Revenue Code, and amounts contributed on an Employee's behalf to the Southern Company Deferred Compensation Plan, but excluding all awards under the Southern Company Performance Pay Plan, the Southern Company Executive Productivity Improvement Plan and the Southern Company Productivity Improvement Plan, overtime pay, shift differential and substitution pay. Annual Salaries of Employees who commence service during a Performance Period and Annual Salaries of Employees who terminate their employment for one of the reasons set forth in Section 2.1(b)(1)-(5) shall be prorated based upon their date of commencement or termination of service with their Operating Company in accordance with Schedule I or Schedule II hereof, as appropriate. With respect to Covered Employees, "Annual Salary" shall be defined in the Covered Employee Plan established by an Operating Company for the benefit of Covered Employees. 1.2 "Base Funding Opportunity" shall mean the funding percentage determined with reference to ROE earned by Southern Company and each Operating Company as provided in Schedule VII hereof. 1.3 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 1.4 "Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 1.5 "Business Combination" shall mean a reorganization, merger or consolidation or sale of Southern Company or a sale of all or substantially all of Southern Company's assets. 1.6 "Company Goals" shall mean the goals established annually by the Southern Company Leadership Council and set forth in Schedule III hereof. 1.7 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. 1.8 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 1.9 "Covered Employee" shall mean an employee of an Operating Company covered by a collective bargaining agreement between the Operating Company and a union or other employee representative who participates in a Covered Employee Plan. 1.10 "Covered Employee Plan" shall mean a performance based plan established for the benefit of Covered Employees by an Operating Company pursuant to a collective bargaining agreement which plan is maintained in conjunction with this Performance Pay Plan. 1.11 "Earnings Thresholds" shall mean the Southern Company Earnings Threshold and the Operating Company Earnings Threshold set forth at Section 3.1 of the Plan. 1.12 "Effective Date" shall mean January 1, 1989. The "Restatement Effective Date" shall mean January 1, 1998. 1.13 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.14 "Employee" shall mean each active full-time and regular part-time employee of an Operating Company, regardless of their classification as an exempt or non-exempt employee. The term "Employee" shall not include any person who is a temporary employee, cooperative employee, a contractor of an Operating Company or an employee covered by a collective bargaining agreement unless such employee is eligible to participate in the Plan as an Employee pursuant to an agreement between his Operating Company and his collective bargaining representative. In addition, the term "Employee" shall not include any employee who is eligible to participate in any incentive compensation program maintained by his Operating Company that specifically provides that an eligible employee under such program shall not be entitled to also receive Incentive Pay Awards under this Plan. 1.15 "Funding Unit" shall mean each organizational unit established by an Operating Company for which Company Goals are established and assessed for the purpose of paying Incentive Pay Awards. 1.16 "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. 1.17 "Incentive Pay Award" shall mean the amount awarded to a Participant in accordance with Article IV hereof. 1.18 "Incentive Pay Award Pool" shall mean the pool of funds established in accordance with Article III hereof either for the benefit of Employees or for the benefit of Covered Employees, respectively, and which funds are allocated to each Operating Company. 1.19 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Restatement Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Restatement Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 1.20 "Non-Adopting Company" shall mean any subsidiary or affiliate of Southern Company which is not an Operating Company. 1.21 "Operating Companies" shall mean Southern Company Services, Inc., or any affiliate or subsidiary (direct or indirect) of Southern Company, which the Board of Directors may from time to time determine to be eligible to participate under the Plan and which shall adopt the Plan, and any successor of any such affiliate or subsidiary. The Operating Companies as of the Restatement Effective Date are as follows: Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Company Services, Inc. and Southern Nuclear Operating Company, Inc. 1.22 "Participant" shall mean all Employees and Covered Employees who satisfy the criteria set forth in Article II. 1.23 "Performance Period" shall mean each 12-month period commencing on the first day of January and ending on the last day of December next following. 1.24 "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act. 1.25 "Plan" shall mean the Southern Company Performance Pay Plan, as described herein or as from time to time amended. 1.26 "Plan Administrator" shall mean Southern Company Compensation and Benefits Department. 1.27 "Plan Termination" shall mean the termination of the Plan by an Employing Company or Southern Company following a Southern Change in Control unless an equitable arrangement (embodied in an ongoing substitute or replacement plan) has been made with respect to the Plan in connection with the Southern Change in Control. For purposes of this Plan, an ongoing substitute or alternative plan shall be considered an "equitable arrangement" if a nationally recognized compensation consulting firm chosen by the Committee opines in writing that the post-Southern Change in Control plan is an equitable substitute or replacement of the Plan, and that such substitute or alternative plan provides substantially similar target opportunities and a substantially similar level of performance difficulty. 1.28 "ROE" shall mean return on equity. 1.29 "Southern Board" shall mean the Board of Directors of Southern Company. 1.30 "Southern Change in Control" shall mean any of the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern Company's Voting Securities; provided, however, that for purposes of this subsection (a), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (i) any acquisition directly from Southern Company, (ii) any acquisition by Southern Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation controlled by Southern Company, (iv) any acquisition by a qualified pension plan or publicly held mutual fund, (v) any acquisition by an Employee or Group composed exclusively of Employees, or (vi) any Business Combination which would not otherwise constitute a Change in Control because of the application of clauses (i), (ii) and (iii) of Section 1.30(c); (b) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (c) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (i) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern Company's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern Company's Voting Securities or all or substantially all of Southern Company's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern Company's Voting Securities, (ii) no Person (excluding any corporation resulting from such Business Combination, any qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern Company, its subsidiaries or Surviving Company) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination, and (iii) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. 1.31 "Southern Company" shall mean The Southern Company. 1.32 "Southern Termination" shall mean the following: (a) The Consummation of a reorganization, merger or consolidation of Southern Company under circumstances where either (i) Southern Company is not the surviving corporation or (ii) Southern Company's Voting Securities are no longer publicly traded; (b) The Consummation of a sale or other disposition of all or substantially all of Southern Company's assets; or (c) The Consummation of an acquisition by any Person of Beneficial Ownership of all of Southern Company's Voting Securities such that Southern Company's Voting Securities are no longer publicly traded. 1.33 "Subsidiary Change in Control" shall mean the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Operating Company; provided, however, that for purposes of this Section 1.33, any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, any publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company shall not constitute a Change in Control. (b) Consummation of a reorganization, merger or consolidation of an Operating Company (an "Operating Company Business Combination"), in each case, unless, following such Operating Company Business Combination, Southern Company Controls the corporation surviving or resulting from such Operating Company Business Combination, or (c) Consummation of the sale or other disposition of all or substantially all of the assets of an Operating Company to an entity which Southern Company does not Control. 1.34 "Southern Company Earnings Test" shall mean the test set forth at Section 3.2(b) of the Plan. 1.35 "Southern Company Earnings Threshold" shall mean the percentage ROE determined under Section 3.1(a). 1.36 "Subsidiary Employee" shall mean an Employee of an Operating Company which has undergone a Subsidiary Change in Control. Where the context requires, words in the masculine gender include the feminine and neuter genders and words in the singular include the plural and words in the plural include the singular. ARTICLE II Participation 2.1 Employees. All Employees of an Operating Company shall be eligible to participate in the Plan and receive Incentive Pay Awards. (a) Employees who commence service with an Operating Company after January 1 and before December 15 of a Performance Period shall be eligible to receive Incentive Pay Awards in the same proportion as the ratio of the number of months employed during a Performance Period bears to the total number of months in a Performance Period. The following shall apply for purposes of calculating the number of months of employment with an Operating Company under this Section 2.1: (1) Employees whose effective date of employment is on or before the fourteenth (14th) day of a month shall be considered Employees as of the first day of such month; and (2) Employees whose effective date of employment is on or after the fifteenth (15th) day of a month shall not be considered Employees until the first day of the next succeeding month. (b) Employees whose effective date of employment is on or after December 15 of a Performance Period shall not be eligible to participate until the next succeeding Performance Period. (c) Employees whose employment with an Operating Company is terminated during a Performance Period for one of the following reasons shall be eligible to receive an Incentive Pay Award for such Performance Period on a pro-rata basis: (1) retirement, (2) total disability (as determined by the Social Security Administration), (3) death, (4) termination of employment, but only in the event the Participant shall transfer to or be reemployed by a Non-Adopting Company, or any successor thereto, during such Performance Period, or (5) termination from participation in the Plan because the requirements of Section 1.21 of the Plan are not met. (d) The pro-rata amount of an Incentive Pay Award shall be determined for the Performance Period in which a termination described in Section 2.1(c) occurs by a fraction which is the number of months of employment with an Operating Company during the Performance Period, divided by the total number of months in the Performance Period. The following shall apply for purposes of calculating the number of months of employment with an Operating Company under this Section 2.(1)(d) for an Employee whose service is terminated for one of the reasons described in Section 2.1(c): (1) The month in which the Employee's service terminates shall not be considered if such terminating event occurs on or before the fourteenth (14th) day of the month; and (2) The month in which the Employee's service terminates shall be considered if such terminating event occurs on or after the fifteenth (15th) day of the month. (e) An Employee whose employment with an Operating Company is terminated during a Performance Period for any reason other the reasons described in Section 2.1(c) shall not be eligible to receive an Incentive Pay Award for such Performance Period. 2.2 Covered Employees. All Covered Employees of an Operating Company who are covered under a Covered Employee Plan shall not be eligible to participate in the Plan, but shall be eligible to participate in the Covered Employee Plan and to receive Incentive Pay Awards in accordance with the terms of such Covered Employee Plan. 2.3 Notwithstanding any other provision of the Plan, all Participants covered by a collective bargaining agreement shall become ineligible for Incentive Pay Awards for and after any Performance Period in which such collective bargaining agreement expires or is terminated for any reason. ARTICLE III Funding of Incentive Pay Awards 3.1 Earnings Thresholds. Incentive Pay Award Pools shall be eligible for funding for the Performance Period in an amount determined in accordance with this Article III for each Operating Company, provided both of the Earnings Thresholds set forth in Sections 3.1(a) and (b) are achieved, provided however, notwithstanding anything to the contrary in this Section 3.1, no Earnings Threshold shall apply in the Plan Year of a Southern Change in Control. (a) Southern Company Earnings Threshold. The Southern Company Earnings Threshold shall be met if Southern Company achieves earnings during the Performance Period equal to or greater than a percentage return on equity, which percentage is designated by the Southern Company Leadership Council by no later than the end of each Performance Period and which percentage shall be set forth on Schedule IV hereof. (b) Operating Company Earnings Threshold. The Operating Company Earnings Threshold shall be met with respect to an Operating Company which achieves earnings during the Performance Period equal to or greater than a percentage return on equity, which percentage is designated for such Operating Company by the Southern Company Leadership Council no later than the end of each Performance Period and which percentage and its dollar equivalent shall be set forth on Schedule V hereof. (c) Funding Eligibility. If, during the Performance Period, the Southern Company Earnings Threshold is not satisfied, no Incentive Pay Award Pool for any Operating Company shall be eligible for funding. If, during the Performance Period, the Southern Company Earnings Threshold is satisfied, but an Operating Company fails to satisfy its Operating Company Earnings Threshold, such Operating Company's Incentive Pay Award Pool shall not be eligible for funding. If, during the Performance Period, the Southern Company Earnings Threshold is satisfied and the Operating Company satisfies its Operating Company Earnings Threshold, such Operating Company's Incentive Pay Award Pools shall be eligible for funding in accordance with this Article III. 3.2 Funding for Employee Participants. Subject to the provisions of Section 3.2(c) hereof, Plan funding for the Incentive Pay Award Pool benefiting Employees for each Operating Company shall equal for any given Performance Period the percentage provided under the Southern Company Earnings Test set forth in Section 3.2(a) hereof reduced or increased by the achievement of the Company Goals set forth in Section 3.2(b) hereof. (a) Southern Company (Core Business only) Earnings Test. The Southern Company (Core Business only) Earnings Test set forth in Schedule VII hereof shall be applied at the end of each Performance Period to determine the Base Funding Opportunity. (b) Operating Company (Core Business only) Earnings Test. The Operating Company (Core Business only) Earnings Test set forth in Schedule VIII hereof shall be applied at the end of each Performance Period to determine the Base Funding Opportunity. (c) Company Goals. The Chief Executive Officer of Southern Company shall determine in his sole discretion whether to increase or decrease the Base Funding Opportunity established in Section 3.2(a) hereof based on achievement of the Company Goals set forth in Schedule III hereof. Such increase or decrease shall not cause a deviation of more than 10% in the Base Funding Opportunity. (d) Employee Transfers. If an Employee Participant transfers from one Funding Unit to another Funding Unit during a Performance Period, the transferee Funding Unit will fund such Participant's Incentive Pay Award for the entire Performance Period, and shall include such Participant's Annual Salary in the calculation of the Incentive Pay Award Pool for the transferee Funding Unit without prorating the Annual Salary of such Participant for the Performance Period. 3.3 Funding for Covered Employee Participants. With respect to a Covered Employee Plan sponsored by an Operating Company, such Plan shall be funded in accordance with this Section 3.3. (a) Funding Eligibility. A Covered Employee Plan shall be acceptable for funding provided the Earnings Thresholds set forth in Section 3.1 are satisfied. (b) Maximum Dollar Amount. Provided the Incentive Pay Award Pool for a Covered Employee Plan is acceptable for funding under Section 3.3(a) hereof, the Incentive Pay Award Pool for a Covered Employee Plan shall be funded in accordance with its terms, except that the maximum dollar amount of the Incentive Pay Award Pool for the Covered Employee Plan shall be subject to and may be limited by the Southern Company Earnings Test. 3.4 Extraordinary Item Exception. If requested by an Operating Company, at the sole discretion of the Chief Executive Officer of Southern Company, the Incentive Pay Award Pool for a Performance Period may be calculated without regard to any extraordinary item of income or expense ("Extraordinary Item") incurred by Southern Company or any Operating Company, provided such determination is made prior to the close of the Performance Period. If the Chief Executive Officer of Southern Company approves an Extraordinary Item, it shall be identified in Schedule VI hereof, and, in addition, an explanation as to how such Extraordinary Item shall impact the funding of the Plan and the Incentive Pay Award Pool of the Operating Company requesting approval of the Extraordinary Item shall be set forth therein. 3.5 Determination of Funding Amount. Funding in accordance with this Article III shall be fixed in all events by the end of each Performance Period. ARTICLE IV Incentive Pay Award Opportunities 4.1 Employee Participants. (a) The Incentive Pay Award Pool benefiting Employee Participants of an Operating Company shall be allocated to each Operating Company in accordance with Article III hereof. The amount allocated to each Operating Company shall then be distributed by the Plan Administrator among Participants in proportion to each such Participant's Annual Salary. (b) The Plan Administrator shall be solely responsible for calculating each Participant's Incentive Pay Award and distributing such Incentive Pay Award. (c) The Plan Administrator shall endeavor to pay the Incentive Pay Awards for a Performance Period to the Participants not later than two and one-half (2 1/2) months following the close of the preceding Performance Period, or such shorter or longer period of time following the close of the preceding Performance Period as may be required under the Internal Revenue Code to preserve the timely accrual of the federal income tax deduction for Incentive Pay Awards paid with respect to such Performance Period. (d) The Incentive Pay Award payment shall be made in cash or its functional equivalent and the receipt of such payment may not be deferred under this Plan at the option of the Participant. In the event of a Participant's death prior to the payment of any Incentive Pay Award payable to the Participant, such amount shall be paid to the estate of the Participant. 4.2 Covered Employee Participants. (a) The Incentive Pay Award Pool benefiting Covered Employees of an Operating Company shall be allocated among Covered Employee Participants in the Covered Employee Plan in accordance with the terms of such Covered Employee Plan. (b) The Plan Administrator shall be solely responsible for calculating and distributing each Participant's Incentive Pay Award in accordance with the terms of the Covered Employee Plan in which the Covered Employee Participant participates. ARTICLE V Change in Control 5.1 Southern Change in Control. In the event of a Southern Change in Control, if there is no Plan Termination, payout of Incentive Pay Awards to Participants for the Performance Period in which the Southern Change in Control shall have occurred shall be the greater of actual or target performance under the Plan. 5.2 Plan Termination. Notwithstanding any other provision of this Plan to the contrary, in the event of a Plan Termination within two (2) years following a Southern Change in Control, each Participant who is an Employee on the date of such Plan Termination shall be entitled to receive within thirty (30) days of the Plan Termination, cash in an amount equal to a pro-rated payout of his Incentive Pay Award under the Plan for the Performance Period in which the Plan Termination shall have occurred, at the greater of target or actual performance under the Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the date of the Plan Termination. 5.3 Subsidiary Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Subsidiary Change in Control, each Subsidiary Employee on the date of such Change in Control whose employment is not transferred upon such Subsidiary Change in Control to another Operating Company shall be entitled to receive within thirty (30) days of the Subsidiary Change in Control, cash in an amount equal to a prorated payout of his Incentive Pay Award under the Plan for the Performance Period in which the Subsidiary Change in Control shall have occurred, at the greater of actual or target performance under the Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the date of the Subsidiary Change in Control. 5.4 Southern Termination. Notwithstanding any other provision of this Plan to the contrary, in the event of a Southern Termination, each Participant on the date of such Southern Termination shall be entitled to receive within thirty (30) days of the Southern Termination, cash in an amount equal to a prorated payout of his Incentive Pay Award under the Plan for the Performance Period in which the Southern Termination shall have occurred, at the greater of actual or target performance under the Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the date of the Southern Termination. This Plan shall terminate immediately following the payments provided for in this Section 5.5 Pro rata Calculation. For purposes of calculating any pro rata Incentive Pay Awards under this Article V, a month shall not be considered if the determining event occurs on or before the 14th day of the month, and a month shall be considered if the determining event occurs on or after the 15th day of the month. ARTICLE VI Administration of Plan 6.1 Employment of Agents. The Plan Administrator shall be responsible for the daily administration of the Plan and may appoint other persons or entities to perform or assist in the performance of any of its fiduciary duties, subject to its review and approval. The Plan Administrator shall have the right to remove any such appointee from his position without cause or notice. Any person, group of persons, or entity may serve in more than one fiduciary capacity. 6.2 Record Keeping and Reporting. (a) The Plan Administrator shall maintain permanent records and accounts of Participants and shall be responsible for all receipts, disbursements, transfers and other transactions concerning the Plan. Such accounts, books, and records relating thereto shall be open to inspection and audit by the boards of directors of the Operating Companies and any persons designated thereby at all reasonable times. (b) The Plan Administrator shall undertake the preparation and filing of all documents and forms required by any governmental agency. The Plan Administrator shall keep all such books of account records, and other data as may be necessary for proper administration of the Plan. 6.3 Responsibilities in General. The Plan Administrator shall administer the Plan in accordance with its terms and shall have all powers necessary to carry out the provisions of the Plan as more particularly set forth herein. The Plan Administrator shall interpret the Plan and shall determine all questions concerning eligibility, administration, interpretation, and application of the Plan, and all such determinations shall be conclusive and binding on all Participants and interested persons. The Plan Administrator shall adopt such procedures and guidelines as it deems necessary or desirable in order to discharge its duties hereunder. 6.4 Indemnification. The Operating Companies shall indemnify the Plan Administrator against any and all claims, losses, damages, expenses, and liability arising from its actions or omissions, except when the same are finally adjudicated to be due to gross negligence or willful misconduct. The Operating Companies may purchase at their own expense sufficient liability insurance for the Plan Administrator to cover any and all claims, losses, damages, and expenses arising from any action or omission in connection with the execution of the duties as the Plan Administrator. 6.5 Service of Process. The Plan Administrator shall be the appointed agent for the service of process. ARTICLE VII Miscellaneous Provisions 7.1 No Right of Assignment or Alienation. Neither the Participant nor his personal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments of this Plan shall be void and have no effect. 7.2 No Trust Requirement. Unless the Board of Directors shall in its discretion determine otherwise, the Operating Companies shall neither reserve nor otherwise set aside funds for the payments of Incentive Pay Awards under the Plan. 7.3 Amendment and Termination of Plan. Except for the provisions of Article V hereof, which may not be amended following a Southern Change in Control, Subsidiary Change in Control or a Southern Termination, the Board of Directors may terminate the Plan at any time or may from time to time amend the Plan; provided, however, that no amendment shall impair any rights to payments which have been earned under the Plan prior to the termination or amendment. Any amendment or termination of the Plan shall apply, in the Board of Directors' sole discretion, with respect to all Employees participating in the Plan, irrespective of whether any such amendment or termination has been collectively bargained. Notwithstanding the foregoing, in the event that the Plan is terminated before funding is fixed at the end of a Performance Period, no Incentive Pay Award shall be funded, and accordingly, no Incentive Pay Awards shall be paid for such Performance Period. 7.4 Incentive Pay Award as Compensation. (a) Incentive Pay Awards made in accordance with the Plan are in addition to any other benefits or compensation to which a Participant may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Operating Company. (b) There shall be deducted from each Incentive Pay Award to a Participant the amount of any tax required to be withheld by any governmental authority and paid over by the Operating Company to such governmental authority. 7.5 Coordination with Benefit Plans. Any Incentive Pay Awards paid to a Participant while employed by an Operating Company shall not be considered in the calculation of the Participant's benefits under any employee welfare or pension benefit plan maintained by an Operating Company, unless otherwise specifically provided therein. 7.6 Plan Not a Contract. The Plan shall not be deemed to constitute a contract between an Operating Company and any Employee or Covered Employee, nor shall anything herein contained be deemed to give any Employee or Covered Employee any right to be retained in the employ of an Operating Company or interfere with the right of the Operating Company to discharge any Employee or Covered Employee at any time and to treat him without regard to the effect which such treatment might have upon him as a Participant. 7.7 Choice of Law. This Plan shall be governed by and construed in accordance with the laws of the State of Georgia except for the application of any law which would require the use of the laws of another state. 7.8 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling of interests under APB No. 16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall automatically be void and ineffective in such a manner and to the extent that be eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction and Pooling Accounting is in fact used for such Change in Control transaction. IN WITNESS WHEREOF, Southern Company Services, Inc., through its officers duly authorized, hereby amends and restates Southern Company Performance Pay Plan this _____ day of , 1999, to be effective January 1, 1998. SOUTHERN COMPANY SERVICES, INC. By: _____________________________________________________ Christopher C. Womack Senior Vice President, Human Resources Attest: By: ____________________________________________ Tommy Chisholm Secretary [Corporate Seal] SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE I Employment Date____________ Accrual Factor January 1 - January 14_____ 12/12 = 1.00 January 15 - February 14___ 11/12 = .92 February 15 - March 14_____ 10/12 = .83 March 15 - April 14________ 9/12 = .75 April 15 - May 14__________ 8/12 = .67 May 15 - June 14___________ 7/12 = .58 June 15 - July 14__________ 6/12 = .50 July 15 - August 14________ 5/12 = .42 August 15 - September 14___ 4/12 = .33 September 15 - October 14__ 3/12 = .25 October 15 - November 14___ 2/12 = .17 November 15 - December 14__ 1/12 = .08 December 15 - December 31__ 0/12 = .00 SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE II Termination Date___________ Accrual Factor December 15 - December 31__ 12/12 = 1.00 November 15 - December 14__ 11/12 = .92 October 15 - November 14___ 10/12 = .83 September 15 - October 14__ 9/12 = .75 August 15 - September 14___ 8/12 = .67 July 15 - August 14________ 7/12 = .58 June 15 - July 14__________ 6/12 = .50 May 15 - June 14___________ 5/12 = .42 April 15 - May 14__________ 4/12 = .33 March 15 - April 14________ 3/12 = .25 February 15 - March 14_____ 2/12 = .17 January 15 - February 14___ 1/12 = .08 January 1 - January 14_____ 0/12 = .00 SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE III 1998 COMPANY GOALS
- - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- BIG 1998 Goals APC GPC GULF MPC SAV SNC - - - - - - - --- ----------- --- --- ---- --- --- --- - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- I o Cost Goal(1)(2) $1,144 $1,350 $231 $229 $86.4 $592 $1,107 $1,296 $224 $222 $83.2 $575 - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- II o Overhead Cost Goal(1)(2)(3) $123.0 $219.0 $31.0 $26.0 $15.0 $9.0 $119.0 $210.0 $30.0 $25.0 $14.6 $9.3 - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- IV o Cashflow - above capital $355.0 $645.0 $55.1 $47.0 $22.6 $44.0(4) reinvestment and dividend $369.0 $665.0 $57.7 $49.7 $23.5 $43.0(4) requirements(1)(2) - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ -------- IX o Each operating company will measure customer satisfaction relative to a peer group of 16 competitive utilities. Customer satisfaction scores will be equally weighted across residential and business customers (commercial, industrial and large energy users), and will be scored on a ranking scale where entry into the top quartile represents 100% achievement of this goal. - - - - - - - ----------- ---------------------------------------- -------------- --------------- ------------- ------------ ------------ --------
(1)Dollars expressed in millions (2)Goal assumes 100% performance level. Second figure in column assumes 110% performance level. (3)Figures shown indicate levels of overhead cost, except for Southern Nuclear data which represents reductions in overheads. *Cash flow goal for Southern Nuclear represents level of capital spending. SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE IV THE SOUTHERN COMPANY EARNINGS THRESHOLD Year Percentage ROE 1998 10.75% SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE V OPERATING COMPANY EARNINGS THRESHOLD Percentage ROE Southern Year Alabama Georgia Gulf Mississippi Savannah Nuclear SCS SOCO - - - - - - - ---- ------- ------- ---- ----------- -------- ------- --- ---- 1998 12% 12% 12% 12% 12% 12% 12% 12% SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE VI EXTRAORDINARY ITEMS SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE VII SOUTHERN COMPANY (CORE BUSINESS ONLY) EARNINGS TEST Southern Year Alabama Georgia Gulf Mississippi Savannah Nuclear SCS SOCO - - - - - - - ---- ------- ------- ---- ----------- -------- ------- --- ---- 1998 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% SOUTHERN COMPANY PERFORMANCE PAY PLAN Amended and Restated Effective January 1, 1998 SCHEDULE VIII OPERATING COMPANY (CORE BUSINESS ONLY) EARNINGS TEST Southern Year Alabama Georgia Gulf Mississippi Savannah Nuclear SCS SOCO - - - - - - - ---- ------- ------- ---- ----------- -------- ------- --- ---- 1998 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% 13.5% EX-10.A.66 8 EXHIBIT 10(a)66 SOUTHERN COMPANY DEFERRED COMPENSATION PLAN Troutman Sanders LLP 600 Peachtree Street, N.E. 5200 NationsBank Plaza Atlanta, Georgia 30308 (404) 885-3000 Amended and Restated as of January 1, 1998 SOUTHERN COMPANY DEFERRED COMPENSATION PLAN TABLE OF CONTENTS ARTICLE I Purpose and Adoption of Plan................................1 ARTICLE II Definitions................................................1 ARTICLE III Administration of Plan....................................4 ARTICLE IV Eligibility................................................6 ARTICLE V Deferral Election...........................................7 ARTICLE VI Participants'Accounts......................................8 ARTICLE VII Account Distribution.....................................10 ARTICLE VIII Miscellaneous Provisions................................12 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 was amended effective October 1, 1988, March 1, 1993 and January 1, 1996, and except as otherwise provided herein, the terms of the Plan as in effect prior to January 1, 1998 shall continue to be applicable to deferrals made pursuant to the Plan prior to January 1, 1998. .........1.2 Purpose: This Southern Company Deferred Compensation Plan is designed to permit a select group of management or highly compensated employees 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 their death, disability, retirement, or other termination of employment with an Employing Company. The Plan shall be an unfunded deferred compensation arrangement whose benefits shall be paid solely from the general assets of the Employing Companies. 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 or Incentive Pay and adjustments thereto to reflect income, gains, losses, and other credits or charges. Charges to Participant's Accounts for distributions shall be posted as of the date the Committee (or its designee) notifies its paying agent to make such distribution. .........2.2 "Board of Directors" shall mean the Board of Directors of the Company. .........2.3 "Closing Price" shall mean the closing price on any trading day of a share of the 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. .........2.4 "Committee" shall mean the committee referred to in Section 3.1 hereof. .........2.5 "Common Stock" shall mean the common stock of The Southern Company. .........2.6 "Company" shall mean Southern Company Services, Inc. .........2.7 "Compensation" shall mean the monthly 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 Section 4.1 therein, pursuant to the Employee's exercise of his or her deferral option made in accordance with Section 401(k) 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. .........2.8 "Deferral Election" shall mean the Participant's written election to defer a portion of his or her Compensation or Incentive Pay pursuant to Article V hereof. .........2.9 "Distribution Election" shall mean the election under Article VII hereof, pursuant to which a Participant elects to receive the balance of his or her Account in either a lump sum or in annual installments following the Participant's death, disability, retirement or other termination of Employment with an Employing Company. .........2.10 "Effective Date" shall mean January 1, 1998. .........2.11 "Employee" shall mean any person who is currently employed by an Employing Company. .........2.12 "Employee Savings Plan" shall mean The Southern Company Employee Savings Plan, as amended from time to time. .........2.13 "Employee Stock Ownership Plan" shall mean The Southern Company Employee Stock Ownership Plan, as amended from time to time. .........2.14 "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. .........2.15 "Enrollment Date" shall mean the Effective Date, January 1 of each Plan Year, and such other dates as may be determined from time to time by the Committee. .........2.16 "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. .........2.17 "Investment Election" shall mean the Participant's written election to have his or her deferred Compensation or Incentive Pay invested pursuant to Section 6.2 or Section 6.3 hereof. .........2.18 "Non-adopting Company" shall mean any subsidiary or affiliate of The Southern Company which is not an Employing Company. .........2.19 "Participant" shall mean an Employee or former employee of an Employing Company who is eligible to receive benefits under the Plan or who was so eligible and had an unpaid Account balance upon his or her death, disability, retirement or other termination of employment with an Employing Company. .........2.20 "Pension Plan" shall The Southern Company Pension Plan, as amended from time to time. .........2.21 "Performance Sharing Plan" shall mean The Southern Company Performance Sharing Plan, as amended from time to time. .........2.22 "Plan" shall mean the Southern Company Deferred Compensation Plan, amended and restated as of January 1, 1998, as further amended from time to time. Prior to the January 1, 1996 amendment and restatement, the Plan was entitled the Deferred Compensation Plan for The Southern Electric System. .........2.23 "Plan Year" shall mean the calendar year. .........2.24 "Retirement Income" shall have the same meaning as set forth in the Pension Plan. .........2.25 "Supplemental Benefit Plan" shall mean The Southern Company Supplemental Benefit Plan and the Supplemental Executive Retirement Plan of Savannah Electric and Power Company, each as amended from time to time. .........2.26 "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, the Employee Stock Ownership Plan, the Performance Sharing Plan and the Supplemental Benefit 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 The general administration of the Plan shall be placed in the Committee. The Committee shall consist of the Vice President, Human Resources of The Southern Company, the Director, System Compensation and Benefits of The Southern Company and the Comptroller of The Southern Company. Any member may resign or may be removed by the Board of Directors and new members may be appointed by the Board of Directors at such time or times as the Board of Directors in its discretion shall determine. The Committee shall be chaired by the Vice President, Human Resources of The Southern Company and may select a Secretary (who may, but need not, be a member of the Committee) to keep its records or to assist it in the discharge of its duties. A majority of the members of the Committee shall constitute a quorum for the transaction of business at any meeting. Any determination or action of the Committee may be made or taken by a majority of the members present at any meeting thereof, or without a meeting by resolution or written memorandum concurred in by a majority of the members. .........3.2 No member of the Committee shall receive any compensation from the Plan for his or her service. .........3.3 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 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. The Committee shall be the Plan's agent for service of process. .........3.4 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. 3.5 (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 whose compensation equals or exceeds such minimum amount 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 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. The Committee shall be authorized to establish the minimum compensation 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 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 Notwithstanding the above, the Committee shall be authorized to modify the minimum compensation amount and to rescind the eligibility of any Participant if necessary or advisable to insure 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 Employee Retirement Income Security Act of 1974, as amended. .........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 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 writing on a form 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 or all or a portion of his or her Incentive Pay; (b) The whole percentage of his or her Compensation or Incentive Pay which the Participant elects to defer; and (c) The Distribution Election under Article VII hereof. .........5.3 The initial Deferral Election of a new Participant shall be made by written notice signed by the Participant and delivered to the Participant's Employing Company by the date established by the Committee and shall be effective on the next occurring Enrollment Date. Any modification or revocation of the most recent Deferral Election shall be made by written notice signed by the Participant and delivered to the Participant's Employing Company 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 or Incentive Pay shall be an annual election for each Plan Year unless otherwise modified or revoked as provided herein. 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. .........5.4 Notwithstanding the provisions of Section 5.4 of the Plan, the Committee, in its sole discretion upon written application by a Participant, may authorize the suspension of a Participant's Deferral Election in the event of an unforeseen emergency or hardship of the Participant. A Deferral Election suspension will be on account of hardship if it is necessary in light of immediate and heavy financial needs of the Participant which cannot reasonably be met from the Participant's other financial resources. For this purpose, any amounts held in the Participant's accounts in the Employee Savings Plan and the Employee Stock Ownership Plan shall not be deemed to be reasonably available. Any Deferral Election suspension authorized by the Committee shall become effective as of the first payroll period beginning thirty (30) days after receipt by the Participant's Employing Company of the Participant's suspension application, or as soon as practicable after the receipt of such application. Such Deferral Election suspension shall be effective for the remainder of the Plan Year of application and shall be deemed an annual election by the Participant for each succeeding Plan Year unless otherwise modified by the Participant under the provisions of Section 5.3 hereof. 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 and Incentive Pay shall be credited to the Participant's Account as of the date of each such deferral in accordance with the provisions of this Article VI. .........6.2 On the last business day of each month the Account of each Participant electing to invest his or her deferred Compensation or Incentive Pay for a Plan Year in accordance with this Section 6.2 shall be credited by the Employing Company with an amount, in lieu of interest, equal to the monthly equivalent of the per annum prime rate of interest as published by the Wall Street Journal as the base rate on corporate loans posted as of the last business day of each month by at least seventy five (75%) percent of the United States' largest banks, compounded monthly on any Account balance until such balance is fully distributed. .........6.3 The Account of each Participant electing to invest his or her deferred Compensation or Incentive Pay for a Plan Year in accordance with this Section 6.3 shall be credited on the date of deferral with the deemed number of shares (including fractional shares) of Common Stock which could have been purchased on such date with the dollar amount of such deferral, based upon the Common Stock's Closing Price on the Valuation Date immediately preceding the date of deferral. As of the date on which occurs the payment of dividends on the Common Stock, there shall be credited with respect to the deemed number of shares of Common Stock in the Participant's Account on such date such additional deemed shares (including fractional shares) of Common Stock as follows: (a) In the case of cash dividends, such additional deemed shares as could be purchased at the Closing Price on the Valuation Date immediately preceding the dividend payment date with the dividends which would have been payable on the deemed number of shares previously credited to the Participant's Account; (b) In the case of dividends payable in property other than cash or Common Stock, such additional deemed shares as could be purchased at the Closing Price on the Valuation Date immediately preceding the dividend payment date with the fair market value of the property which would have been payable on the deemed number of shares previously credited to the Participant's Account; or (c) In the case of dividends payable in Common Stock, such additional deemed shares as would have been payable on the deemed number of shares previously credited to the Participant's Account. .........6.4 The Investment Election by a Participant with respect to his or her Account shall be made in writing on a form prescribed by the Committee. Investment Elections shall be delivered to the Participant's Employing Company prior to the first (1st) day of the month immediately prior to his or her Enrollment Date or the next succeeding Plan Year, as appropriate, and shall be effective on such Enrollment Date or the first day of such succeeding Plan Year. Investment Elections shall be irrevocable and shall continue from Plan Year to Plan Year unless the Participant changes the Investment Election regarding future deferred Compensation or Incentive Pay by submitting a written request to his or her Employing Company on a form prescribed by the Committee. Any such change shall become effective as of the first day of the Plan Year next following the Plan Year in which such request is submitted to the Employing Company. No transfer of amounts between investment options shall be permitted under the Plan. .........6.5 As of the last day of each Plan Year, the Committee shall issue a report to each Participant holding an Account, setting forth the dollar amount of deferrals invested under Section 6.2 hereof as of the last day of the Plan Year and, with respect to deferrals invested under Section 6.3 hereof, the aggregate Closing Price of the number of shares of Common Stock credited to each Participant's Account as of the Valuation Date on or immediately preceding the last day of the Plan Year. ARTICLE VII Account Distribution .........7.1 When a Participant retires or terminates his or her employment with an Employing Company, he or she shall be entitled to receive in cash an amount equal to the dollar amount of any deferrals and any amounts in lieu of interest thereon credited to his or her Account under the Investment Election of Section 6.2 hereof, and the dollar value of the aggregate Closing Price of the number of deemed shares of Common Stock (and fractions thereof) credited to his or her Account in accordance with the Investment Election of Section 6.3 hereof, determined as of the date following such termination or retirement that the Company notifies its paying agent to make the distribution or the immediately preceding Valuation Date, and any replacement benefits provided under Sections 6.2, 6.3 and 6.4 hereof prior to January 1, 1996, such amounts to be paid in accordance with the Participant's most recent Distribution Election. The transfer by a Participant between subsidiaries or affiliates of The Southern Company shall not be deemed to be a termination of employment with an Employing Company for purposes of the Plan. No portion of a Participant's Account shall be distributed in Common Stock. .........7.2 In the event that a Participant's most recent Distribution Election is to receive a lump sum distribution of his or her Account, the dollar amount determined under Section 7.1 hereof shall be paid to the Participant not later than sixty (60) days following the date on which the Participant's termination of employment occurs, or as soon as reasonably practicable thereafter. .........7.3 In the event that a Participant's most recent Distribution Election is to receive the distribution of his or her Account in annual installments, the first payment shall be made not later than sixty (60) days following the date on which the Participant's termination of employment occurs, or as soon as reasonably practicable thereafter, and shall be in an amount equal to the dollar balance in the Participant's Account determined under Section 7.1 hereof, divided by the number of annual installments elected. Subsequent annual installments shall be in an amount equal to the dollar value of the Participant's Account determined under Section 7.1 hereof divided by the number of the remaining annual payments, and shall be paid as soon as practicable following each anniversary of the initial payment date until the balance of the Participant's Account is paid in full. .........7.4 The Participants' initial Distribution Elections may not be revoked and shall govern the distribution of the Participants' Accounts. Notwithstanding the foregoing, and except as otherwise provided herein, the Committee may, in its sole discretion, upon application by a Participant, accept an amended Distribution Election from a Participant provided the election is made not prior to the 395th day nor later than the 365th day prior to a distribution of such Participant's Account in accordance with the terms of the Plan; provided further, however, that any Participant who is required to file reports pursuant to Section 16(a) of the Securities and Exchange Act of 1934, as amended, with respect to equity securities of The Southern Company shall not be permitted to amend his or her Distribution Election during any time period for which such Participant is required to file any such reports with respect to the portion of his or her Account invested in accordance with the provisions of Section 6.3 of the Plan, unless the Committee in its sole discretion shall determine otherwise. .........7.5 Upon the death of a Participant prior to the complete distribution his or her Account, the unpaid Account balance shall be paid in the sole discretion of the Committee (a) in a lump sum to the Participant's designated beneficiary within sixty (60) days following the date on which the Committee is provided evidence of the Participant's death (or as soon as reasonably practicable thereafter) or (b) in accordance with the Distribution Election made by such Participant. In the event a beneficiary designation is not on file or the designated beneficiary is deceased or cannot be located, payment will be made to the Participant's estate. .........7.6 Beneficiary designations may be changed by the Participants at any time without the consent of any prior beneficiary. .........7.7 Upon the total disability of a Participant, as determined by the Social Security Administration, prior to the complete distribution of his or her Account, the unpaid balance of his or her Account shall be paid in the sole discretion of the Committee (a) in a lump sum to the Participant or his or her legal representative within sixty (60) days following the date on which the Committee receives notification of the determination of disability by the Social Security Administration (or as soon as reasonable practicable thereafter) or (b) in accordance with the Participant's Deferral Election. .........7.8 Upon application made by a Participant, his or her designated beneficiary, or an authorized legal representative, the Committee may in its sole discretion determine to accelerate payments or, in the event of death or total disability (as determined by Social Security Administration), may extend or otherwise make payments in a manner different from the manner in which such payment would otherwise be made under the Participant's Deferral Election in the absence of such determination. ARTICLE VIII Miscellaneous Provisions .........8.1 Neither the Participant, his or her beneficiary, nor his or her legal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be non-assignable and nontransferable. Any attempt to assign or transfer the right to payments of this Plan shall be void and have no effect. .........8.2 An Employing Company maintaining an Account for the benefit of a Participant shall neither reserve nor specifically set aside funds for the payment of its obligations under the Plan, and such obligations shall be paid solely from the general assets of the Employing Companies. Notwithstanding that a Participant shall be entitled to receive the balance of his or her Account under the Plan, the assets from which such amount may be paid shall at all times be subject to the claims of the creditors of the Participants' Employing Companies. .........8.3 The Plan may be amended, modified, or terminated by the Board of Directors in its sole discretion at any time and from time to time; provided, however, that no such amendment, modification, or termination shall impair any rights to any amounts which have been earned or deferred under the Plan prior to such amendment, modification, or termination. Payment in full in cash of the amount credited to a Participant's Account as of the date of any amendment, modification of termination of the Plan shall not be deemed to be an impairment of the Participant's rights under the Plan. The Plan may also be amended or modified by the Committee if such amendment or modification does not involve a substantial increase in cost to any Employing Company. .........8.4 It is expressly understood and agreed that the payments made in accordance with the Plan are in addition to any other benefits or compensation to which a Participant may be entitled or for which he or she may be eligible, whether funded or unfunded, by reason of his or her employment with any Employing Company. .........8.5 There shall be deducted from each payment under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by an Employing Company to such governmental authority for the account of the person entitled to such distribution. .........8.6 Any Compensation or Incentive Pay deferred by a Participant while employed by an Employing Company shall not be considered "compensation," as the term is defined in the Employee Savings Plan, the Employee Stock Ownership Plan, or the Pension Plan. Distributions from a Participant's Account shall not be considered wages, salaries or compensation under any other employee benefit plan. .........8.7 No provision of this Plan shall be construed to affect in any manner the existing rights of an Employing Company to suspend, terminate, alter, modify, whether or not for cause, the employment relationship of the Participant and his or her Employing Company. .........8.8 This Plan, and all rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. .........IN WITNESS WHEREOF, this Amended and Restated Deferred Compensation Plan has been executed pursuant to resolutions of the Board of Directors of Southern Company Services, Inc., this ___ day of March, 1998, to be effective as provided herein. ......... SOUTHERN COMPANY SERVICES, INC. ......... By:______________________________ ......... C. Alan Martin ..... Vice President, Human Resources Attest: By: ______________________________ Tommy Chisholm Secretary EX-10.A.69 9 EXHIBIT 10(a)69 SOUTHERN COMPANY PERFORMANCE DIVIDEND PLAN AMENDED AND RESTATED TROUTMAN SANDERS LLP NationsBank Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, Georgia 30308 (404) 885-3000 Effective January 1, 1998 SOUTHERN COMPANY PERFORMANCE DIVIDEND PLAN Purposes The purposes of the Southern Company Performance Dividend Plan are to provide a financial incentive which will focus the efforts of certain key employees on areas which will have a direct and significant influence on corporate performance and to provide the potential for levels of compensation which will enhance the Employing Companies' abilities to attract, retain and motivate such key employees. In order to achieve these objectives, the Plan will be based upon corporate performance as measured by total shareholder return or such other performance measure which the Committee may determine under the terms of the Plan. ARTICLE I Definitions For purposes of the Plan, the following terms shall have the following meanings unless a different meaning is plainly required by the context: 1.1 "Annual Dividend" shall mean the aggregate, annual dividend declared by Southern Company on Common Stock for the Plan Year in which an Award is made. 1.2 "Award" shall mean the awards granted pursuant to Article IV hereof. 1.3 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 1.4 "Board of Directors" shall mean the Board of Directors of Southern Company Services, Inc. 1.5 "Business Combination" shall mean a reorganization, merger or consolidation of Southern Company or sale or other disposition of all or substantially all of the assets of Southern Company. 1.6 "Committee" shall mean the Compensation Committee of the Board of Directors of Southern Company. 1.7 "Common Stock" shall mean the common stock of Southern Company. 1.8 "Computation Period" shall mean a four-year period commencing the first day of January of each year, provided, however, that the Computation Period for the first three years beginning in the year of the effective date of the Plan shall be one year, two years and three years, respectively, beginning January 1, 1997. 1.9 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. 1.10 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 1.11 "Employing Company" shall mean Southern Company Services, Inc., or any other affiliate or subsidiary (direct or indirect) of 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. 1.12 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.13 "Group" shall mean group within the meaning of Section 14(d) of the Exchange Act. 1.14 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern Company's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 1.15 "Key Employee" shall mean any person who is or was employed by an Employing Company who has been granted Stock Options. 1.16 "Participant" shall mean a Key Employee who satisfies the criteria set forth in Article III. 1.17 "Payment Date" shall mean the date the check evidencing an Award is endorsed by an authorized person of an Employing Company. 1.18 "Peer Group Common Stock" shall mean the common stock of the Peer Group Companies. 1.19 "Peer Group Companies" shall mean those Companies designated by Goldman Sachs as the 80 Utility Peer Group Companies as published quarterly and as composed from time to time. In the event that Goldman Sachs no longer publishes the 80 Utility Peer Group Companies, the Committee shall choose such other and similar list of national peer group companies as published by a similarly nationally recognized firm. 1.20 "Performance Based" shall mean compensation which qualifies as "performance based" within the meaning of Code Section 162(m)(4)(c) and the regulations thereunder. 1.21 "Permanent Disability" shall mean such permanent disability as defined in The Southern Company Pension Plan. 1.22 "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Exchange Act. 1.23 "Phantom Stock" shall mean phantom shares of Common Stock as defined by The Southern Company Deferred Compensation Plan. 1.24 "Plan" shall mean the Southern Company Performance Dividend Plan. 1.25 "Plan Termination" shall mean the termination of the Plan by Southern Company or an Employing Company following a Southern Change in Control unless an equitable arrangement (embodied in an ongoing substitute or replacement plan) has been made with respect to the Plan in connection with the Southern Change in Control. For purposes of this Plan, an ongoing substitute or alternative plan shall be considered an "equitable arrangement" if a nationally recognized compensation consulting firm chosen by the Committee opines in writing that the post-Southern Change in Control plan is an equitable substitute or replacement of the Plan, and that such substitute or alternative plan provides substantially similar target opportunities and a substantially similar level of performance difficulty. 1.26 "Plan Year" shall mean the calendar year. 1.27 "Retirement" shall mean the termination of employment with an Employing Company under the terms of The Southern Company Pension Plan or such other retirement or early retirement plan or arrangement which the Committee shall adopt and make available to a Participant. 1.28 "Southern Board" shall mean the Board of Directors of The Southern Company. 1.29 "Southern Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern Company's Voting Securities; provided, however, that for purposes of this subsection (i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern Company; (B) any acquisition by Southern Company; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any corporation controlled by Southern Company; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by an Employee or Group composed exclusively of Employees; or (F) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Section 1.29(iii). (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (iii) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern Company's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern Company's Voting Securities or all or substantially all of Southern Company's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern Company's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern Company, its subsidiaries or Surviving Company) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. 1.30 "Southern Company" shall mean The Southern Company. 1.31 "Subsidiary Change in Control" shall mean the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Subsection 1.31, any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company shall not constitute a Change in Control; (ii) Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Company Controls the corporation surviving or resulting from such Employing Company Business Combination; or (iii) Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern Company does not Control. 1.32 "Southern Termination" shall mean the following: (a) The Consummation of a reorganization, merger or consolidation of Southern Company under circumstances where either (i) Southern Company is not the surviving corporation or (ii) Southern Company's Voting Securities are no longer publicly traded; (b) The Consummation of a sale or other disposition of all or substantially all of Southern Company's assets; or (c) The Consummation of an acquisition by any Person of Beneficial Ownership of all of Southern Company's Voting Securities such that Southern Company's Voting Securities are no longer publicly traded. 1.33 "Subsidiary Employee" shall mean an Employee of an Employing Company which has undergone a Subsidiary Change in Control. 1.34 "Stock Option" shall mean those options to acquire Common Stock awarded to Participants pursuant to the Southern Company Performance Stock Plan. 1.35 "Termination for Cause" or "Cause" shall mean the termination of a Participant's employment by an Employing Company under any of the following circumstances: (a) The Participant willfully neglects or refuses to discharge his or her duties to the Employing Company as an employee or refuses to comply with any lawful or reasonable instructions given to him or her by the Employing Company without reasonable excuse; (b) The Participant is guilty of gross misconduct. For purposes of this Plan, the following acts shall constitute gross misconduct: (i) any act involving fraud or dishonesty or breach of appropriate regulations of competent authorities; (ii) the carrying out of any activity or the making of any statement which would prejudice and/or reduce the good name and standing of Southern Company or an Employing Company or would bring Southern Company or an Employing Company any into contempt, ridicule or would reasonably shock or offend any community in which Southern Company or an Employing Company is located; (iii) attendance at work in a state of intoxication or otherwise being found in possession at his or her workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (iv) assault or other act of violence against any employee or other person during the course of the Participant's employment; and (v) conviction of any felony or misdemeanor involving moral turpitude. 1.36 "Total Shareholder Return" or "TSR" shall mean the total amount an investor would receive by investing $100 per quarter in Common Stock or in Peer Group Common Stock, as the case may be, as determined by measuring the total dividends which would have been paid on such Common Stock or Peer Group Common Stock by reinvesting such dividends on a quarterly basis in additional shares of Common Stock or Peer Group Common Stock as the case may be and the total gain or loss on such Common Stock or Peer Group Common Stock as if such stock had been sold at the closing price on the last day of the respective Computation Period. 1.37 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. Where the context requires, 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 II Plan Administration. 2.1 The Plan shall be administered by the Committee. The Committee is authorized to establish such rules and to appoint such agents as it deems appropriate for the proper administration of the Plan, and to make such determinations and to take such steps in connection with the Plan or the benefits provided hereunder as it deems necessary or advisable. 2.2 Plan Interpretation. The Committee shall have the exclusive authority to interpret the Plan. The decision of the Committee with respect to any question arising as to the grant of an Award to a Participant in the Plan, the amount, term, form, and time of payment of Awards under the Plan, or any other matter concerning the Plan shall be final, conclusive, and binding on both Southern Company and the Participants. ARTICLE III Participants 3.1 Participation in the Plan shall be limited to Key Employees of the Employing Companies, or in the case of death, their estates or beneficiaries, holding Stock Options as of the last day of any Computation Period. 3.2 Any Participant who terminates his or her employment with an Employing Company and who is not immediately re-employed with an affiliate of an Employing Company prior to the Payment Date of any Award due under this Plan for reasons other than death, Permanent Disability, or Retirement shall forfeit any Award due under this Plan. If a Participant terminates his or her employment by reason of death, Permanent Disability or Retirement, such Participant or his or her estate or representative shall continue to be eligible to receive Awards with respect to any Stock Options which remain outstanding in accordance with their terms. 3.3 Notwithstanding any other provision of this Plan, no Participant whose employment is terminated by an Employing Company for Cause shall be eligible to receive an Award under this Plan. 3.4 Notwithstanding any other provision of this Plan, the maximum Award for any Plan Year payable to any Participant with respect to Stock Options awarded during such Plan Year shall be six million dollars ($6,000,000). 3.5 In the case of an individual who becomes a Participant subsequent to January 1, 1997, such Participant shall participate in each Computation Period which ends not less than two (2) years after becoming a Participant. A new four-year measuring period shall begin each year in order to recognize the need to link objectives over longer periods of time, to recognize changes in the operating environment, and to encourage Participants to make long-term decisions. ARTICLE IV Performance Dividend Award 4.1 Each Participant shall receive an Award on the last day of each Computation Period which shall be based upon the number of vested and unvested, outstanding Stock Options held by the Participant on the last day of such Computation Period multiplied by the Annual Dividend multiplied by the Payout Percentage determined in accordance with the following schedule: Percentile of Southern TSR Payout Percentage Versus Peer Group TSR 90th and above 100% 70th 75% 50th 50% 30th 25% Below 30th 0% The Payout Percentage for performance levels falling between the percentiles listed above shall be interpolated on a straight line basis for any given Plan Year. The Committee may increase the Payout Percentage by up to a factor of two (2) with respect to such Participants and under such circumstances as the Committee in its discretion shall deem appropriate. 4.2 The Payout Percentage set forth herein shall be based on Southern Company's Total Shareholder Return during a Computation Period as compared to the Total Shareholder Return ranking of the Peer Group Companies for such Computation Period. The Total Shareholder Return of the Peer Group Companies shall be determined annually by an independent certified public accountant and shall be properly adjusted and annualized by such accountant so that the Peer Group Companies' Total Shareholder Return may be accurately compared to that of Southern Company. 4.3 Notwithstanding the above provisions, an Award shall not be granted for any Computation Period ending with the Plan Year in which the current earnings of Southern Company are less than the amount necessary to fund dividends on its Common Stock at the rate such dividends were paid for the immediately preceding Plan Year. 4.4 Awards shall be paid in cash on or before the 15th day of the third month following the last day of the Computation Period or, with respect to those Participants who are otherwise eligible to participate in the Southern Company Deferred Compensation Plan, may be deferred by exercising an option to do so no later than 12 months before any amount would otherwise be distributed pursuant to this Section 4.4. If an election is made to defer the receipt of the amount of any Award, such amount shall be deemed to be invested in Phantom Stock. Dividend equivalents earned on such Phantom Stock shall be automatically invested in additional shares of Phantom Stock. ARTICLE V Change in Control and Southern Termination 5.1 Southern Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Plan Termination within two (2) years following a Southern Change in Control, each Participant who is an employee of his Employing Company on the date of such Plan Termination shall be entitled to receive within thirty (30) days of the Plan Termination, cash for each Award held as of such date, based on actual performance under Section 4.1 hereof determined as of the date of the Plan Termination, and the Annual Dividend declared prior to the date of the Plan Termination. 5.2 Subsidiary Change in Control. Notwithstanding any other provision of this Plan to the contrary, in the event of a Subsidiary Change in Control, each Subsidiary Employee on the date of such Change in Control whose employment is not transferred upon such Subsidiary Change in Control to another Employing Company shall be entitled to receive within thirty (30) days of the Subsidiary Change in Control, cash for each Award held as of such date, based on actual performance under Section 4.1 hereof determined as of the date on which the Subsidiary Change in Control shall have occurred, and the Annual Dividend declared prior to the date of the Subsidiary Change in Control. 5.3 Southern Termination. Notwithstanding any other provision of this Plan to the contrary, in the event of a Southern Termination, each Participant who is an employee of his Employing Company on the date of such Southern Termination shall be entitled to receive within thirty (30) days of the Southern Termination, cash for each Award held as of such date, based on actual performance under Section 4.1 hereof determined as of the date on which the Southern Termination shall have occurred, and the Annual Dividend declared prior to the date of the Southern Termination. ARTICLE VI Miscellaneous Provisions 6.1 Neither the Participant, his or her beneficiary, nor his or her personal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments under this Plan shall be void and have no effect. 6.2 An Employing Company shall neither reserve nor otherwise set aside funds for the payments of any Awards under this Plan. 6.3 Except for the provisions of Article V, which may not be amended, modified or terminated following a Southern Change in Control, a Subsidiary Change in Control or a Southern Termination, the Plan may be amended, modified, or terminated by the Board of Directors in its sole discretion at any time and from time to time; provided, however, that no such amendment, modification, or termination shall impair any rights to payments which have accrued under the Plan prior to such amendment, modification, or termination. 6.4 It is expressly understood and agreed that Awards made in accordance with the Plan are in addition to any other benefits or compensation to which a Participant may be entitled or for which he or she may be eligible, whether funded or unfunded, by reason of his or her employment with an Employing Company. 6.5 There shall be deducted from the payment of each Award under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by an Employing Company to such governmental authority for the account of the person entitled to such distribution. 6.6 Any Awards paid to a Participant while employed by an Employing Company shall not be considered in the calculation of the Participant's benefits under any other employee welfare or pension benefit plan maintained by an Employing Company, unless otherwise specifically provided therein. 6.7 This Plan, and all rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. 6.8 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall automatically be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction and Pooling Accounting is in fact used for such Change in Control transaction. IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly authorized officers, hereby adopts the Southern Company Performance Dividend Plan this ____ day of _____________, 1999, to be effective ______________, 1998. SOUTHERN COMPANY SERVICES, INC. By: Christopher C. Womack Senior Vice President, Human Resources Attest: By: Tommy Chisholm Secretary [CORPORATE SEAL] EX-10.A.71 10 EXHIBIT 10(a)71 SECOND AMENDMENT TO THE SOUTHERN COMPANY PENSION PLAN WHEREAS, the Board of Directors of Southern Company Services, Inc. (the "Company") heretofore adopted The Southern Company Pension Plan, as amended and restated (the "Plan"), effective January 1, 1997; and WHEREAS, the Company desires to amend the Plan to clarify the grant of prior service credit to certain employees formerly employed by Commonwealth Edison of Indiana; and WHEREAS, the Company also desires to amend the Plan to discontinue eligibility under the Plan for employees classified as temporary employees and to cease the accrual of benefits of any temporary employees who may be participating in the Plan effective as of August 31, 1998; and WHEREAS, the Company also desires to amend the Plan to reflect the corporate name change of certain Employing Companies; and WHEREAS, the Company also desires to amend the Plan to make certain other technical and miscellaneous corrections; and WHEREAS, the Company is authorized pursuant to Section 13.1 of the Plan to amend the Plan at any time. NOW, THEREFORE, the Company hereby amends the Plan as follows to be effective as provided herein: 1. Effective January 1, 1998, Section 1.16 of the Plan, as amended by the First Amendment to the Plan, is further amended by deleting the last sentence of such Section and substituting the following in lieu thereof: Notwithstanding the preceding, "Employee" shall not mean any person who is classified by an Employing Company as an independent contractor regardless of whether such classification is determined to be in error. 2. Effective September 1, 1998, Section 2.5 of the Plan is amended by adding the following sentence to the end of the first paragraph thereof: Notwithstanding the foregoing, the exclusion set forth in Section 2.6 shall apply with respect to any temporary employee effective as of September 1, 1998. 3. Effective September 1, 1998, Section 2.6 of the Plan is amended by deleting such subsection in its entirety and substituting the following in lieu thereof: 2.6 Exclusion of certain categories of employees. Notwithstanding any other provision of this Article II, leased employees and, effective September 1, 1998, any individuals classified by an Employing Company as temporary employees, regardless of whether either such classification is determined to be in error, shall not be eligible to participate in the Plan. Notwithstanding the preceding sentence, temporary employees, defined as Employees in Section 1.16 and participating in the Plan prior to July 1, 1991, are eligible to participate in the Plan up through and including August 31, 1998. 4. Effective January 1, 1998, Section 16.1(b) of the Plan as amended by the First Amendment to the Plan is further amended by deleting such subsection (b) in its entirety and substituting the following in lieu thereof: (b) Former Commonwealth Edison of Indiana Employees. Effective January 1, 1998, notwithstanding any other provision of the Plan to the contrary, any former employee of Commonwealth Edison of Indiana ("ComEd") who was employed by Southern Energy Resources, Inc. on or before December 31, 1997 and is set forth on a schedule of employees acknowledged by the Retirement Board (hereafter "January 1 ComEd Employees") shall be eligible to participate in the Plan effective January 1, 1998. In addition, any former employee of ComEd who becomes employed by Southern Energy Resources, Inc. on or after January 1, 1998 but prior to April 1, 1998 (hereafter "Date of Employment") and is set forth on the schedule of employees acknowledged by the Retirement Board (hereafter "Pre-April 1 ComEd Employees") shall become a Participant as of the first day of the month coincident with or next following such employee's Date of Employment. The following provisions of this subparagraph (b) shall also apply with respect to all January 1 ComEd Employees and Pre-April 1 ComEd Employees (hereafter jointly referred to as "ComEd Scheduled Employees"): (1) Such ComEd Scheduled Employee, if and when he attains his Early Retirement Date, Normal Retirement Date, or Deferred Retirement Date, or terminates service for any reason subject to the requirements of Section 8.1 or 8.2, shall be entitled to receive Retirement Income based on both his Accredited Service with an Employing Company and the service accrued under the Commonwealth Edison Company of Indiana Service Annuity System Plan (the "ComEd Plan") which shall be treated as if Accredited Service under this Plan. To calculate such ComEd Scheduled Employee's Retirement Income, the ComEd Scheduled Employee's Accrued Retirement Income, as determined in accordance with Section 5.1, shall first be reduced by the Employee's accrued benefit in the ComEd Plan, determined as if he retired from ComEd at his normal retirement age, as that term is defined in the ComEd Plan on December 31, 1997. Thereafter, such Employee's Retirement Income shall be subject to applicable reductions, if any, in accordance with Article V, Section 8.1 and Section 8.2, as appropriate. (2) For purposes of calculating such ComEd Scheduled Employee's Social Security Offset under Section 5.4, the Social Security Offset shall be determined by using the actual salary history of the ComEd Scheduled Employee during his employment with any Affiliated Employer, and ComEd. If the actual salary history is not available from ComEd, such history shall be estimated in accordance with Section 5.4. (3) For vesting purposes, such ComEd Scheduled Employee shall be entitled to receive Vesting Years of Service as provided in Section 1.41 and, in addition, shall be entitled to vesting service equal to the sum of the years of service accrued under the ComEd Plan. 5. Effective September 1, 1998, Section 17.1 (d) is amended by adding the following sentence to the end thereof: Notwithstanding the preceding, in the event a SEPCO Employee is classified as a temporary employee and is eligible to participate in the Plan as such in accordance with this Article XVII, such SEPCO Employee shall be ineligible to participate in the Plan on and after September 1, 1998. 6. Effective January 1, 1998, Section 1.14 of the SEPCO Schedule which is incorporated in the Plan by the First Amendment thereto, is amended by deleting the last sentence of such section and substituting the following in lieu thereof: Notwithstanding the preceding, "Employee" shall not mean any person who is classified by the Company as an independent contractor regardless of whether such classification is determined to be an error. 7. Effective September 1, 1998, Section 3.07 of the SEPCO Schedule which is incorporated into the Plan by the First Amendment thereto, is amended by deleting such section in its entirety and substituting the following in lieu thereof: Section 3.07 Notwithstanding any other provision of this Article 3 of the SEPCO Schedule, Leased Employees and, effective September 1, 1998, any individuals classified by the Company as temporary employees, regardless of whether either such classification is determined to be an error, shall not be eligible to participate in the Plan. Notwithstanding the preceding sentence, temporary employees as defined in Section 1.14 of the SEPCO Schedule who were participating in the SEPCO Plan as temporary employees prior to October 13, 1994, shall be eligible to participate in the Plan up to and including August 31, 1998. 8. Effective July 1, 1998, Appendix A of the Plan is amended by deleting such Appendix in its entirety and substituting the following in lieu thereof: APPENDIX A THE SOUTHERN COMPANY PENSION PLAN EMPLOYING COMPANIES AS OF JULY 1, 1998 Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. 9. Except as amended herein by this Second Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly authorized officer, has adopted this Second Amendment to The Southern Company Pension Plan pursuant to resolutions of the Board of Directors of Southern Company Services, Inc. this ____ day of __________, 1998, to be effective as stated herein. SOUTHERN COMPANY SERVICES, INC. By: Title: ATTEST By: ________________________ Its: ________________________ THIRD AMENDMENT TO THE SOUTHERN COMPANY PENSION PLAN WHEREAS, the Board of Directors of Southern Company Services, Inc. (the "Company") heretofore adopted The Southern Company Pension Plan, as amended and restated (the "Plan"), effective January 1, 1997; and WHEREAS, the Company desires to amend the Plan to modify the definition of Earnings for appliance salespersons to include certain nonproductive pay earnings types; and WHEREAS, the Company desires to amend the Plan to grant prior service credit to certain employees formerly employed by Commonwealth Energy Systems ("CES") and to provide for an offset of the CES retirement benefit; and WHEREAS, the Company desires to amend the Plan to grandfather certain employees of Southern Company Energy Marketing L.P. who are rehired by an Employing Company; and WHEREAS, the Company desires to clarify Plan language concerning the Retirement Board's responsibility for controlling and managing Plan assets and to clarify the calculation of the level income form of payment with respect to Alternate Payees; and WHEREAS, the Company is authorized pursuant to Section 13.1 of the Plan to amend the Plan at any time. NOW, THEREFORE, the Company hereby amends the Plan as follows to be effective as provided herein: 1. Effective July 1, 1998, Subsection 1.13(b) of the Plan shall be amended by adding the following new language to the end thereof: Effective as of July 1, 1998, "Earnings" shall also include, for appliance salespersons, certain nonproductive pay earnings types as determined from time to time by the Board of Directors and set forth on Appendix B to the Plan, which Appendix may be updated from time to time. 2. Effective January 1, 1998, Section 5.5 of the Plan shall be amended by deleting the last sentence thereof and by adding the following new language: The Federal primary Social Security benefit used in calculating an Employee's Retirement Income and adjustment described in the preceding sentence shall be determined by using the salary history of the Employee during his employment with any Affiliated Employer, as calculated in accordance with Section 5.4. Notwithstanding the preceding sentence with respect to an Alternate Payee, the adjustment described in this paragraph shall be determined by using the Alternate Payee's actual Social Security salary history and estimated age 65 Social Security benefit provided that the Alternate Payee secures this information for the Retirement Board. 3. Effective January 1, 1999, Article XVI of the Plan shall be amended by adding the following to the end thereof: (c) Former Commonwealth Energy System Employees. (1) Effective January 1, 1999, notwithstanding any other provision of the Plan to the contrary, any former employees of Commonwealth Energy System ("CES") who were employed by Southern Energy Resources, Inc. and are set forth on a schedule of employees acknowledged by the Retirement Board (hereinafter "CES Employees") shall be eligible to become a Participant as of the first day of the month coincident with or next following the later of the CES Employee's employment date or the date on which he first completes an Eligibility Year of Service as provided in Paragraph (5) below. (2) CES Employees who (A) were actively employed by CES on January 1, 1997 and (B) attain their fortieth (40th) birthday on or before January 1, 2002 shall not be subject to provisions of Article XV of the Plan. (3) If and when a CES Employee attains his Early Retirement Date, Normal Retirement Date, or Deferred Retirement Date, or terminates service for any reason subject to the requirements of Section 8.1 or 8.2, he shall be entitled to receive Retirement Income based on both his Accredited Service with an Employing Company and the Credited Service as defined under The Pension Plan for Employees of Commonwealth Energy System and Subsidiary Companies (the "CES Plan") which shall be treated as if Accredited Service under this Plan. However, prior to adjustment for forms of payment, a CES Employee's Retirement Income will be reduced by the Actuarial Equivalent as defined in Appendix D of the applicable amounts set forth in Appendix C. Thereafter, such Employee's benefit shall be subject to applicable reductions, if any, in accordance with Article V, Section 8.1 and Section 8.2, as appropriate. (4) For purposes of calculating Retirement Income, such CES Employee's actual salary history with CES shall be included. With respect to determining the Social Security Offset, if the actual salary history is not available from CES, such history shall be estimated in accordance with Section 5.4. (5) For vesting and participation purposes, such CES Employee shall be entitled to receive Vesting and Eligibility Years of Service as provided under the Plan and, in addition, shall be entitled to vesting and eligibility service equal to the sum of the Years of Service as defined and accrued under the CES Plan. (6) Notwithstanding any provision in this Plan to the contrary, prior to the offset described in Paragraph 3 above, a CES Employee will be entitled to his Retirement Income or his Retirement Allowance or vested benefit determined under Appendix D as of the earlier of his retirement, termination of employment, or December 31, 2001 whichever has the greater Actuarial Equivalent value as defined in Appendix D. Such determination will be made prior to any adjustment for forms of payments. 4. Effective February 11, 1999, Section 10.9 of the Plan shall be amended by deleting such section in its entirety and replacing it with the following: Section 10.9 Areas in which the Retirement Board does not have responsibility. The Retirement Board shall not have responsibility with respect to control or management of the assets of the Plan insofar as such control or management is assigned under the Trust Agreement to a Person, including but not limited to an Asset Manager, as those terms are defined under the Trust Agreement. The responsibility for providing a procedure for establishing and carrying out a funding policy and method for the Plan consistent with the objectives of the Plan and the requirements of Title I of ERISA shall be that of The Southern Company Pension Fund Investment Review Committee. 5. Effective January 1, 1999, Section 15.1 of the Plan shall be amended by adding the following new language to the end thereof: (e) Notwithstanding paragraph (c) of this Section 15.1, employees that have been previously employed by an Employing Company, transferred to Southern Company Energy Marketing, L.P., subsequently transfer back to an Employing Company, and are not described in paragraph (a) of this Section 15.1, shall not be subject to this Article XV but shall be subject to eligibility to participate in the Plan in accordance with the provisions of Article II. 6. Except as amended herein by this Third Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly authorized officer, has adopted this Third Amendment to The Southern Company Pension Plan pursuant to resolutions of the Board of Directors of Southern Company Services, Inc. this ____ day of __________, 1999, to be effective as stated herein. SOUTHERN COMPANY SERVICES, INC. By: Title: ATTEST By: ________________________ Its: ________________________ APPENDIX B Nonproductive Pay Earnings Types Earnings Code Earnings Description 003 Salesperson - Hourly 092 Holiday Taken 093 Meetings 095 Meetings - Safety 096 Disability 100% 100 Disability Extended Approval 106 Leave - Death 108 Occupational Injury 111 Jury Duty 112 Training 113 Safety Training 115 Vacation 116 Vacation Special Circumstances 117 Vacation FMLA Employee 118 Vacation FMLA Family Care 119 Time Off With Pay 125 Holiday Banked - Taken 127 Vacation In Lieu Of Disability 442 DISABILITY FMLA EMPLOYEE EX-10.A.72 11 EXHIBIT 10(a)72 SOUTHERN COMPANY PERFORMANCE STOCK PLAN AMENDED AND RESTATED TROUTMAN SANDERS LLP NationsBank Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, Georgia 30308 (404) 885-3000 Effective January 1, 1998 SOUTHERN COMPANY PERFORMANCE STOCK PLAN AMENDED AND RESTATED Purposes This Southern Company Performance Stock Plan, as amended and restated, is intended to maximize the long-term success of Southern Company, ensure a balanced emphasis on both current and long-term performance, enhance Participants' identification with shareholders' interests, and facilitate the attraction and retention of key individuals with outstanding ability. ARTICLE I Definitions. Whenever used in the Plan, the following terms shall have the meaning set forth below: 1.1 "Award" shall mean, individually and collectively, any Option, Stock Appreciation Right or Restricted Stock granted under the Plan. 1.2 "Award Document" shall mean the written document evidencing the grant of an Award and setting forth the terms and conditions thereof. 1.3 "Base Value" shall mean the Fair Market Value of a Stock Appreciation Right on the date of its grant. 1.4 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 1.5 "Board" or "Board of Directors" shall mean the Board of Directors of Southern Company. 1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended. 1.7 "Committee" shall mean the Compensation Committee of the Board of Directors composed solely of not less than three (3) Nonemployee Directors and, to the extent necessary for any Award intended to qualify as Performance Based to so qualify, each member of the Committee shall be an Outside Director. 1.8 "Common Stock" shall mean the common stock of Southern Company. 1.9 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. 1.10 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 1.11 "Covered Employee" shall mean a Participant who is, as of the last day of Southern Company's fiscal year in which the Participant shall be required to recognize taxable income with respect to an Award, a "covered employee" within the meaning of Code section 162(m)(3) and the regulations thereunder. 1.12 "Director" shall mean any person who is currently a member of the Board of Directors or of the board of directors of an Employing Company. 1.13 "Disability" shall mean total and permanent disability as determined by the Social Security Administration. 1.14 "Effective Date" shall mean January 1, 1998. 1.15 "Employee" shall mean any person who is currently employed by an Employing Company. 1.16 "Employing Company" shall mean any affiliate or subsidiary (direct or indirect) of Southern Company, which the Board of Directors may from time to time determine to bring under the Plan and which may adopt the Plan, and any successor of any of them. The Employing Companies as of January 1, 1998 are: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. Southern Company Energy Solutions, Inc. 1.17 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.18 "Fair Market Value" shall mean the average of the high and low prices at which a share of Common Stock shall have been traded on the respective measurement date, such as the date of grant or the exercise of an Award, or on the next preceding trading day if such date was not a trading date, as reported on the New York Stock Exchange-Composite Transactions Listing, or as otherwise determined by the Committee. In no event shall the Fair Market Value equal less than the par value of the Common Stock. 1.19 "Group" shall mean group within the meaning of Section 14(d) of the Exchange Act. 1.20 "Incentive Stock Option" shall mean a stock option satisfying the requirements of Section 422 of the Code granted pursuant to Section 4.1(b) and designated by the Committee as an Incentive Stock Option. 1.21 "Nonemployee Director" shall mean a Director of Southern Company who is a "nonemployee director" within the meaning of Rule 16b-3 promulgated under the Exchange Act. 1.22 "Nonqualified Stock Option" shall mean an Option, other than an Incentive Stock Option, granted pursuant to Section 4.1(c). 1.23 "Option" shall mean, individually and collectively, an Incentive Stock Option or a Nonqualified Stock Option to purchase Common Stock. 1.24 "Optionee" shall mean a person to whom an Option has been granted under the Plan. 1.25 "Option Price" shall mean the price per share of Common Stock set by the grant of an Option, but in no event less than the Fair Market Value of the Common Stock on the date of grant. 1.26 "Outside Director" shall mean a Director of Southern Company who is an "outside director" within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder. 1.27 "Participant" shall mean any Director or Employee who satisfies the criteria set forth in Article III. 1.28 "Performance-Based" shall mean compensation which qualifies as "performance-based" within the meaning of Code section 162(m)(4)(c) and the regulations thereunder. 1.29 "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act. 1.30 "Plan" shall mean this Southern Company Performance Stock Plan, as amended and restated and as may be further amended from time to time. 1.31 "Restricted Stock" shall mean an Award granted pursuant to Section 4.1(e). 1.32 "Retirement" shall mean the termination of service or employment by a Participant on or after age 65 or as otherwise determined by the Committee in its sole discretion. 1.33 "Separation Date" shall mean, as determined by the Committee, the date on which a Participant's service or employment with Southern Company or an Employing Company terminates for reasons other than his transfer of service or employment to Southern Company or another Employing Company. Whether any leave of absence shall constitute a termination of service or employment for the purposes of the Plan shall be determined in each case by the Committee in its sole discretion. 1.34 "Stock Appreciation Right" or "SAR" shall mean a right to any appreciation in value of shares of Common Stock granted pursuant to Section 4.1(d). 1.35 "Southern Company" shall mean The Southern Company. 1.36 "Southern Termination" shall mean the following: (a) The Consummation of a reorganization, merger or consolidation of Southern Company under circumstances where either (i) Southern Company is not the surviving corporation or (ii) Southern Company's Voting Securities are no longer publicly traded; (b) The sale or other disposition of all or substantially all of Southern Company's assets; or (c) The Consummation of an acquisition by any Person of Beneficial Ownership of all of Southern Company's Voting Securities such that Southern Company's Voting Securities are no longer publicly traded. 1.37 "Subsidiary Change in Control" shall mean the following: (a) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Subsection 1.37, any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern Company or any corporation Controlled by Southern Company shall not constitute a Change in Control; (b) The Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Company Controls the corporation surviving or resulting from such Employing Company Business Combination; or (c) The Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern Company does not Control. 1.38 "Subsidiary Employee" shall mean an Employee of an Employing Company which has undergone a Subsidiary Change in Control whose employment is not immediately transferred to another Employing Company upon such Subsidiary Change in Control. 1.39 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. Where the context requires, 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 II 2.1 Plan Administration. The Plan shall be administered by the Committee. The Committee is authorized to establish such rules, to appoint such agents and to delegate such authority as it deems appropriate for the proper administration of the Plan, including, but not limited to, the delegation of authority to such person or persons to exercise the discretion provided in Section 5.1 hereof to determine whether a Participant may exercise an Award subsequent to termination of employment, and to make such determinations and to take such steps in connection with the Plan or the benefits provided hereunder as it deems necessary or advisable. 2.2 Plan Interpretation. The Committee shall have the exclusive authority to interpret the Plan. The decision of the Committee with respect to any question arising as to the grant of an Award to a Participant in the Plan, the amount, term, form, and time of payment of Awards under the Plan, or any other matter concerning the Plan shall be final, conclusive, and binding on both Southern Company and the Participants. ARTICLE III 3.1 Eligibility. The Participants in the Plan shall be limited to Directors and to those Employees, as determined by the Committee, who have a significant impact on the long-term performance and success of Southern Company. Subject to the terms of the Plan, the Committee shall identify individuals eligible to become Participants in the Plan, select from time to time the Participants to whom Awards shall be granted and shall determine the number of Awards to be granted. ARTICLE IV 4.1 Awards. (a) General. Beginning January 1, 1998 and thereafter not more frequently than once each calendar year, the Committee shall determine the forms and amounts of Awards for Participants. All Awards shall be subject to the terms and conditions of the Plan and to such other terms and conditions consistent with the Plan as the Committee deems appropriate. Awards under the Plan need not be uniform and Awards under two (2) or more paragraphs may be combined in one Award Document. Any combination of Awards may be granted at one time and on more than one occasion to the same Participant. Such Awards may take the following forms, in the Committee's sole discretion: (b) Incentive Stock Options. These shall be stock options within the meaning of Section 422 of the Code to purchase Common Stock. In addition to other restrictions contained in the Plan, an Incentive Stock Option (1) shall not be exercised more than ten (10) years after the date it is granted, (2) shall not have an Option Price less than the Fair Market Value of Common Stock on the date the Incentive Stock Option is granted, (3) shall otherwise comply with Section 422 of the Code, (4) shall be granted only to Employees and (5) shall be designated as an "Incentive Stock Option" by the Committee. The aggregate Fair Market Value of Common Stock, determined at the time of each grant, for which any Optionee may vest in Incentive Stock Options under this Plan for any calendar year shall not exceed $100,000. (c) Nonqualified Stock Options. These shall be stock options to purchase Common Stock which are not designated by the Committee as "Incentive Stock Options." At the time of the grant, the Committee shall determine the Option exercise period, the Option Price, and such other conditions or restrictions on the exercise of the Nonqualified Stock Option as the Committee deems appropriate. In addition to other restrictions contained in the Plan, a Nonqualified Stock Option (1) shall not be exercised more than ten (10) years after the date it is granted, and (2) shall not have an Option Price less than 100% of the Fair Market Value of Common Stock on the date the Nonqualified Stock Option is granted. (d) Stock Appreciation Rights. These shall be rights that on exercise entitle the holder to receive the excess of (1) the Fair Market Value of Common Stock on the date of exercise over (2) its Base Value multiplied by (3) the number of SARs exercised. Such rights shall be satisfied in cash, stock, or a combination thereof, as determined by the Committee. Stock Appreciation Rights granted under the Plan may be granted in the sole discretion of the Committee in conjunction with an Incentive Stock Option or Nonqualified Stock Option under the Plan. The Committee may impose such conditions or restrictions on the exercise of SARs as it deems appropriate and may terminate, amend, or suspend such SARs at any time. SARs granted under this Plan shall not be exercised more than ten (10) years after the date of grant. (e) Restricted Stock. Restricted Stock shall be shares of Common Stock held by Southern Company for the benefit of a Participant without payment of consideration, except as otherwise may be determined by the Committee in its discretion, with restrictions or conditions upon the Participant's right to retain, transfer or sell such shares. The following provisions shall be applicable to Restricted Stock Awards: (1) Stock Power. Each certificate for Restricted Stock shall be registered in the name of the Participant and shall be deposited by him with Southern Company, together with a stock power endorsed in blank. (2) Restriction Period. At the time of making a Restricted Stock Award, the Committee shall establish the "Restriction Period" applicable thereto. Such Restriction Period may be up to ten (10) years as determined by the Committee. The Committee may provide for the annual lapse of restrictions with respect to a specified percentage of the Restricted Stock, provided the Participant satisfies all eligibility requirements at such time. (3) Dividends. The Participant shall be entitled to receive dividends during the Restriction Period and shall have the right to vote such Common Stock and all other shareholder's rights except the following: (i) the Participant shall not be entitled to delivery of the stock certificate during the Restriction Period, (ii) Southern Company shall retain custody of the Common Stock during the Restriction Period, and (iii) a breach of a restriction or a breach of the terms and conditions established by the Committee with respect to the Restricted Stock shall cause a forfeiture of the Restricted Stock. 4.2 Award Document. After the Committee determines the form and amount of a Participant's Award, it shall cause Southern Company to prepare an Award Document to be delivered to the Participant setting forth the form and amount of the Award and any conditions and restrictions on the Award imposed by the Plan and the Committee. 4.3 Exercise and Payment. The exercise of an Option shall be made only by a written notice delivered in person or by mail to the Secretary of Southern Company at Southern Company's principal executive office, specifying the number of shares of Common Stock to be purchased and accompanied by payment therefore and otherwise in accordance with the Award Document pursuant to which the Option was granted. The purchase price for any shares of Common Stock purchased pursuant to the exercise of an Option shall be paid, as determined by the Committee in its discretion and set forth in the Award Document at the time of grant, in either of the following forms (or any combination thereof): (i) cash or (ii) the transfer of shares of Common Stock with a Fair Market Value equal to the aggregate exercise price of the Option to Southern Company upon such terms and conditions as determined by the Committee. In addition, Options may be exercised through a registered broker-dealer pursuant to such cashless exercise procedures (other than the withholding of shares of Common Stock that would otherwise be acquired upon the exercise of such Option) which are, from time to time, deemed acceptable by the Committee, and the Committee may authorize that the purchase price payable upon exercise of an Option may be paid by having shares of Common Stock withheld that otherwise would be acquired upon such exercise. Any shares of Common Stock transferred to Southern Company (or withheld upon exercise) as payment of the purchase price under an Option shall be valued at their Fair Market Value on the day preceding the date of exercise of such Option. The Optionee shall deliver the Award Document evidencing the Option to the Secretary of Southern Company who shall endorse thereon a notation of such exercise and return such Award Document to the Optionee. No fractional shares of Common Stock (or cash in lieu thereof) shall be issued upon exercise of an Option and the number of shares of Common Stock that may be purchased upon exercise shall be rounded to the nearest number of whole shares of Common Stock. ARTICLE V 5.1 Termination of Service or Employment. A Participant whose service as a Director or whose employment terminates for reasons other than Retirement, Disability, or death shall, in the discretion of the Committee, have no right to receive any benefit or payment for existing Awards under the Plan. Any outstanding Award shall terminate on the Participant's Separation Date; provided, however, that the Committee or its designee, in its or his sole discretion, may permit the exercise of any outstanding Award after the Participant's Separation Date, at such time and in such manner as the Committee or such designee may determine, but in no event in the case of Incentive Stock Options shall such exercise be beyond the earlier of (a) three (3) months from the Participant's Separation Date or (b) the expiration date of the Award, to the extent exercisable on such Participant's Separation Date. 5.2 Death of a Participant. Unless otherwise provided in the Award Document, in the event of the death of a Participant prior to the exercise of all Incentive Stock Options, Nonqualified Stock Options, and Stock Appreciation Rights granted to such Participant, the administrator of the deceased Participant's estate, the executor under his will, or the person or persons to whom the Options or SARs shall have been validly transferred by such executor or administrator pursuant to the will or laws of intestate succession shall have the right, within thirty-six (36) months from the date of such Participant's death, but not beyond the expiration date of the Options or SARs, to exercise such Options or SARs to the extent exercisable on such Participant's Separation Date. 5.3 Retirement. (a) Incentive Stock Options. In the event of the termination of a Participant's employment as result of his Retirement prior to the exercise of all Incentive Stock Options granted to the Participant, such Participant shall have the right, within three (3) months of his Separation Date, but not beyond the expiration date of such Options, to exercise such Incentive Stock Options to the extent exercisable on his Separation Date. (b) Nonqualified Stock Options and SARs. Unless otherwise provided in the Award Document, in the event of the termination of a Participant's employment as a result of his Retirement prior to the exercise of all Nonqualified Stock Options or Stock Appreciation Rights granted to the Participant, such Participant shall have the right, within thirty-six (36) months of his Separation Date, but not beyond the expiration date of such Nonqualified Stock Options or SARs, to exercise such Nonqualified Stock Options or SARs to the extent exercisable on his Separation Date. 5.4 Disability. (a) Incentive Stock Options. In the event of the termination of a Participant's employment due to Disability prior to the exercise of all Incentive Stock Options granted to the Participant, such Participant or his legal representative shall have the right, within twelve (12) months of his Separation Date, but not beyond the expiration date of such Incentive Stock Options, to exercise such Incentive Stock Options to the extent exercisable on his Separation Date. (b) Nonqualified Stock Options and SARs. Unless otherwise provided in the Award Document, in the event of the termination of a Participant's employment due to Disability prior to the exercise of all Nonqualified Stock Options or Stock Appreciation Rights granted to the Participant, such Participant or his legal representative shall have the right, within thirty-six (36) months of his Separation Date, but not beyond the expiration date of such Nonqualified Stock Options or SARs, to exercise such Nonqualified Stock Options or SARs to the extent exercisable on his Separation Date. 5.5 Change in Control. (a) Subsidiary Change in Control. Notwithstanding any other provision of the Plan to the contrary, in the event of a Subsidiary Change in Control: (i) Any Options and Stock Appreciation Rights held by a Subsidiary Employee which are outstanding as of the date such Subsidiary Change in Control is determined to have occurred, and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Subsidiary Employee holding a Stock Appreciation Right who is actually subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable unless it shall have been outstanding for at least six months as of the date such Subsidiary Change in Control is determined to have occurred. (ii) The restrictions and deferral limitations applicable to any Restricted Stock held by a Subsidiary Employee shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (iii) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Subsidiary Employees shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (b) Southern Termination. Notwithstanding any other provision of the Plan to the contrary, in the event of a Southern Termination: (i) Any Options and Stock Appreciation Rights which are outstanding as of the date such Southern Termination is determined to have occurred, and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Participant holding a Stock Appreciation Right who is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to the Participant under Section 16(b), provided further, that any such actions not taken as a result of the rules under Section 16(b) shall be effected as of the first date that such activity would no longer result in liability under such section. (ii) The restrictions and deferral limitations applicable to any Restricted Stock shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (iii) The restrictions and deferral limitations and other conditions applicable to any other Awards under the Plan shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (iv) Any Options, Stock Appreciation Rights or Restricted Stock which are outstanding as of the date such Southern Termination is determined to have occurred, shall be converted into or replaced by options, stock appreciation rights or restricted stock, as the case may be, in the Surviving Company, or the corporation which has acquired all of Southern Company's Common Stock or assets. In the event of such conversion or replacement, the terms of the replacement options or stock appreciation rights shall preserve with respect to each Option and each SAR the spread between the Fair Market Value of the shares subject to the Options or SARs and the Option Price or Base Value, as the case may be, as determined immediately prior to the Southern Termination. Similarly, the terms of replacement restricted stock shall preserve the Fair Market Value of each share of Restricted Stock as determined immediately prior to the Southern Termination. No replacement option, stock appreciation right or share of restricted stock received shall be subject to any terms which are less favorable than those which existed with respect to the original Option, SAR or share of Restricted Stock immediately prior to the Southern Termination. (v) In the event that it is not possible to effect the conversion set forth in Section 5.5(b)(iv) hereof, any and all outstanding Options, Stock Appreciation Rights and Restricted Stock as of the date of the Southern Termination which are not so converted shall be terminated and the affected Participants shall receive within thirty (30) days of the Southern Termination cash equal to the difference between the Option Price and Fair Market Value, in the case of Options, the Base Value and Fair Market Value, in the case of SARs and equal to the Fair Market Value, in the case of Restricted Stock. For purposes of this Section 5.5(b)(v), Fair Market Value shall be determined as of the day prior to the date of the Southern Termination. ARTICLE VI 6.1 Limitation of Shares of Common Stock Available under the Plan. (a) Share Limit. The total number of shares of Common Stock available to be granted by the Committee as Awards to the Participants under the Plan shall not exceed 40,000,000 shares. Upon a change in capitalization, the maximum number of shares of Common Stock referred to in the preceding sentence shall be adjusted in number and kind pursuant to Section 7.1 hereof. (b) Share Reduction. The total number of shares available under Section 6.1(a) shall be reduced from time to time in the manner specified: (1) Incentive Stock Options and Nonqualified Stock Options. The grant of an Incentive Stock Option and Nonqualified Stock Option shall reduce the available shares by the number of shares subject to such Option. (2) Stock Appreciation Rights. The grant of Stock Appreciation Rights shall reduce the available shares by the number of SARs granted; provided, however, if SARs are granted in conjunction with an Option and the exercise of such Option would cancel the SARs and vice versa, then the grant of the SARs will only reduce the amount available by the excess, if any, of the number of SARs granted over the number of shares subject to the related Option. (3) Restricted Stock. The grant of Restricted Stock shall reduce the available shares by the number of shares of Restricted Stock granted. (c) Share Increase. The total number of shares available under Section 6.1(a) shall be increased from time to time in the manner specified: (1) Incentive Stock Options and Nonqualified Stock Options. The lapse or cancellation of an Incentive Stock Option or Nonqualified Stock Option shall increase the available shares by the number of shares released from such Option; provided, however, in the event the cancellation of an Option is due to the exercise of SARs related to such Option, the cancellation of such Option shall only increase the amount available by the excess, if any, of the number of shares released from such Option over the number of SARs exercised. (2) Stock Appreciation Rights. The lapse or cancellation of Stock Appreciation Rights shall increase the available shares by the number of SARs which lapse or are canceled; provided, however, in the event the cancellation of such SARs is due to the exercise of an Option related to such SARs, the cancellation of such SARs shall only increase the available shares by the excess, if any, of the number of SARs canceled over the number of shares delivered on the exercise of such Option. (3) Restricted Shares. The reversion of Restricted Stock to Southern Company due to the breach or occurrence of a restriction or failure to satisfy a condition on such shares shall increase the available shares by the number of shares of Restricted Stock reverted. 6.2 Maximum Shares to Participant. The maximum number of shares of Common Stock which may be the subject of Awards to a Participant during any calendar year during the term of the Plan shall be 1,000,000. ARTICLE VII 7.1 Adjustment Upon Changes in Capitalization. The total number of shares of Common Stock available for Awards under the Plan or allocable to any individual Participant, the number of shares of Common Stock subject to outstanding Options, the exercise price for such Options, the number of outstanding SARs, the Base Value of such SARs and the Award limit set forth in subsection 6.2 shall be appropriately adjusted by the Committee in the event of any increase or decrease in the number of outstanding shares of Common Stock resulting from any change in Southern Company's capital structure, including but not limited to any stock dividend, subdivision or combination of shares, or reclassification. 7.2 Merger, Consolidation or Tender Offer. In the event of a merger or consolidation of Southern Company or a tender offer for shares of Common Stock, or in anticipation of such merger, consolidation, or tender offer, the Committee may make such adjustments with respect to Awards under the Plan and take such other action as it deems necessary or appropriate to reflect such merger, consolidation, or tender offer, including without limitation the substitution of new Awards, the termination or adjustment of outstanding Awards, the acceleration of Awards, or the removal of limitations or restrictions on outstanding Awards. ARTICLE VIII 8.1 Withholding Taxes. Southern Company or the Employing Company, as the case may be, of the Participant shall deduct from all payments and distributions in cash under the Plan any taxes required to be withheld for federal, state, or local governments. In the event distributions are made in shares of Common Stock, Southern Company shall retain the value of sufficient shares to equal the amount of the tax required to be withheld in respect of such distributions. 8.2 Service or Employment. The establishment of the Plan and Awards hereunder shall not be construed as conferring on any Participant any right to continued service or employment, and the service or employment of any Participant may be terminated without regard to the effect which such action might have upon him or her as a Participant. 8.3 Non-Alienation of Benefits. Except as otherwise provided in Section 8.5 hereof, or as may otherwise be provided in the Participant's Award Document with respect to Awards other than Incentive Stock Options, and other than as specifically provided with regard to the death of a Participant, no benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, excluding the use of Options under this Plan as collateral in exercising such Options. Any attempt to do so shall be null and void. No such benefits shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the debts, contracts, liabilities, engagement, or torts of the Participant. 8.4 Non-Alienation of Election or Exercise Rights. Except as otherwise provided in Section 8.5 hereof, or as may otherwise be provided in the Participant's Award Document with respect to Awards other than Incentive Stock Options, no election as to benefits or exercise of Options, Stock Appreciation Rights, or other rights may be made during a Participant's lifetime by anyone other than the Participant. 8.5 Transfer of Awards (Other Than ISOs) to Revocable Trust. Awards other than Incentive Stock Options may be transferred by a Participant to a revocable trust under circumstances where the grantor Participant is the trustee or co-trustee of such revocable trust and the trust beneficiaries are limited to the grantor Participant and, in the event of the Participant's death, the grantor's spouse, lineal descendants and lineal ancestors. Powers of the non-Participant co-trustee must be limited to the exercise of the Awards held by the trust in the event of the Participant's death or incapacity. Written notice of the Participant's intent to transfer Awards under this Section 8.5 must be delivered to the Vice President of Human Resources of Southern Company Services, Inc. prior to such transfer. 8.6 Amendment, Modification, and Termination of the Plan. Except for the provisions of Section 5.5 hereof, which cannot be amended, modified or terminated following a Subsidiary Change in Control or a Southern Termination, the Board of Directors, at any time, may terminate and in any respect amend or modify the Plan; provided, however, that no such action by the Board of Directors, without approval of Southern Company's shareholders, may increase the total number of shares of Common Stock available under the Plan; and further provided that, except as provided in Section 7.2, no amendment, modification, or termination of the Plan shall in any manner adversely affect the rights of any Participant under the Plan without the consent of such Participant. 8.7 Indemnification. Each person who is or shall have been a member of the Committee or of the Board of Directors shall be indemnified and held harmless by Southern Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit, or proceeding to which he may be a party or in which he may be involved by reason of any action or failure to act under the Plan and against and from any and all amounts paid by him in satisfaction of judgment in any such action, suit, or proceeding against him. Such person shall give Southern Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under Southern Company's Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that Southern Company may have to indemnify them or hold them harmless. 8.8 Reliance on Reports. Each member of the Committee and each member of the Board of Directors shall be fully justified in relying or acting in good faith upon any report made by the independent public accountants of Southern Company and any Employing Company and upon any other information furnished in connection with the Plan by any person or persons other than himself. In no event shall any person who is or shall have been a member of the Committee or the Board of Directors be liable for any determination made or other action taken or any omission to act in reliance upon any such report or information or for any action taken, including the furnishing of information, or failure to act, if in good faith. 8.9 Governing Law. To the extent that federal law shall not be held to have preempted local law, this Plan shall be governed by the laws of the State of Delaware. If any provision of the Plan shall be held invalid or unenforceable, the remaining provisions hereof shall continue in full force and effect. 8.10 Term. The Plan shall remain in effect for ten (10) years from the Effective Date or until terminated by the Board of Directors, whichever occurs first. 8.11 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Southern Termination transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Southern Termination transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Southern Termination transaction to be ineligible for Pooling Accounting shall automatically be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Southern Termination transaction and Pooling Accounting is in fact used for such Southern Termination transaction. IN WITNESS WHEREOF, Southern Company has caused the Southern Company Performance Stock Plan, as amended and restated, to be executed by its duly authorized officers pursuant to resolutions of the Board of Directors as of the ______day of ___________1999, to be effective January 1, 1998. SOUTHERN COMPANY By:___________________________________ A. W. Dahlberg President Attest: By:____________________________ Tommy Chisholm Secretary [CORPORATE SEAL] EX-10.A.74 12 EXHIBIT 10(a)74 FIRST AMENDMENT TO THE SOUTHERN COMPANY SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN WHEREAS, effective as of January 1, 1997, Southern Company Services, Inc. ("Company") established The Southern Company Supplemental Executive Retirement Plan ("Plan") to provide deferred compensation benefits primarily for a select group of management or highly compensated employees which are not otherwise payable under The Southern Company Pension Plan as a result of the exclusion of incentive pay from the definition of earnings set forth under such Plan; and WHEREAS, the Company, through its Board of Directors, has reserved unto itself the authority to amend the Plan at any time; and WHEREAS, the Company wishes to provide for the withholding of the Hospital Insurance portion of the tax due under the Federal Insurance Contributions Act from payments made under the Plan; and WHEREAS, the Company desires to make certain other clarifying technical and miscellaneous changes. Accordingly, The Southern Company Supplemental Executive Retirement Plan is hereby amended in the following particulars, to be effective as of even date herewith: 1. Amend Section 2.15 of the Plan by deleting said Section in its entirety and substituting the following in lieu thereof: 2.15 "Supplemental Pension Benefit" shall mean the pension benefit, if any, that is payable to a Participant under a group and/or individual supplemental benefit plan of an Affiliated Employer (as such term is defined therein). 2. Amend Section 5.1(a)(1) of the Plan by deleting said Section in its entirety and substituting the following in lieu thereof: (1) 1.70% (1.0% if subject to Article XV of the Pension Plan) of the Participant's Average Monthly Earnings multiplied by his years (and fraction of a year) of Accredited Service to his Retirement Date, death or other termination of service, including a Social Security Offset, as adjusted, if necessary, under the terms of the Pension Plan for commencement prior to the Participant's Normal Retirement Date; less 3. Amend Section 5.2 of the Plan by deleting said Section in its entirety and substituting the following in lieu thereof: 5.2 Distribution of Benefits. (a) The SERP Benefit, as determined in accordance with Section 5.1, shall be payable in monthly increments on the first day of the month concurrently with the Participant's Retirement Income under the Pension Plan. The form in which the SERP Benefit is paid will be the same as elected by the Participant under the Pension Plan except that the amount of the monthly benefit will be modified at the appropriate time based on the commencement of payments as follows. Payments shall be adjusted to include three components: (1) The amount necessary to pay the Hospital Insurance portion of the tax due under the Federal Insurance Contributions Act with respect to the accrued SERP Benefit determined upon retirement (or such other appropriate "resolution date" as defined under Treasury Regulation Section 31.3121(v)-2) calculated in accordance with Section 5.1; (2) The amount estimated to pay the federal and state income tax withholding liability due on the amount paid under paragraph (1) above; and (3) An adjusted monthly benefit determined on an actuarially equivalent basis in accordance with the terms of the Pension Plan which takes into account the amounts paid under paragraph (1) and (2) above and taking into account the form of benefit elected by the Participant under the Pension Plan. Upon adjustment, the remaining monthly payments shall equal the amount described in paragraph (3) above. The Beneficiary of a Participant's Pension Benefit shall be the same as the Provisional Payee, if any, of the Participant's Retirement Income under the Pension Plan. 4. Effective July 1, 1998, the Plan shall include an Appendix A setting forth the Affiliated Employers as such term is defined therein as follows: APPENDIX A THE SOUTHERN COMPANY SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AFFILIATED COMPANIES AS OF JULY 1, 1998 Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Nuclear Operating Company, Inc. 5. All parts of the Plan not inconsistent herewith are hereby ratified and affirmed. IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized officer of Southern Company Services, Inc. pursuant to resolutions of the Board of Directors of the Company this ____ day of _______________________, 1998. SOUTHERN COMPANY SERVICES, INC. By: Christopher C. Womack Senior Vice President, Human Resources ATTEST: By: Its: SECOND AMENDMENT TO THE SOUTHERN COMPANY SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN WHEREAS, effective as of January 1, 1997, Southern Company Services, Inc. ("Company") established The Southern Company Supplemental Executive Retirement Plan ("Plan") to provide deferred compensation benefits primarily for a select group of management or highly compensated employees which are not otherwise payable under The Southern Company Pension Plan as a result of the exclusion of incentive pay from the definition of earnings set forth under such Plan; and WHEREAS, the Company, through its Board of Directors, has reserved unto itself the authority to amend the Plan at any time and approve participation in the Plan by subsidiaries of The Southern Company; and WHEREAS, the Company desires to permit Southern Energy Resources, Inc. to become an Affiliated Employer under the terms of the Plan. Accordingly, the Plan is hereby amended in the following particulars, to be effective as set forth below: 1. Effective June 25, 1998, amend Appendix A of the Plan adding thereto Southern Energy Resources, Inc. as an Affiliated Employer. 2. All parts of the Plan not inconsistent herewith are hereby ratified and affirmed. IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized officer of Southern Company Services, Inc. pursuant to resolutions of the Board of Directors of the Company this ____ day of _______________________, 1998. SOUTHERN COMPANY SERVICES, INC. By: Christopher C. Womack Senior Vice President, Human Resources ATTEST: By: Its: EX-10.A.76 13 EXHIBIT 10(a)76 FIRST AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997, and WHEREAS, the Performance Sharing Plan Committee ("Committee") desires to amend the Plan in order to make certain design and other changes; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan; NOW, THEREFORE, the Committee hereby amends the Plan as follows: I. Effective as of January 1, 1997, Section 2.12 shall be amended by deleting the first paragraph of such Section in its entirety and substituting a new paragraph as follows: 2.12 "Compensation" shall mean the base salary or wages paid to a Participant by an Affiliated Employer for the Plan Year during which he is eligible to participate, including all amounts contributed by an Affiliated Employer to The Southern Company Employee Savings Plan and/or The Southern Company Flexible Benefits Plan on behalf of a Participant pursuant to a salary reduction arrangement under such plans. Compensation shall also include all awards under any incentive pay plans sponsored by an Affiliated Employer as shall be determined by the Committee from time to time and set forth in Appendix B attached hereto, monthly shift and monthly seven-day schedule differentials, scheduled shift pay, geographic premiums, monthly nuclear plant premiums, and monthly customer service premiums. Compensation shall exclude regular overtime pay, any hourly shift differentials, substitution pay, such amounts which are reimbursements to a Participant paid by any Affiliated Employer including, but not limited to, reimbursement for such items as moving expenses and travel and entertainment expenses, and imputed income for automobile expenses, tax preparation expenses and health and life insurance premiums paid by the Affiliated Employer. II. Effective as of January 1, 1997, Section 2.28 shall be amended by deleting such section its entirety and substituting a new Section 2.28 as follows: 2.28 "Highly Compensated Employee" shall mean (in accordance with and subject to Code Section 414(q) and any regulations, rulings, notices or procedures thereunder), with respect to any Plan Year: (1) any Employee who was a five percent (5%) or greater owner during the Plan Year or the immediately preceding Plan Year, or (2) any Employee who earned more than $80,000 in the preceding Plan Year. The $80,000 amount shall be adjusted for inflation and for short Plan Years, pursuant to Code Section 414(q). The Employer may, at its election, limit Employees earning $80,000 or more to only those Employees who fall within the "top-paid group," as defined in Code Section 414(q) excluding those employees described in Code Section 414(q)(8) for such purpose. In determining whether an Employee is a Highly Compensated Employee, the Committee may make any elections authorized under applicable regulations, rulings, notices, or procedures. III. Effective as of the date hereof, Article III shall be amended to add a new Section 3.6 as follows: 3.6 Former Commonwealth Edison of Indiana Employees. Effective January 1, 1998, notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of Commonwealth Edison of Indiana ("ComEd") who was employed by Southern Energy, Inc. as set forth on a schedule of employees acknowledged by the Committee: (a) shall become a Participant as of January 1, 1998; and (b) shall be entitled for vesting purposes hereunder to years of vesting service accrued under the Commonwealth Edison Company of Indiana Service Annuity System Plan after January 1, 1997, in addition to any Years of Service accrued under this Plan. IV. Effective as of January 1, 1997, Section 5.1(c) shall be amended by deleting such section in its entirety and substituting a new Section 5.1(c) as follows: For purposes of this Section 5.1, whenever the term "compensation" is used, such term shall mean "compensation" within the meaning of Code Section 415(c)(3) and any rulings or regulations thereunder. V. Effective as of January 1, 1998, Sections 9.1, 9.2, 9.5, and 9.11 shall be amended by replacing each reference therein to "$3,500" with a reference to "$5,000". VI. Effective as of January 1, 1997, Section 14.2 is amended to add the following sentence to the end of the first paragraph: In addition, a Participant's benefits may be offset pursuant to a judgment, order, or decree issued (or settlement agreement entered into) on or after August 5, 1997, if and to the extent that such offset is permissible or required under Code Section 401(a)(13). VII. Except as amended herein by this First Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc. through the duly authorized members of the Performance Sharing Plan Committee has adopted this First Amendment to The Southern Company Performance Sharing Plan this ____ day of _________________________, 1998 to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE APPENDIX B - INCENTIVE PAY PLANS Effective as of January 1, 1997, all awards under the following incentive pay plans shall be counted as compensation for purposes of Section 2.12 of the Plan: The Southern Company Performance Pay Plan The Southern Company Productivity Improvement Plan The Southern Company Executive Productivity Improvement Plan Incentive Compensation Plan for Southern Energy, Inc. Georgia Power Company 1998 Customer Partnership Teams Incentive Plan Georgia Power Company 1998 Residential Customer Partnership Team Incentive Plan Georgia Power Company 1998 Northwest Region Residential Sales Team Incentive Plan Georgia Power Company Customer Choice Group 1998 Compensation Plan Georgia Power Company Olympic Project Management Group 1998 Short Term Incentive Plan Southern Company National Accounts 1998 Incentive Plan Southern Communications Performance Improvement Plan (PIP) Southern Communications Performance Pay Plan (PPP) Southern Company Energy Solutions, Inc. 1998 Officer and Staff Incentive Compensation Plan SECOND AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997, and WHEREAS, the Performance Sharing Plan Committee ("Committee") previously amended the Plan and desires again to amend the Plan in order to make certain clarifying and design changes; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan; NOW, THEREFORE, the Committee hereby amends the Plan as follows: I. Effective as of January 1, 1997, Section 2.12 shall be amended by deleting the first paragraph of such Section in its entirety and substituting a new paragraph as follows: 2.12 "Compensation" shall mean the base salary or wages paid to a Participant by an Affiliated Employer for the Plan Year during which he is eligible to participate, including all amounts contributed by an Affiliated Employer to The Southern Company Employee Savings Plan and/or The Southern Company Flexible Benefits Plan on behalf of a Participant pursuant to a salary reduction arrangement under such plans. Compensation shall also include all awards under any incentive pay plans sponsored by an Affiliated Employer as shall be determined by the Committee from time to time and set forth in Appendix B attached hereto, monthly shift and monthly seven-day schedule differentials, scheduled shift pay, geographic premiums, monthly nuclear plant premiums, monthly customer service premiums, and all awards under the incentive pay plans sponsored by Southern Energy, Inc. (or Southern Energy Resources, Inc.) provided that such awards do not exceed the maximum annual award of such Participant for the Plan Year under the Southern Energy, Inc. Short Term Incentive Plan. Compensation shall exclude regular overtime pay, any hourly shift differentials, substitution pay, such amounts which are reimbursements to a Participant paid by any Affiliated Employer including, but not limited to, reimbursement for such items as moving expenses and travel and entertainment expenses, and imputed income for automobile expenses, tax preparation expenses and health and life insurance premiums paid by the Affiliated Employer. II. Effective as of January 1, 1997, Section 2.19 shall be amended by deleting subsection (y) of such Section in its entirety and substituting a new subsection (y) as follows: (y) any individual or Employee who is classified by the Employing Company as a temporary employee (who was not a participant in the pension plan of an Employing Company before July 1, 1991 (or July 1, 1990 for employees of Georgia Power Company)) or an independent contractor, regardless of whether such classification is in error, or III. Effective as provided therein, Appendix A and Appendix B shall be modified in the forms attached hereto. IV. Except as amended herein by this Second Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc. through the duly authorized members of the Performance Sharing Plan Committee has adopted this Second Amendment to The Southern Company Performance Sharing Plan this ____ day of _________________________, 1998 to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE APPENDIX A - EMPLOYING COMPANIES The Employing Companies as of January 1, 1998 are: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Energy Solutions, Inc. Southern Nuclear Operating Company, Inc. APPENDIX B - INCENTIVE PAY PLANS Effective as of January 1, 1997, all awards under the following incentive pay plans shall be counted as compensation for purposes of Section 2.12 of the Plan: The Southern Company Performance Pay Plan The Southern Company Productivity Improvement Plan The Southern Company Executive Productivity Improvement Plan Georgia Power Company 1998 Customer Partnership Teams Incentive Plan Georgia Power Company 1998 Residential Customer Partnership Team Incentive Plan Georgia Power Company 1998 Northwest Region Residential Sales Team Incentive Plan Georgia Power Company Customer Choice Group 1998 Compensation Plan Georgia Power Company Olympic Project Management Group 1998 Short Term Incentive Plan Southern Company National Accounts 1998 Incentive Plan Southern Communications Performance Improvement Plan (PIP) Southern Communications Performance Pay Plan (PPP) Southern Company Energy Solutions, Inc. 1998 Officer and Staff Incentive Compensation Plan THIRD AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Performance Sharing Plan Committee ("Committee") previously amended the Plan on two separate occasions and desires to amend the Plan again in order to (i) clarify the definition of "Compensation" under the Plan; (ii) clarify the grant of prior service credit under the Plan to certain employees formerly employed by Commonwealth Edison of Indiana; (iii) discontinue, effective September 1, 1998, eligibility under the Plan for employees classified as temporary employees; (iv) reflect the corporate name change of certain Employing Companies; and (v) clarify distribution requirements with respect to alternate payees; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows: I. Effective as of January 1, 1998, Section 2.12 shall be amended by deleting the first paragraph of such Section in its entirety and substituting a new paragraph as follows: 2.12 "Compensation" shall mean the base salary or wages paid to a Participant by an Affiliated Employer for the Plan Year during which he is eligible to participate, including all amounts contributed by an Affiliated Employer to The Southern Company Employee Savings Plan and/or The Southern Company Flexible Benefits Plan on behalf of a Participant pursuant to a salary reduction arrangement under such plans. Compensation shall also include all awards under any incentive pay plans sponsored by an Affiliated Employer as shall be determined by the Committee from time to time and set forth in Appendix B attached hereto, monthly shift and monthly seven-day schedule differentials, scheduled shift pay, geographic premiums, monthly nuclear plant premiums, monthly customer service premiums, all awards under the incentive pay plans sponsored by Southern Energy, Inc. (or Southern Energy Resources, Inc.) provided that such awards do not exceed the maximum annual award of such Participant for the Plan Year under the Southern Energy, Inc. Short Term Incentive Plan and, effective January 1, 1998, sales commissions paid under a sales commission payment program sponsored by an Affiliated Employer for sales commissioned based employees. Compensation shall exclude regular overtime pay, any hourly shift differentials, substitution pay, such amounts which are reimbursements to a Participant paid by any Affiliated Employer including, but not limited to, reimbursement for such items as moving expenses and travel and entertainment expenses, and imputed income for automobile expenses, tax preparation expenses and health and life insurance premiums paid by the Affiliated Employer. II. Effective September 1, 1998, Section 2.19 of the Plan, as amended by the Second Amendment to the Plan, is further amended by deleting the first paragraph of such Section and substituting the following in lieu thereof: 2.19 "Eligible Employee" shall mean an Employee who is employed by an Employing Company and who is classified by the Employing Company as a regular full-time, regular part-time or cooperative education employee who: III. Effective September 1, 1998, Section 2.19 is further amended by deleting subsection (y) of such Section in its entirety and substituting a new subsection (y) as follows: (y) any individual or Employee who is classified by the Employing Company as a temporary employee or as an independent contractor, regardless of prior inclusion under the Plan or whether such classification is determined to be in error; or IV. Effective January 1, 1998, Section 3.6 of the Plan, as added by the First Amendment to the Plan, is amended by deleting such Section in its entirety and substituting the following in lieu thereof: 3.6 Former Commonwealth Edison of Indiana Employees. Effective January 1, 1998, notwithstanding any other provision of the Plan to the contrary, any former employee of Commonwealth Edison of Indiana ("ComEd") who was employed by Southern Energy Resources, Inc. on or before December 31, 1997 and is set forth on a schedule of employees acknowledged by the Committee, shall become a Participant as of January 1, 1998 and shall be entitled for vesting purposes hereunder to years of vesting service accrued under the Commonwealth Edison Company of Indiana Service Annuity System Plan ("ComEd Plan") on or after January 1, 1997, in addition to any Years of Service accrued under this Plan. In addition, any former employee of ComEd who becomes employed by Southern Energy Resources, Inc. on or after January 1, 1998 but prior to April 1, 1998 (hereafter "Date of Employment") and is set forth on the schedule of employees acknowledged by the Committee, shall become a Participant as of the Enrollment Date coincident with or next following such employee's Date of Employment, and shall be entitled for vesting purposes hereunder to years of vesting service accrued under the ComEd Plan on or after January 1, 1997, in addition to any Years of Service accrued under this Plan. V. Section 9.9 of the Plan is hereby amended by deleting such Section in its entirety and substituting the following in lieu thereof: 9.9 Distributions to Alternate Payees. If the Participant's Account under the Plan shall become subject to a domestic relations order which (a) is a qualified domestic relations order satisfying the requirements of Section 414(p) of the Code and (b) requires the distribution in a single lump sum of the entire portion of the Participant's Account required to be segregated for the benefit of an alternate payee, then the entire interest of such alternate payee shall be distributed in a single lump sum within ninety (90) days following the later of: (a) the Employing Company's determination that such domestic relations order is qualified in accordance with Section 414(p) of the Code; and (b) such Participant's Account becoming fully vested in accordance with Article VIII, or as soon as practicable thereafter. Such distribution to an alternate payee shall be made even if the Participant has not separated from the service of the Affiliated Employers. Any other distribution pursuant to a qualified domestic relations order shall not be made earlier than the later of: (a) the Participant's termination of service, or his attainment of age fifty (50), if earlier, and (b) such Participant's Account becoming fully vested in accordance with Article VIII. In no event shall a distribution to an alternate payee commence later than the date the Participant's (or his Beneficiary's) benefit payments otherwise commence. Such distribution to an alternate payee shall be made only in a manner permitted under this Article IX. VI. Appendix A of the Plan is amended by deleting such Appendix in its entirety and substituting the following in lieu thereof: APPENDIX A - EMPLOYING COMPANIES The Employing Companies as of January 1, 1998 are: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. VII. Except as amended herein by this Third Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Performance Sharing Plan Committee, has adopted this Third Amendment to The Southern Company Performance Sharing Plan this ____ day of _______, 1998 to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE Christopher C. Womack Robert A. Bell W. Dean Hudson FOURTH AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Performance Sharing Plan Committee ("Committee") desires to amend the Plan in order to make certain design and other changes; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective as of the date hereof, Article III of the Plan shall be amended by adding a new Section 3.7 thereto as follows: 3.7 Former Commonwealth Energy System Employees. Notwithstanding any other provision of the Plan to the contrary, with respect to a former employee of the Commonwealth Energy System ("ComElectric") who is employed by Southern Energy Resources, Inc. and is set forth on a schedule of employees acknowledged by the Committee, such employee shall become a Participant as of the Enrollment Date coincident with or next following such employee's date of employment, and shall be entitled, for vesting purposes hereunder, to years of vesting service accrued under the Pension Plan for Employees of Commonwealth Energy System and Subsidiary Companies ("ComElectric Plan") on or after January 1, 1997, in addition to any Years of Service accrued under this Plan. II. Except as amended herein by this Fourth Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Performance Sharing Committee, has adopted this Fourth Amendment to The Southern Company Performance Sharing Plan this _____ day of ________________, 1998, to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE: ----------------------------- Christopher C. Womack -------------------------------------------------------------- Robert A. Bell -------------------------------------------------------------- W. Dean Hudson FIFTH AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Performance Sharing Plan Committee ("Committee") desires to amend the Plan to modify the definition of Compensation for appliance salespersons to include certain nonproductive pay earnings types as may be determined from time to time by the Committee; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective as of January 1, 1998, Section 2.12 of the Plan (as previously amended by the Third Amendment) shall be amended by replacing the period at the end of the second sentence with a comma, and by adding the following to the end of said second sentence: , and, for appliance salespersons, certain nonproductive pay earnings types as determined from time to time by the Committee and set forth on Appendix C to the Plan, which Appendix may be updated from time to time. II. Except as amended herein by this Fifth Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Performance Sharing Committee, has adopted this Fifth Amendment to The Southern Company Performance Sharing Plan this _____ day of ________________, 1999, to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE: -------------------------------------------------------------- Christopher C. Womack -------------------------------------------------------------- Robert A. Bell -------------------------------------------------------------- W. Dean Hudson APPENDIX C Nonproductive Pay Earnings Types Earnings Code Earnings Description 003 Salesperson - Hourly 092 Holiday Taken 093 Meetings 095 Meetings - Safety 096 Disability 100% 100 Disability Extended Approval 106 Leave - Death 108 Occupational Injury 111 Jury Duty 112 Training 113 Safety Training 115 Vacation 116 Vacation Special Circumstances 117 Vacation FMLA Employee 118 Vacation FMLA Family Care 119 Time Off With Pay 125 Holiday Banked - Taken 127 Vacation In Lieu Of Disability 442 DISABILITY FMLA EMPLOYEE SIXTH AMENDMENT TO THE SOUTHERN COMPANY PERFORMANCE SHARING PLAN WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted The Southern Company Performance Sharing Plan ("Plan"), effective as of January 1, 1997; and WHEREAS, the Performance Sharing Plan Committee ("Committee") desires to amend the Plan in order to make a technical change; and WHEREAS, the Committee is authorized pursuant to Section 12.1 of the Plan to amend the Plan at any time, provided that the amendment does not involve a substantial increase in cost to any Employing Company or is necessary or desirable to comply with the laws and regulations applicable to the Plan. NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be effective as provided herein: I. Effective as of January 1, 1997, Subsection (w) of Section 2.19 of the Plan shall be amended as follows: (w) an Employee who is treated as such solely by reason of the "leased employee" rules of Code Section 414(n) such that, pursuant to an agreement between an Employing Company and any other person, such individual has performed services for the Employing Company (or the Employing Company and related persons as described in Code Section 414(n)(6)) on a substantially full-time basis for a period of at least one year and such services were performed under the primary direction or control of the Employing Company; II. Except as amended herein by this Sixth Amendment, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly authorized members of the Performance Sharing Plan Committee, has adopted this Sixth Amendment to The Southern Company Performance Sharing Plan this _____ day of ________________, 1999, to be effective as stated herein. PERFORMANCE SHARING PLAN COMMITTEE: -------------------------------------------------------------- Christopher C. Womack -------------------------------------------------------------- Robert A. Bell -------------------------------------------------------------- W. Dean Hudson EX-10.A.77 14 EXHIBIT 10(a)77 THE SOUTHERN COMPANY SUPPLEMENTAL BENEFIT PLAN (Amended and Restated Effective as of January 1, 1998) THE SOUTHERN COMPANY SUPPLEMENTAL BENEFIT PLAN Page ARTICLE I -PURPOSE AND ADOPTION OF PLAN..........................1 1.1 Adoption.....................................................1 1.2 Purpose......................................................2 ARTICLE II - DEFINITIONS.........................................3 2.1 Account......................................................3 2.2 Beneficiary..................................................3 2.3 Board of Directors...........................................3 2.4 Code 3 2.5 Common Stock.................................................3 2.6 Company......................................................3 2.7 Deferred Compensation Plan...................................3 2.8 Effective Date...............................................3 2.9 Employee.....................................................3 2.10 Employing Company...........................................4 2.11 ESOP........................................................4 2.12 Non-Pension Benefit.........................................4 2.13 Participant.................................................4 2.14 Pension Benefit.............................................4 2.15 Pension Plan................................................4 2.16 Performance Sharing Plan....................................4 2.17 Phantom Common Stock........................................4 2.18 Plan........................................................5 2.19 Plan Year...................................................5 2.20 Purchase Price..............................................5 2.21 Retirement Board............................................5 2.22 Sales Price.................................................5 2.23 Savings Plan................................................5 2.24 Valuation Date..............................................5 ARTICLE III - ADMINISTRATION OF PLAN.............................7 3.1 Administrator................................................7 3.2 Powers.......................................................7 3.3 Duties of the Retirement Board...............................7 3.4 Indemnification..............................................8 ARTICLE IV - ELIGIBILITY........................................10 4.1 Eligibility Requirements....................................10 4.2 Determination of Eligibility................................10 4.3 Eligibility of Employees of Savannah Electric and Power Company...............................................11 ARTICLE V - BENEFITS............................................12 5.1 Pension Benefit.............................................12 5.2 Non-Pension Benefit.........................................12 5.3 Distribution of Benefits....................................15 5.4 Allocation of Pension Benefit Liability.....................18 5.5 Funding of Benefits.........................................19 5.6 Withholding.................................................19 ARTICLE VI - MISCELLANEOUS......................................20 6.1 Assignment..................................................20 6.2 Amendment and Termination...................................20 6.3 No Guarantee of Employment..................................20 6.4 Construction................................................21 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, 1998 and hereinafter set forth (the "Plan"), is a modification and continuation of the Supplemental Benefit Plan for Southern Company Services, Inc. and Southern Electric International, Inc., which originally became effective January 1, 1983, and which has been amended from time to time. .........Effective January 1, 1998, the following other plans are merged into the Plan: o Supplemental Benefit Plan for Alabama Power Company o Supplemental Benefit Plan for Georgia Power Company o Supplemental Benefit Plan for Gulf Power Company o Supplemental Benefit Plan for Mississippi Power Company o Supplemental Benefit Plan for Southern Company Services, Inc. and Southern Electric International, Inc., as adopted by Southern Communications Services, Inc. o Supplemental Benefit Plan for Southern Company Services, Inc. and Southern Electric International, Inc., as adopted by Southern Development and Investment Group, Inc. o 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 shall become 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 benefits of former Employees are payable in accordance with the provisions of the prior plans. 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 by the Employing Companies (1) under The Southern Company Pension Plan, The Southern Company Employee Savings Plan, The Southern Company Employee Stock Ownership Plan and The Southern Company Performance Sharing Plan, as a result of the limitations set forth under Sections 401(a)(17), 401(k), 401(m), 402(g), or 415 of the Internal Revenue Code of 1986, as amended from time to time; and (2) to compensate for lost benefits resulting from participation in The Southern Company Deferred Compensation Plan, as amended from time to time. The Plan shall be an unfunded deferred compensation arrangement whose benefits shall be paid solely from the general assets of the Employing Companies. 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 5.2. 2.2......"Beneficiary" shall mean any person, estate, trust, or organization entitled to receive any payment under the Plan upon the death of a Participant. 2.3......"Board of Directors" shall mean the Board of Directors of the Company. 2.4......"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. 2.5......"Common Stock" shall mean common stock of The Southern Company. 2.6......"Company" shall mean Southern Company Services, Inc. 2.7......"Deferred Compensation Plan" shall mean The Southern Company Deferred Compensation Plan, as amended from time to time. 2.8......"Effective Date" of this amendment and restatement and the consolidation of plans shall mean January 1, 1998. 2.9......"Employee" shall mean any person who is currently employed by an Employing Company. 2.10....."Employing Company" shall mean the Company and any affiliate or subsidiary of The 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. 2.11....."ESOP" shall mean The Southern Company Employee Stock Ownership Plan, as amended from time to time. 2.12....."Non-Pension Benefit" shall mean the benefit described in Section 5.2. 2.13....."Participant" shall mean an Employee or former Employee of an Employing Company who is eligible to participate in the Plan pursuant to Sections 4.1 and 4.2. 2.14....."Pension Benefit" shall mean the benefit described in Section 5.1. 2.15....."Pension Plan" shall mean The Southern Company Pension Plan, as amended from time to time. 2.16....."Performance Sharing Plan" shall mean The Southern Company Performance Sharing Plan, as amended from time to time. 2.17....."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, the ESOP and/or the Performance Sharing Plan, as the case may be. 2.18....."Plan" shall mean The Southern Company Supplemental Benefit Plan, as amended from time to time. 2.19....."Plan Year" shall mean the calendar year. 2.20....."Purchase Price" shall mean for purposes of deemed purchases of Phantom Common Stock the following: (a) with respect to the Savings Plan and the Performance Sharing Plan, the weighted average 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, 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. 2.21....."Retirement Board" shall mean the Retirement Board of the Pension Plan. 2.22....."Sales Price" shall mean the weighted average sales price of a share of Common Stock under the Savings Plan as of each applicable Valuation Date. 2.23....."Savings Plan" shall mean The Southern Company Employee Savings Plan, as amended from time to time. 2.24....."Valuation Date" shall mean each business day of the New York Stock Exchange. Where the context requires, the definitions of all terms set forth in the Pension Plan, the ESOP, the Performance Sharing Plan, 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. The general administration of the Plan shall be placed in the Retirement Board. 3.2......Powers. The Retirement Board 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. It 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, and shall be the agent for the service of process. 3.3......Duties of the Retirement Board. .........(a) The Retirement Board is responsible for the daily administration of the Plan. It may appoint other persons or entities to perform any of its fiduciary functions. The Retirement Board 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 Retirement Board 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 Retirement Board 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 Retirement Board. .........(c) The Retirement Board 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 Retirement Board 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 Retirement Board 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 Retirement Board 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 Retirement Board. No member of the Retirement Board 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. Subject to Section 4.3, all Employees who are determined eligible to participate in accordance with Section 4.2: (a) whose benefits under the Pension Plan are limited by the limitations set forth in Sections 401(a)(17) or 415 of the Code, (b) for whom contributions by their Employing Company to the Savings Plan are limited by the limitations set forth in Sections 401(a)(17), 401(k), 401(m), 402(g) or 415 of the Code, (c) for whom contributions by their Employing Company to the ESOP are limited by the limitations set forth in Sections 401(a)(17) or 415 of the Code, (d) for whom contributions by their Employing Company to the Performance Sharing Plan are limited by the limitations set forth in Sections 401(a)(17) or 415 of the Code, or (e) who make deferrals under the Deferred Compensation Plan, shall be eligible to receive benefits under the Plan. 4.2......Determination of Eligibility. The Retirement Board 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 Retirement Board shall be authorized to rescind the eligibility of any Participant if necessary to insure 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. 4.3......Eligibility of Employees of Savannah Electric and Power Company. .........(a) Employees of Savannah Electric and Power Company meeting the requirements of Sections 4.1 and 4.2 on or after January 1, 1997 shall be eligible to participate in the Plan provided that such employees are not participating in the Supplemental Executive Retirement Plan of Savannah Electric and Power Company. Such Employees' benefits shall include any accruals for the Plan Year ending December 31, 1997 as determined in accordance with Sections 5.1 and 5.2. .........(b) Notwithstanding paragraph (a) above, Employees of Savannah Electric and Power Company who have participated in The Southern Company Deferred Compensation Plan on and after January 1, 1996, shall be eligible to participate in the Plan but only to the extent that the Plan compensates employees for lost benefits resulting from participation in The Southern Company Deferred Compensation Plan. Such Employees' benefits shall include any accruals permitted under the preceding sentence for Plan Years ending December 31, 1996 and December 31, 1997 determined in accordance with Sections 5.1 and 5.2. ARTICLE V - BENEFITS 5.1......Pension Benefit. .........(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 Sections 401(a)(17), 415(b), or 415(e) of the Code. .........(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, without regard to the limitation of Section 401(a)(17) of the Code, including any portion of his compensation he may have elected to defer under the Deferred Compensation Plan, but excluding incentive pay he deferred under such Deferred Compensation Plan. .........(c) To the extent that a Participant's Retirement Income under the Pension Plan is recalculated as a result of an amendment to the Pension Plan in order to increase the amount of his Retirement Income, the Participant's Pension Benefit shall also be recalculated in order to properly reflect such increase in determining payments of the Participant's Pension Benefit made on or after the effective date of such increase. 5.2......Non-Pension Benefit. .........(a) A Participant shall be entitled to a Non-Pension Benefit which is determined under this Section 5.2. An Account shall be established for the Participant as of his initial Plan Year of participation in the Plan. Each Plan Year, such Account shall be credited with an amount equal to the amount that his Employing Company is prohibited from contributing (1) to the Savings Plan on behalf of the Participant as a result of the limitations imposed by Sections 401(a)(17), 401(k), 401(m), 402(g), 415(c) or 415(e) of the Code, (2) to the ESOP on behalf of the Participant as a result of the limitations imposed by Sections 401(a)(17), 415(c) or 415(e) of the Code and (3) to the Performance Sharing Plan (including for the 1997 Plan Year) on behalf of the Participant as a result of the limitations imposed by Sections 401(a)(17), 415(c) or 415(e) of the Code. .........(b) For purposes of this Section 5.2, the Non-Pension Benefit of a Participant shall be calculated based on the Participant's compensation that would have been considered in calculating allocations to his accounts under the Savings Plan, ESOP and Performance Sharing Plan, without regard to the limitations of Section 401(a)(17) or Section 402(g) of the Code, including any portion of his compensation he may have elected to defer under the Deferred Compensation Plan, but with respect to the Savings Plan only excluding incentive pay he deferred under the Deferred Compensation Plan. .........(c) The Non-Pension Benefit of the Participant shall be deemed to be invested in Phantom Common Stock. On each such date of investment, a Participant's Account shall be credited with the number of shares (including fractional shares) of Phantom Common Stock which could have been purchased on such date, based upon the Common Stock's Purchase Price. As of the date upon which occurs the payment of dividends on the Common Stock, there shall be credited with respect to shares of Phantom Common Stock in the Participant's Account on such date, such additional shares (including fractional shares) of Phantom Common Stock as follows: (1) In the case of cash dividends, such additional shares as could be purchased at the Purchase Price with the dividends which would have been payable if the credited shares had been outstanding; (2) In the case of dividends payable in property other than cash or Common Stock, such additional shares as could be purchased at the Purchase Price with the fair market value of the property which would have been payable if the credited shares had been outstanding; or (3) In the case of dividends payable in Common Stock, such additional shares as would have been payable on the credited shares if they had been outstanding. (d) As soon as practicable following the first day of his eligibility to have benefits credited to his Account, a Participant shall designate in writing on a form to be prescribed by the Retirement Board the method of payment of his Account, which shall be the payment of a single lump sum or a series of annual installments not to exceed twenty (20). The method of distribution initially designated by a Participant shall not be revoked and shall govern the distribution of a Participant's Account. Notwithstanding the foregoing, in the sole discretion of the Retirement Board, upon application by the Participant, the method of distribution designated by such Participant may be modified not prior to 395 days nor later than 365 days prior to a Participant's date of separation from service in order to change the form of distribution of his Account in accordance with the terms of the Plan; provided, however, that any Participant who is required to file reports pursuant to Section 16(a) of the Securities and Exchange Act of 1934, as amended, with respect to equity securities of The Southern Company shall not be permitted to amend his distribution election during any time period for which such Participant is required to file any such reports with respect to his Non-Pension Benefit unless such amendment is specifically approved by the Retirement Board in its sole discretion. Each Participant, his Beneficiary, and legal representative shall be bound as to any action taken pursuant to the method of distribution elected by a Participant and the terms of the Plan. 5.3 Distribution of Benefits. (a) The Pension Benefit, as determined in accordance with Section 5.1, shall be payable in monthly increments on the first day of the month concurrently with the Participant's Retirement Income under the Pension Plan. The form in which the Pension Benefit is paid will be the same as elected by the Participant under the Pension Plan except that the amount of the monthly benefit will be modified at the appropriate time based on the commencement of payments as follows. Payments shall be adjusted to include three components: (1) The amount necessary to pay the Hospital Insurance portion of the tax due under the Federal Insurance Contributions Act 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) calculated in accordance with Section 5.1; (2) The amount estimated to pay the federal and state income tax withholding liability due on the amount paid under paragraph (1) above; and (3) An adjusted monthly benefit determined on an actuarially equivalent basis in accordance with the terms of the Pension Plan which takes into account the amounts paid under paragraph (1) and (2) above and taking into account the form of benefit elected by the Participant under the Pension Plan. Upon adjustment, the remaining monthly payments shall equal the amount described in paragraph (3) above. The Beneficiary of a Participant's Pension Benefit shall be the same as the Provisional Payee, if any, of the Participant's Retirement Income under the Pension Plan. (b) When a Participant terminates his employment with an Employing Company, said Participant shall be entitled to receive the market value of any shares of Phantom Common Stock (and fractions thereof) reflected in his Account in a single lump sum distribution or annual installments not to exceed twenty (20). Such distribution shall be made not later than sixty (60) days following the date on which his termination of employment occurs, or as soon as reasonably practicable thereafter. The transfer by a Participant between companies within The Southern Company shall not be deemed to be a termination of employment with an Employing Company. With regard to any distribution made under this Article, the market value of any shares of Phantom Common Stock credited to a Participant's Account shall be based on the Sales Price. No portion of a Participant's Account shall be distributed in Common Stock. (c) In the event a Participant elects to receive the distribution of his Account in annual installments, the first payment shall be made not later than sixty (60) days following the date on which his termination of employment occurs, or as soon as reasonably practicable thereafter. Installments shall equal the balance in the Participant's Account taking into account the tax due under the Federal Insurance Contributions Act divided by the number of annual installment payments. Each subsequent annual payment shall be an amount equal to the balance in the Participant's Account as of the Valuation Date, divided by the number of the remaining annual payments and shall be due on the anniversary of the preceding payment date. (d) Upon the death of a Participant, or a former Participant prior to the payment of the market value of any shares of Phantom Common Stock (and fractions thereof) credited to said Participant's Account based on the Sales Price, the unpaid balance shall be paid in the sole discretion of the Retirement Board (1) in a lump sum to the designated Beneficiary of a Participant or former Participant within sixty (60) days following the date on which the Retirement Board is provided evidence of the Participant's death (or as soon as reasonably practicable thereafter) or (2) in accordance with the distribution method chosen by such Participant or former Participant. The Beneficiary designation may be changed by the Participant or former Participant at any time without the consent of the prior Beneficiary. In the event a Beneficiary designation is not on file or the designated Beneficiary is deceased or cannot be located, payment will be made to the person or persons in the first of the following classes of successive preference, if then living: (1) the Participant's spouse on the date of his death; (2) the Participant's children, equally; (3) the Participant's parents, equally; (4) the Participant's brothers and sisters, equally; or (5) 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. (e) Upon the total disability of a Participant or former Participant, as determined by the Social Security Administration prior to the payment of the market value of any shares of Phantom Common Stock (and practices thereof) credited to such Participant's Account based on the Sales Price, the unpaid balance of his Account shall be paid in the sole discretion of the Retirement Board (1) in a lump sum to the Participant or former Participant, or his legal representative within sixty (60) days following the date on which the Retirement Board receives notification of the determination of a disability by the Social Security Administration (or as soon as reasonably practicable thereafter) or (2) in accordance with the distribution method elected by such Participant or former Participant. (f) The Retirement Board, in its sole discretion upon application made by the Participant, a designated Beneficiary, or their legal representative, may determine to accelerate payments or, in the event of death or total disability (as determined by Social Security Administration), to extend or otherwise make payments in a manner different from the manner in which such payment would be made under the method of distribution elected by the Participant in the absence of such determination. 5.4 Allocation of Pension Benefit Liability. In the event that a Participant eligible to receive a Pension Benefit has been employed at more than one Employing Company, the Pension Benefit liability shall be apportioned so that each such Employing Company is obligated in accordance with Section 5.5 to cover the percentage of the total Pension Benefit as determined below. Each Employing Company's share of the Pension Benefit liability shall be calculated by multiplying the Pension Benefit by a fraction where the numerator of such fraction is the pay, as defined by the Retirement Board, received by the Participant at the respective Employing Company multiplied by the Accredited Service earned by the Participant at the respective Employing Company and where the denominator of such fraction is the sum of all numerators calculated for each respective Employing Company for which the Participant has been employed. 5.5 Funding of Benefits. Neither the Company nor any Employing Company hereunder shall reserve or otherwise set aside funds for the payment of its obligations under the Plan, and such obligations shall be paid solely from the general assets of the Employing Companies. Notwithstanding that a Participant shall be entitled to receive the balance of his Account under the Plan, the assets from which such amount shall be paid shall at all times remain subject to the claims of the creditors of the Participant's Employing Company. 5.6 Withholding. There shall be deducted from payments and, if necessary, from the Non-Pension Account under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by an Employing Company to such governmental authority for the account of the Participant or Beneficiary. ARTICLE VI - MISCELLANEOUS 6.1 Assignment. Neither the Participant, his Beneficiary, nor his legal representative shall have any rights to sell, assign, transfer or otherwise convey the right to receive the payment of any Pension Benefit or Non-Pension Benefit due hereunder, which payment and the right thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payment under the Plan shall be null and void and of no effect. 6.2 Amendment and Termination. The Plan may be amended or terminated at any time by the Board of Directors, provided that no amendment or termination shall cause a forfeiture or reduction in any benefits accrued as of the date of such amendment or termination. The Plan may also be amended by the Retirement Board (a) if such amendment does not involve a substantial increase in cost to any Employing Company, or (b) as may be necessary, proper, or desirable in order to comply with laws or regulations enacted or promulgated by any federal or state governmental authority. 6.3 No Guarantee of Employment. Participation hereunder shall not be construed as creating any contract of employment between any Employing Company and a Participant, nor shall it limit the right of an Employing Company to suspend, terminate, alter, or modify, whether or not for cause, the employment relationship between such Employing Company and a Participant. 6.4 Construction. This Plan shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent such laws are not otherwise superseded by the laws of the United States. IN WITNESS WHEREOF, the Plan has been executed by a duly authorize officer of Southern Company Services, Inc., pursuant to resolutions of the Board of Directors of the Company, this day of , 1998. SOUTHERN COMPANY SERVICES, INC. By: _____________________________________________________ Christopher C. Womack Vice President, Human Resources ATTEST: By: _________________________________________________________ Title:________________________________________________________ APPENDIX A THE SOUTHERN COMPANY SUPPLEMENTAL BENEFIT PLAN EMPLOYING COMPANIES AS OF JULY 1, 1998 Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric and Power Company Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Southern Company Services, Inc. Southern Energy Resources, Inc. Southern Nuclear Operating Company, Inc. EX-10.A.78 15 EXHIBIT 10(a)78 SOUTHERN COMPANY CHANGE IN CONTROL SEVERANCE PLAN Troutman Sanders LLP NationsBank Plaza, Suite 5200 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Effective December 7, 1998 SOUTHERN COMPANY CHANGE IN CONTROL SEVERANCE PLAN ARTICLE 1 - PURPOSE AND ADOPTION OF PLAN 1.1 Adoption of Plan. Southern Company Services, Inc. hereby adopts this Southern Company Change in Control Severance Plan, effective December 7, 1998. The Plan shall be an unfunded severance pay plan that is a welfare plan as such term is defined by the Employee Retirement Income Security Act of 1974, the benefits of which shall be paid solely from the general assets of the respective Employing Companies. 1.2 Purpose. The Plan is primarily designed to provide benefits to certain employees of the Employing Companies, whose employment is terminated subsequent to a change in control of Southern or their respective Employing Company. ARTICLE 2 - DEFINITIONS 2.1 "Administrative Committee" shall mean the Board of Directors, plus, in the event of any act necessary to be taken in connection with the Plan relative to a particular Participant, the Chief Executive Officer of the Participant's Employing Company, if such Chief Executive Officer is not already a member of the Board of Directors. 2.2 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 2.3 "Board of Directors" shall mean the board of directors of the Company. 2.4 "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. 2.5 "Change in Control" shall mean, (a) with respect to Southern, the occurrence of any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Section 2.5(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by an Employee or Group composed exclusively of Employees; or (F) any Business Combination which would not otherwise constitute a Change in Control because of the application of clauses (A), (B) and (C) of Section 2.5(a)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (iii) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (b) with respect to an Employing Company, the occurrence of any of the following: (i) Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Section 2.5(b)(i), any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, any publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (ii) Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation surviving or resulting from such Employing Company Business Combination; or (iii) Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern does not Control. 2.5 "COBRA Coverage" shall mean any continuation coverage to which a Participant or his dependents may be entitled pursuant to Code Section 4980B. 2.6 "Code" shall mean the Internal Revenue Code of 1986, as amended. 2.7 "Company" shall mean Southern Company Services, Inc., its successors and assigns. 2.8 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. 2.9 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 2.10 "Effective Date" shall mean the date of execution hereof. 2.11 "Employee" shall mean each active exempt and nonexempt employee of an Employing Company of Grade 9 or below (or, if the Grade system is not used, below $130,000 of annual base salary rate for the twelve month period immediately preceding the Change in Control) not covered by a collective bargaining agreement between the Employing Company and a union or other employee representative. 2.12 "Employee Outplacement Program" shall mean the program established by the Employing Company from time to time for the purpose of assisting Participants covered by the Plan in finding employment outside of the Employing Company which provides for the following services: (a) self assessment, career decision and goal setting; (b) job market research and job sources; (c) networking and interviewing skills; (d) planning and implementation strategy; (e) resume writing, job hunting methods and salary negotiation; and (f) office support and job search resources. 2.13 "Employing Company" shall mean the Company, or any other Southern Subsidiary, 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. 2.14 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 2.15 "Good Reason" shall mean, without an Employee's express written consent, after written notice to his Employing Company, and after a thirty (30) day opportunity for the Employee's Employing Company to cure, the continuing occurrence of any of the following events: (a) Reduced Salary. A reduction of five percent (5%) or more by the Employing Company in either of the following: (i) the Employee's annual base salary rate for the twelve month period immediately preceding the Change in Control ("Base Salary") (except for a less than ten percent (10%), across-the-board Base Salary reduction similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company) or (ii) the sum of the Employee's Base Salary plus target bonus under his Employing Company's short term bonus plan (e.g., either the PPP Plan or the Southern Energy, Inc. Short Term Plan, as the case may be), as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board reduction of Base Salary plus target bonus under such short term plans similarly affecting at least ninety-five (95%) of all Employees of the Employing Company); (b) Relocation. A change in an Employee's work location to a location more than fifty (50) miles from the facility where the Employee was located at the time of the Change in Control, unless such new work location is within fifty (50) miles from the Employee's principal place of residence at the time of the Change in Control. The acceptance, if any, by an Employee of employment by an Employing Company at a work location which is outside the fifty mile radius set forth in this Section 2.15(b) shall not be a waiver of the Employee's right to refuse subsequent transfer by an Employing Company to a location which is more than fifty (50) miles from the Employee's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; (c) Compensation Plans. The failure by an Employing Company to continue in effect any "compensation plan or agreement" in which an Employee participates or the elimination of the Employee's participation in any such plan (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company); For purposes of this Section 2.15(c), the term "compensation plan or agreement" shall mean any written arrangement executed by an authorized officer of the Employing Company which provides for periodic, non-discretionary compensatory payments to Employees in the nature of bonuses. (d) Benefits and Perquisites. The taking of any action by the Employing Company that would directly or indirectly materially reduce the benefits enjoyed by an Employee under the Employing Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which the Employee was participating immediately prior to the Change in Control, or the failure by the Employing Company to provide an Employee with the number of paid vacation days to which the Employee is entitled on the basis of years of service with the Employing Company in accordance with the Employing Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company). 2.16 "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. 2.17 "Group Health Plan" shall mean the group health plan covering the Participant, as such plan may be amended from time to time. 2.18 "Group Life Insurance Plan" shall mean the group life insurance program covering the Participant, as such plan may be amended from time to time. 2.19 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 2.20 "Month of Service" shall mean any calendar month during which a Participant has worked at least one (1) hour or was on approved leave of absence while in the employ of an Employing Company or any other Southern Subsidiary. 2.21 "Participant" shall mean an Employee who meets the eligibility requirements of Section 3.1 of this Plan. 2.22 "Pension Plan" shall mean The Southern Company Pension Plan or any successor thereto, as such plans may be amended from time to time. 2.23 "Performance Dividend Plan" or "PDP Plan" shall mean the Southern Company Performance Dividend Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.25 thereof, as such plans may be amended from time to time. 2.24 "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.31 thereof, as such plans may be amended from time to time. 2.25 "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.33 thereof, as such plans may be amended from time to time. 2.26 "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Exchange Act. 2.27 "Plan" shall mean the Southern Company Change in Control Severance Plan. 2.28 "PIP Plan" shall mean the "Southern Company Productivity Improvement Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.30 thereof, as such plans may be amended from time to time. 2.29 "Short Term Plan" shall mean the Southern Energy Resources, Inc. Short Term Plan, as amended from time to time. 2.30 "Southern" shall mean The Southern Company, its successors and assigns. 2.31 "Southern Board" shall mean the board of directors of Southern. 2.32 "Southern Subsidiary" shall mean any corporation or other entity which Southern Controls. 2.33 "Straight Time Pay" shall mean a Participant's highest base salary during the calendar year in which his Termination Date occurs. Base salary shall include "add ons" such as monthly shift differential, monthly premium pay, etc., but shall not include overtime pay. For Participants who were part-time Employees "Straight Time Pay" shall mean the actual average salary paid during the calendar year in which the Participant's Termination Date occurs. 2.34 "Termination for Cause" or "Cause" shall mean an Employee's termination of employment with his Employing Company upon the occurrence of any of the following: (a) The willful and continued failure by the Employee to substantially perform his duties with his Employing Company (other than any such failure resulting from the Employee's Total Disability or from the Employee's retirement or any such actual or anticipated failure resulting from termination by the Employee for Good Reason) after a written demand for substantial performance is delivered to him by the Employee's responsible corporate officer, which demand specifically identifies the manner in which such corporate officer believes the Employee has not substantially performed his duties; or (b) The willful engaging by the Employee in conduct that is demonstrably and materially injurious to his Employing Company, monetarily or otherwise, including but not limited to any of the following: (i) any willful act involving fraud or dishonesty in the course of an Employee's employment by his Employing Company; (ii) the willful carrying out of any activity or the making of any statement by an Employee which would materially prejudice or impair the good name and standing of his Employing Company, Southern or any other Southern Subsidiary or would bring his Employing Company, Southern or any other Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which his Employing Company, Southern or such other Southern Subsidiary is located; (iii) attendance by an Employee at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (iv) violation of his Employing Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Employing Company's safety officer; (v) assault or other act of violence by an Employee against any person during the course of employment; or (vi) an Employee's indictment for any felony or any misdemeanor involving moral turpitude. No act or failure to act by an Employee shall be deemed "willful" unless done, or omitted to be done, by the Employee not in good faith and without reasonable belief that his action or omission was in the best interest of his Employing Company. Notwithstanding the foregoing, an Employee shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of the majority of the Administrative Committee at a meeting called and held for such purpose (after reasonable notice to the Employee and an opportunity for him, together with counsel, to be heard before the Administrative Committee), finding that, in the good faith opinion of the Administrative Committee, the Employee was guilty of conduct set forth in Section 2.34(a) or (b) hereof and specifying the particulars thereof in detail. 2.35 "Termination Date" shall mean the date on which a Participant is separated from his Employing Company's regular payroll; provided, however, that solely for purposes of Section 3.2(c) hereof, the Termination Date of Participants who are deemed to be retired pursuant to the provisions of Section 3.3 hereof, shall be the effective date of their retirement pursuant to the terms of the Pension Plan. 2.36 "Total Disability" shall mean total disability under the terms of the Pension Plan. 2.37 "Value Creation Plan" shall mean the Southern Energy Resources, Inc. Value Creation Plan or any replacement thereto which is considered an "equitable arrangement" under Section 1.30 thereof, as such plans may be amended from time to time. 2.36 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. 2.37 "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit A. 2.38 "Year of Service" shall mean an Employee's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If an Employee has a break in his service with his Employing Company, he will receive credit under this Plan for the service prior to the break in service only if the break in service was less than five years and his service prior to the break exceeds the length of the break in service. ARTICLE 3 - SEVERANCE BENEFITS 3.1 Eligibility. Except as otherwise provided herein, any Employee whose employment is involuntarily terminated by his Employing Company at any time during the two year period following a Change in Control of Southern or his Employing Company for reasons other than Cause or who shall voluntarily terminate his employment with his Employing Company for Good Reason at any time during the two year period following a Change in Control of Southern or his Employing Company shall be entitled to participate in this Plan and receive the benefits described in Section 3.2 hereof, subject to the terms and conditions described in this Article 3. Notwithstanding anything to the contrary herein, an Employee shall not be eligible to receive benefits under this Plan if the Employee: (a) is not actively at work on his Termination Date, unless such Employee is capable of returning to work within twelve (12) weeks of the beginning of any leave of absence from work; (b) voluntarily terminates his employment with his Employing Company for other than Good Reason; (c) is terminated by his Employing Company for Cause; (d) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that acquires all or substantially all of the assets of Southern, a Southern Subsidiary or his Employing Company; (e) refuses an offer of continued employment with his Employing Company, Southern or a Southern Subsidiary, or any employer that acquires all or substantially all of the assets of Southern, a Southern Subsidiary or his Employing Company, under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment and such employer agrees to adopt this Plan as it applies to such Participant; or (f) elects to receive the benefits of any other voluntary or involuntary severance, separation or outplacement program maintained by his Employing Company; provided however, that the receipt of benefits under any retention plan or agreement shall not be deemed to be the receipt of benefits under any severance, separation or outplacement program for purposes of this Plan. 3.2 Benefits. Upon the Employing Company's receipt of an effective Waiver and Release, Participants shall be entitled to receive the following benefits: (a) Employee Outplacement Services. Each Participant shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from the Participant's Termination Date. (b) Severance Benefit. Each Participant shall be paid a cash amount equal to the sum of the following amounts: (i) eight (8) weeks' Straight Time Pay, (ii) one (1) week's Straight Time Pay for each of the Participant's first five (5) Years of Service; (iii) two (2) weeks' Straight Time Pay for each of the Participant's sixth (6th) through tenth (10th) Years of Service; (iv) three (3) weeks' Straight Time Pay for each of the Participant's eleventh (11th) through fifteenth (15th) Years of Service; (v) five (5) weeks' Straight Time Pay for each of the Participant's sixteenth (16th) through twentieth (20th) Years of Service; and (vi) six (6) weeks' Straight Time Pay for each of the Participant's Years of Service in excess of twenty (20) Years of Service. (c) Welfare Benefit. (i) Except as provided in Section 3.3 hereof, each Participant shall be eligible to participate in the Employing Company's Group Health Plan for a period of six (6) months for each of the Participant's Years of Service, not to exceed a period of five (5) years, beginning on the first day of the first month following the Participant's Termination Date unless otherwise specifically provided under such plan, upon the Participant's payment of both the Employing Company's and the Participant's premium under such plan. A Participant who receives this extended medical coverage shall also be entitled to elect coverage under the Group Health Plan for his dependents who are participating in the Group Health Plan on the Participant's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of the Participant's extended medical coverage under this Section 3.2(c) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (ii) The extended medical coverage afforded to a Participant pursuant to this Section 3.2(c) as well as the premiums to be paid by the Participant in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by the Participant in connection with this extended coverage shall be due on the first day of each month; provided, however, that if a Participant fails to pay his premium within thirty (30) days of its due date, such Participant's extended coverage shall be terminated. (iii) Any Group Health Plan coverage provided under this Section 3.2(c) shall be a part of and not in addition to any COBRA Coverage which a Participant or his dependent may elect. In the event that a Participant or his dependent becomes eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Employing Company's Group Health Plan available to the Participant or his dependent by virtue of the provisions of this Article 3 shall terminate, except as may otherwise be required by law, and shall not be renewed. It shall be the duty of a Participant to inform the Employing Company of his eligibility to participate in any such health plan. (iv) Except as otherwise provided in Section 3.3 hereof, regardless of whether a Participant elects the extended coverage described in Section 3.2(c) hereof, the Employing Company shall pay to each Participant a cash amount equal to the Employing Company's and the Participant's cost of premiums for coverage under the Group Health Plan and Group Life Insurance Plan, if the Participant was participating in such plans on his Termination Date, for a period equal to the total number of weeks of pay the Participant receives as a severance benefit under Section 3.2(b) hereof. (d) Stock Option Vesting. The provisions of this Section 3.2(d) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Stock Plan, the defined terms of which are incorporated in this Section 3.2(d) by reference. (i) Any of the Participant's Options and Stock Appreciation Rights outstanding as of the Termination Date which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Participant holding a Stock Appreciation Right who is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to the Participant under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (ii) The restrictions and deferral limitations applicable to any of the Participant's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (iii) The restrictions and deferral limitations and other conditions applicable to any other Awards held by the Participant under the Performance Stock Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (e) Performance Pay Plan. The provisions of this Section 3.2(e) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Pay Plan, the defined terms of which are incorporated in this Section 3.2(e) by reference. Provided the Participant is not entitled to benefits under Article V of the PPP Plan, if the PPP Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Award under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (f) PIP Plan. The provisions of this Section 3.2(f) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the PIP Plan, the defined terms of which are incorporated in this Section 3.2(f) by reference. Provided the Participant is not entitled to benefits under Article IV of the PIP Plan, if the PIP Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his Award Opportunity under the PIP Plan for the Computation Periods in which the Termination Date shall have occurred, at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of each of the Computation Periods until the Termination Date. (g) Performance Dividend Plan. The provisions of this Section 3.2(g) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Dividend Plan, the defined terms of which are incorporated in this Section 3.2(g) by reference. Provided the Participant is not entitled to benefits under Article V of the Performance Dividend Plan, if the Performance Dividend Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash for each Award held as of such date based on a Payout Percentage of 50% under Section 4.1 of the Performance Dividend Plan for the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (h) Value Creation Plan. The provisions of this Section 3.2(h) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Value Creation Plan, the defined terms of which are incorporated in this Section 3.2(h) by reference. Any of the Participant's Appreciation Rights or Indexed Rights outstanding as of the Termination Date which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant. Notwithstanding anything in the Value Creation Plan to the contrary, Share Value with respect to any Appreciation Rights or Indexed Rights held by the Participant following his Termination Date shall be no less than the Share Value as of the date of the Change in Control of Southern or his Employing Company, as the case may be. (i) Short Term Plan. The provisions of this Section 3.2(i) shall apply to any Participant who, as of the date of the Change in Control was a Participant in the Short Term Plan, the defined terms of which are incorporated in this Section 3.2(i) by reference. Provided the Participant is not entitled to benefits under Article V of the Short Term Plan, if the Short Term Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his Award under the Short Term Plan for the Performance Period in which the Termination Date shall have occurred, at Total Target for the Participant's Job Category and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (j) Other Short Term Incentive Plans. The provisions of this Section 3.2(j) shall apply to any Participant who, as of the date of the Change in Control is a participant in any other "short term incentive compensation plan" not otherwise previously referred to in this Section 3.2. Provided the Participant is not otherwise entitled to a plan payout under any change in control provisions of such plans, if the "short term incentive compensation plan" is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his award under his respective Employing Company's "short term incentive compensation plan" for the annual performance period in which the Termination Date shall have occurred, at the Participant's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until the Termination Date. For purposes of this Section 3.2(j), the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by an Employing Company which provides for annual, recurring compensatory bonuses to participants based upon articulated performance criteria, and which have been identified by the Board of Directors and listed on Exhibit B hereto which may be amended from time to time to reflect plan additions, terminations and amendments. 3.3 Coordination with Retiree Medical and Life Insurance Coverage. Notwithstanding anything to the contrary above, any Participant who is otherwise eligible to retire pursuant to the terms of the Pension Plan, shall be deemed to have retired for purposes of all employee benefit plans sponsored by the Employing Company of which the Participant is a participant. A Participant who is deemed to have retired in accordance with the preceding sentence shall not be eligible to receive the benefits described in Section 3.2(c) hereof if, upon his Termination Date, such Participant becomes eligible to receive the retiree medical and life insurance coverage provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan. 3.4 Maximum Benefit. Notwithstanding anything to the contrary above, with respect to each Participant, the maximum benefit payable under this Article 3 shall be an amount equal to two (2) times such Participant's "annual compensation" as defined in Department of Labor Regulation Section 2510.3-2(b), which, for purposes of this Plan shall be no less than Straight Time Pay plus thirty percent (30%). When necessary, the Administrative Committee shall reduce the severance benefits described in Section 3.2(b) and 3.2(c)(iv) hereof to comply with this Section 3.4. 3.5 Payment of Benefits. The total amount payable under this Article 3 shall be paid to a Participant in one (1) lump sum payment within two (2) payroll periods of the later of the following to occur: (a) the Participant's Termination Date, or (b) the tender to the Employing Company by the Participant of an effective Waiver and Release (in the form of Exhibit A attached hereto) and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Employing Company. 3.6 Benefits in the Event of Death. In the event of the Participant's death prior to the payment of all benefits due under this Article 3, the Participant's estate shall be entitled to receive as due any amounts not yet paid under this Article 3 upon the tender by the executor or administrator of the estate of an effective Waiver and Release. 3.7 Legal Fees. In the event of a dispute between a Participant and his Employing Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in the Participant's favor, his Employing Company shall reimburse the Participant's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifteen thousand dollars ($15,000). 3.8 No Mitigation. A Participant who receives benefits under Section 3.2 of this Plan shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Subsection 3.1(d) hereof, the amounts due a Participant hereunder shall not be reduced or suspended if such Participant accepts such subsequent employment. 3.9 Non-qualified Retirement and Deferred Compensation Plans. Subsequent to a Change in Control, any claims by a Participant for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the procedures and provisions set forth in Article 5 hereof and if any material issue in such dispute is finally resolved in the Participant's favor, the Company shall reimburse the Participant's legal fees in the manner provided in Section 3.7 hereof. ARTICLE 4 - ADMINISTRATION 4.1 Administrative Committee. The Administrative Committee shall be responsible for the general administration of the Plan and shall be a "named fiduciary" under Section 402 of the Employee Retirement Income Security Act of 1974, as amended. 4.2 Duties of the Administrative Committee. (a) The Administrative Committee shall be responsible for the daily administration of the Plan and may appoint other persons or entities to perform or assist in the performance of any of its fiduciary duties, subject to its review and approval. The Administrative Committee shall have the right to remove any such appointee from his position without cause upon notice. Any person, group of persons, or entity may serve in more than one fiduciary capacity. (b) The Administrative Committee shall maintain permanent 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 Company and any persons designated thereby. (c) The Administrative Committee shall take all steps necessary to ensure that the Plan complies with the law at all times, including the preparation and filing of all documents and forms required by any governmental agency; maintenance of adequate Participant records; recording and transmission of all notices required to be given to Participants and their beneficiaries; receipt and dissemination, if required, of all reports and information received from the Employing Companies; 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 accounts, records, and other data as may be necessary for proper administration of the Plan. The Administrative Committee shall notify the Employing Companies upon their request of any action taken by it, and when required, shall notify any other interested person or persons. 4.3 Powers. 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 as more particularly set forth herein. The Administrative Committee shall have the discretionary authority to interpret the Plan (including any ambiguities herein) and to determine all questions arising in the administration, interpretation, and application of the Plan. The Administrative Committee shall adopt such procedures and regulations necessary or desirable for the discharge of its duties hereunder and may appoint such accountants, counsel, actuaries, specialists, and other agents as it deems necessary or desirable in connection with the administration of this Plan. The Administrative Committee shall be the legal appointed agent for the service of process. 4.4 Compensation of the Administrative Committee. The Administrative Committee shall not receive any compensation from the Plan for its services. 4.5 Payment of Expenses. The Administrative Committee shall be reimbursed by the Employing Companies for its reasonable expenses incurred in the discharge of its duties. Such expenses shall include any expenses incident to its duties, including, but not limited to, fees of accountants, counsel, actuaries, and other specialists, and other costs of administering the Plan. 4.6 Indemnification. Each Employing Company shall indemnify the Administrative Committee against any and all claims, losses, damages, expenses, and liability arising from its actions or omissions, except when the same is finally adjudicated to be the result of 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 omission in connection with the execution of the duties as the Administrative Committee. ARTICLE 5 - ARBITRATION 5.1 General. Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Plan, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Article 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to a Participant's employment by an Employing Company or the termination thereof. 5.2 Demand for Arbitration. Arbitration shall be initiated by serving a written notice of demand for arbitration to the Participant, in the case of an Employing Company, or to the Administrative Committee, in the case of a Participant. 5.3 Law and Venue. The arbitrators shall apply the laws of the State of Georgia, except to the extent pre-empted by federal law, excluding any law which would require the use of the law of another state. The arbitration shall be held in Atlanta, Georgia. 5.4 Appointment of Arbitrators. Arbitrators shall be appointed within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by the Participant, one arbitrator shall be appointed by the Employing Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. 5.5 Costs. The arbitration filing fee shall be paid by the Participant. All other costs of arbitration shall be borne equally by the Participant and his Employing Company, provided, however, that such Employing Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in the Participant's favor and the Participant is reimbursed legal fees under Section 3.7 hereof. 5.6 Interim and Injunctive Relief. Nothing in this Article 5 is intended to preclude, upon application of either party, any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to either party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Article 5 and nothing herein is intended to prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Article 5. ARTICLE 6 - MISCELLANEOUS 6.1 Funding of Benefits. Unless the Board of Directors in its discretion determines otherwise, the benefits payable to a Participant under the Plan shall not be funded in any manner and shall be paid by the Employing Companies out of their general assets, which assets are subject to the claims of the Employing Companies' creditors. 6.2 Withholding. There shall be deducted from the payment of any benefit due under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by the Employing Companies to such governmental authority for the account of the Participant entitled to such payment. 6.3 Assignment. No Participant or beneficiary shall have any rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. 6.4 Amendment and Termination. The Plan may be amended or terminated at any time by the Board of Directors, provided, however, the Plan may not be amended in any material of respect or terminated within the two (2) year period following a Change in Control nor shall any amendment or termination impair the rights of any Participant which have accrued hereunder prior to any such amendment or termination. 6.5 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, this Southern Company Change in Control Severance Plan has been executed by the Company through its duly authorized officer, this ____ day of ___________, 1999, to be effective as provided herein. SOUTHERN COMPANY SERVICES, INC. By: Christopher C. Womack Senior Vice President Exhibit A SOUTHERN COMPANY CHANGE IN CONTROL SEVERANCE PLAN Waiver and Release I understand that I am entitled to receive the severance benefits described in Article 3 of the Southern Company Change in Control Severance Plan (the "Plan") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I have elected to receive under the Plan are in excess of those I would have received from ____________________ (the "Company") if I had not elected to participate in the Plan and sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. I understand and agree that I am obligated to keep confidential and not disclose the terms of this Waiver, including, but not limited to, the benefits under this Plan, except to my attorneys, financial advisors, or except where such disclosure is required by law. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to any vested or accrued benefits that I have under any workers' compensation laws or any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company except for programs specifically designed for participants in the Plan. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to forty-five (45) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this _____ day of ________________, in the year ___. Employee's signature Employee's printed name Acknowledged and Accepted by the Administrative Committee of the Southern Company Change in Control Severance Plan. By: Date: Attachment to Exhibit A TO: All Eligible Employees under the Southern Company Change in Control Severance Plan FROM: _____________________ RE: ADEA Information Notice DATE: _____________________ A severance plan known as the Southern Company Change in Control Severance Plan ("Plan") has been approved and established by The Southern Company, its affiliates and its direct and indirect subsidiaries (collectively the "Company"). You are eligible to participate in the Plan subject to the terms of the Plan. In accordance with the Age Discrimination in Employment Act ("ADEA"), the Company is providing you the following information pertaining to eligibility and participation in the Plan. o The purpose of the Plan is to provide benefits to certain employees of The Southern Company and certain subsidiaries of The Southern Company ("Employing Companies") whose employment is terminated subsequent to a change in control of The Southern Company or their respective Employing Company. A full description of the benefits under the Plan as well as any restrictions or limitations that may be applicable can be found in the Summary Plan Description you have been given. o Each active exempt and non-exempt employee of an Employing Company of Grade 9 or below (or, if the Grade System is not used, below $130,000 of annual base salary rate for the 12 month period immediately preceding the change in control) not covered by a collective bargaining agreement is generally eligible to participate in the Plan if during the two year period following a change in control: (i) his employment is involuntarily terminated for reasons other than cause, or (ii) he voluntarily terminates his employment for good reason. o All eligible employees may elect to receive severance benefits under the Plan by signing an Election Form and Waiver Agreement no later than 45 calendar days from the date it is received. The Agreement will remain revocable by you for a seven day period after you sign it. o Attached is a list sorted by job title and age of each employee eligible to participate in the Plan as well as a list of the ages of all employees in the same job classification who are not eligible to participate in the Plan. In furtherance of you making an informed decision, the Company urges you to seek a financial advisor, legal counsel and a qualified tax advisor to assist you in fully understanding your rights and benefits under the plan and the Election Form and Waiver Agreement that you will be required to sign to receive severance benefits under the Plan. If you have any questions or need additional information, please call me at _______________. Sincerely, - - - - - - - ---------------------- [Name] - - - - - - - ---------------------- [Title] ADEA INFORMATION NOTICE - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- Job Title, Classification Age of or Category of Eligible Employees Eligible Employees - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- [List job classification, title or category of all [List corresponding age of each eligible employee] eligible employees] - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- Job Title, Classification Age of or Category of Ineligible Employees Ineligible Employees - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- [List job classification, title or category of all [List corresponding age of each ineligible employee] ineligible employees] - - - - - - - ------------------------------------------------------------ ---------------------------------------------------------
Exhibit B SOUTHERN COMPANY CHANGE IN CONTROL SEVERANCE PLAN Short Term Incentive Compensation Plans EX-10.A.79 16 EXHIBIT 10(a)79 SOUTHERN COMPANY EXECUTIVE CHANGE IN CONTROL SEVERANCE PLAN Troutman Sanders LLP NationsBank Plaza, Suite 5200 600 Peachtree Street, N.E. Atlanta, Georgia 30308 Effective December 7, 1998 SOUTHERN COMPANY EXECUTIVE CHANGE IN CONTROL SEVERANCE PLAN ARTICLE 1 - PURPOSE AND ADOPTION OF PLAN 1.1 Adoption of Plan. Southern Company Services, Inc. hereby adopts this Southern Company Executive Change in Control Severance Plan, effective December 7, 1998. The Plan shall be an unfunded "top hat" plan designed to provide certain severance benefits to a select group of management or highly compensated employees, to be paid solely from the general assets of the respective Employing Companies. 1.2 Purpose. The Plan is primarily designed to provide benefits to certain key employees of the Employing Companies, whose employment is terminated subsequent to a change in control of Southern or their respective Employing Company. ARTICLE 2 - DEFINITIONS 2.1 "Administrative Committee" shall mean the Board of Directors, plus, in the event of any act necessary to be taken in connection with the Plan relative to a particular Participant, the Chief Executive Officer of the Participant's Employing Company, if such Chief Executive Officer is not already a member of the Board of Directors. 2.2 "Annual Compensation" shall mean a Participant's highest annual base salary rate for the twelve month period immediately preceding the date of the Change in Control plus market level target annual bonus as specified by Exhibit A attached hereto. 2.3 "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. 2.4 "Board of Directors" shall mean the board of directors of the Company. 2.5 "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. 2.6 "Change in Control" shall mean, (a) with respect to Southern, the occurrence of any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Section 2.6 (i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by an Employee or Group composed exclusively of Employees; or (F) any Business Combination which would not otherwise constitute a Change in Control because of the application of clauses (A), (B) and (C) of Section 2.6(a)(iii). (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; or (iii) Consummation of a Business Combination, unless, following such Business Combination, all of the following three conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any qualified pension plan, publicly held mutual fund, Group composed exclusively of Employees or employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (b) with respect to an Employing Company, the occurrence of any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of an Employing Company; provided, however, that for purposes of this Section 2.6(b)(i), any acquisition by an Employee, or Group composed entirely of Employees, any qualified pension plan, any publicly held mutual fund or any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (ii) The Consummation of a reorganization, merger or consolidation of an Employing Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation surviving or resulting from such Employing Company Business Combination; or (iii) The Consummation of the sale or other disposition of all or substantially all of the assets of an Employing Company to an entity which Southern does not Control. 2.7 "COBRA Coverage" shall mean any continuation coverage to which a Participant or his dependents may be entitled pursuant to Code Section 4980B. 2.8 "Code" shall mean the Internal Revenue Code of 1986, as amended. 2.9 "Company" shall mean Southern Company Services, Inc., its successors and assigns. 2.10 "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. 2.11 "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. 2.12 "Effective Date" shall mean the date of execution hereof. 2.13 "Employee" shall mean each full-time or regular part-time employee of an Employing Company of Grades 10 to 13 (or, if the Grade system is not used, $130,000 or more of annual base salary rate for the twelve month period immediately preceding the Change in Control who has not otherwise entered into a Change in Control agreement with his Employing Company and elects to receive benefits under such agreement) and is not covered by a collective bargaining agreement between the Employing Company and a union or other employee representative. 2.14 "Employee Outplacement Program" shall mean the program established by the Employing Company from time to time for the purpose of assisting Participants covered by the Plan in finding employment outside of the Employing Company which provides for the following services: (a) self assessment, career decision and goal setting; (b) job market research and job sources; (c) networking and interviewing skills; (d) planning and implementation strategy; (e) resume writing, job hunting methods and salary negotiation; and (f) office support and job search resources. 2.15 "Employing Company" shall mean the Company, or any other Southern Subsidiary, 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. 2.16 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 2.17 "Good Reason" shall mean, without an Employee's express written consent, after written notice to his Employing Company, and after a thirty (30) day opportunity for the Employee's Employing Company to cure, the continuing occurrence of any of the following events: (a) Inconsistent Duties. A meaningful and detrimental alteration in the Employee's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (b) Reduced Salary. A reduction of five percent (5%) or more by the Employing Company in either of the following: (i) the Employee's annual base salary rate for the twelve month period immediately preceding the date of the Change in Control ("Base Salary") (except for a less than ten percent (10%), across-the-board Base Salary reduction similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company); or (ii) the sum of the Employee's Base Salary plus target bonus under his Employing Company's short term bonus plan (e.g., either the PPP Plan or the Southern Energy, Inc. Short Term Plan, as the case may be), as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board reduction of Base Salary plus target bonus under such short term plan similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company); (c) Compensation Plans. The failure by the Employing Company to continue in effect any "compensation plan or agreement" in which an Employee participates as of the date of the Change in Control or the elimination of the Employee's participation in any such plan, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company); For purposes of this Section 2.17(c), the "compensation plan or agreement" shall mean any written arrangement executed by an authorized officer of the Employing Company which provides for periodic, non-discretionary compensatory payments to employees in the nature of bonuses. (d) Relocation. A change in an Employee's work location to a location more than fifty (50) miles from the facility where the Employee was located at the time of the Change in Control, unless such new work location is within fifty (50) miles from the Employee's principal place of residence at the time of the Change in Control. The acceptance, if any, by an Employee of employment by an Employing Company at a work location which is outside the fifty mile radius set forth in this Section 2.17(d) shall not be a waiver of the Employee's right to refuse subsequent transfer by an Employing Company to a location which is more than fifty (50) miles from the Employee's principal place of residence at the time of the Change in Control, and such subsequent, unconsented transfer shall be "Good Reason" under this Agreement; or (e) Benefits and Perquisites. The taking of any action by the Employing Company that would directly or indirectly materially reduce the benefits enjoyed by an Employee under the Employing Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which the Employee was participating immediately prior to the Change in Control, or the failure by the Employing Company to provide an Employee with the number of paid vacation days to which the Employee is entitled on the basis of years of service with the Employing Company in accordance with the Employing Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of all Employees of the Employing Company). 2.18 "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. 2.19 "Group Health Plan" shall mean the group health plan covering the Participant, as such plan may be amended from time to time. 2.20 "Group Life Insurance Plan" shall mean the group life insurance program covering the Participant, as such plan may be amended from time to time. 2.21 "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. 2.22 "Month of Service" shall mean any calendar month during which a Participant has worked at least one (1) hour or was on approved leave of absence while in the employ of an Employing Company or any other Southern Subsidiary. 2.23 "Participant" shall mean an Employee who meets the eligibility requirements of Section 3.1 of this Plan. 2.24 "Pension Plan" shall mean The Southern Company Pension Plan or any successor thereto, as such plans may be amended from time to time. 2.25 "Performance Dividend Plan" or "PDP Plan" shall mean the Southern Company Performance Dividend Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.25 thereof, as such plans may be amended from time to time. 2.26 "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.31 thereof, as such plans may be amended from time to time. 2.27 "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.33 thereof, as such plans may be amended from time to time. 2.28 "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Exchange Act. 2.29 "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or any successor thereto which is considered an "equitable arrangement" under Section 1.30 thereof, as such plans may be amended from time to time. 2.30 "Plan" shall mean the Southern Company Executive Change in Control Severance Plan. 2.31 "Short Term Plan" shall mean the Southern Energy Resources, Inc. Short Term Plan, as amended from time to time. 2.32 "Southern" shall mean The Southern Company, its successors and assigns. 2.33 "Southern Board" shall mean the board of directors of Southern. 2.34 "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. 2.35 "Termination for Cause" or "Cause" shall mean an Employee's termination of employment with his Employing Company upon the occurrence of any of the following: (a) The willful and continued failure by the Employee to substantially perform his duties with his Employing Company (other than any such failure resulting from the Employee's Total Disability or from the Employee's retirement or any such actual or anticipated failure resulting from termination by the Employee for Good Reason) after a written demand for substantial performance is delivered to him by the Administrative Committee, which demand specifically identifies the manner in which the Administrative Committee believes that he has not substantially performed his duties; or (b) The willful engaging by the Employee in conduct that is demonstrably and materially injurious to his Employing Company, monetarily or otherwise, including but not limited to any of the following: (i) any willful act involving fraud or dishonesty in the course of an Employee's employment by his Employing Company; (ii) the willful carrying out of any activity or the making of any statement by an Employee which would materially prejudice or impair the good name and standing of his Employing Company, Southern or any other Southern Subsidiary or would bring his Employing Company, Southern or any other Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which his Employing Company, Southern or such other Southern Subsidiary is located; (iii) attendance by an Employee at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (iv) violation of his Employing Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Employing Company's safety officer; (v) assault or other act of violence by an Employee against any person during the course of employment; or (vi) an Employee's indictment for any felony or any misdemeanor involving moral turpitude. No act or failure to act by an Employee shall be deemed "willful" unless done, or omitted to be done, by the Employee not in good faith and without reasonable belief that his action or omission was in the best interest of his Employing Company. Notwithstanding the foregoing, an Employee shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of the majority of the Administrative Committee at a meeting called and held for such purpose (after reasonable notice to the Employee and an opportunity for him, together with counsel, to be heard before the Administrative Committee), finding that, in the good faith opinion of the Administrative Committee, the Employee was guilty of conduct set forth in Section 2.35(a) or (b) hereof and specifying the particulars thereof in detail. 2.36 "Termination Date" shall mean the date on which a Participant is separated from his Employing Company's regular payroll; provided, however, that solely for purposes of Section 3.2(c) hereof, the Termination Date of Participants who are deemed to be retired pursuant to the provisions of Section 3.3 hereof, shall be the effective date of their retirement pursuant to the terms of the Pension Plan. 2.37 "Total Disability" shall mean total disability within the meaning of the Pension Plan. 2.38 "Value Creation Plan" shall mean the Southern Energy Resources, Inc. Value Creation Plan or any replacement thereto which is considered an "equitable arrangement" under Section 1.30 thereof, as such plans may be amended from time to time. 2.39 "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. 2.40 "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. 2.41 "Year of Service" shall mean an Employee's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If an Employee has a break in his service with his Employing Company, he will receive credit under this Plan for the service prior to the break in service only if the break in service was less than five years and his service prior to the break exceeds the length of the break in service. ARTICLE 3 - SEVERANCE BENEFITS 3.1 Eligibility. Except as otherwise provided herein, any Employee whose employment is involuntarily terminated by his Employing Company at any time during the two year period following a Change in Control of Southern or his Employing Company for reasons other than Cause or who shall voluntarily terminate his employment with his Employing Company for Good Reason at any time during the two year period following a Change in Control of Southern or his Employing Company shall be entitled to participate in this Plan and receive the benefits described in Section 3.2 hereof, subject to the terms and conditions described in this Article 3. Notwithstanding anything to the contrary herein, an Employee shall not be eligible to receive benefits under this Plan if the Employee: (a) is not actively at work on his Termination Date, unless such Employee is capable of returning to work within twelve (12) weeks of the beginning of any leave of absence from work; (b) voluntarily terminates his employment with his Employing Company for other than Good Reason; (c) is terminated by his Employing Company for Cause; (d) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that acquires all or substantially all of the assets of Southern, a Southern Subsidiary or his Employing Company; (e) refuses an offer of continued employment with his Employing Company, Southern or a Southern Subsidiary, or any employer that acquires all or substantially all of the assets of Southern, a Southern Subsidiary or his Employing Company, under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment and such employer agrees to adopt this Plan as it applies to such Participant; or (f) elects to receive the benefits of any other voluntary or involuntary severance, separation or outplacement program maintained by his Employing Company; provided however, that the receipt of benefits under any retention plan or agreement shall not be deemed to be the receipt of benefits under any severance, separation or outplacement program for purposes of this Plan. 3.2 Benefits. Upon the Employing Company's receipt of an effective Waiver and Release, Participants shall be entitled to receive the following benefits: (a) Employee Outplacement Services. Each Participant shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from the Participant's Termination Date. (b) Severance Benefit. Participants shall be paid in cash an amount equal to two times the Participant's Annual Compensation, but not in excess of the Capped Amount. For purposes of this Section 3.2(b), the Capped Amount shall be the amount otherwise payable under this Section 3.2(b), reduced in such amount and to such extent that no amount of the payment under this Section 3.2(b), plus all other "parachute payments" under Code Section 280G, would constitute an "excess parachute payment" under Code Section 280G, but only to the extent that if the payment under this Section 3.2(b) were increased by one additional dollar ($1.00), a portion of the payment under this Section 3.2(b) would be an "excess parachute payment" under Code Section 280G. The calculation of the Capped Amount and any other determinations relating to the applicability of Code Section 280G (and the rules and regulations promulgated thereunder) to the payments contemplated by this Plan shall be made by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such determinations shall be binding upon the Participants, Southern and the Employing Company. (c) Welfare Benefit. (i) Except as provided in Section 3.3 hereof, each Participant shall be eligible to participate in the Employing Company's Group Health Plan for a period of six (6) months for each of the Participant's Years of Service, not to exceed a period of five (5) years, beginning on the first day of the first month following the Participant's Termination Date unless otherwise specifically provided under such plan, upon the Participant's payment of both the Employing Company's and the Participant's premium under such plan. A Participant who receives this extended medical coverage shall also be entitled to elect coverage under the Group Health Plan for his dependents who are participating in the Group Health Plan on the Participant's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of the Participant's extended medical coverage under this Section 3.2(c) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (ii) The extended medical coverage afforded to a Participant pursuant to this Section 3.2(c) as well as the premiums to be paid by the Participant in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by the Participant in connection with this extended coverage shall be due on the first day of each month; provided, however, that if a Participant fails to pay his premium within thirty (30) days of its due date, such Participant's extended coverage shall be terminated. (iii) Any Group Health Plan coverage provided under this Section 3.2(c) shall be a part of and not in addition to any COBRA Coverage which a Participant or his dependent may elect. In the event that a Participant or his dependent becomes eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Employing Company's Group Health Plan available to the Participant or his dependent by virtue of the provisions of this Article 3 shall terminate, except as may otherwise be required by law, and shall not be renewed. It shall be the duty of a Participant to inform the Employing Company of his eligibility to participate in any such health plan. (iv) Except as otherwise provided in Section 3.3 hereof, regardless of whether a Participant elects the extended coverage described in Section 3.2(a) hereof, the Employing Company shall pay to each Participant a cash amount equal to the Employing Company's and the Participant's cost of premiums for two (2) years of coverage under the Group Health Plan and Group Life Insurance Plan, as such Plans were in effect as of the date of the Change in Control. (d) Stock Option Vesting. The provisions of this Section 3.2(d) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Stock Plan, the defined terms of which are incorporated in this Section 3.2(d) by reference. (i) Any of the Participant's Options and Stock Appreciation Rights outstanding as of the Termination Date which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Participant holding a Stock Appreciation Right who is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to the Participant under Section 16(b) of the Exchange Act, provided further that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (ii) The restrictions and deferral limitations applicable to any of the Participant's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (iii) The restrictions and deferral limitations and other conditions applicable to any other Awards held by the Participant under the Performance Stock Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (e) Performance Pay Plan. The provisions of this Section 3.2(e) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Pay Plan, the defined terms of which are incorporated in this Section 3.2(e) by reference. Provided the Participant is not entitled to benefits under Article V of the PPP Plan, if the PPP Plan is in place as of the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Award under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (f) PIP Plan. The provisions of this Section 3.2(f) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the PIP Plan, the defined terms of which are incorporated in this Section 3.2(f) by reference. Provided the Participant is not entitled to benefits under Article IV of the PIP Plan, if the PIP Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his Award Opportunity under the PIP Plan for the Computation Periods in which the Termination Date shall have occurred, at a target Value of Performance Unit of $1.00, prorated for each Performance Period by the number of months which have passed since the beginning of each of the Computation Periods until the Termination Date. (g) Performance Dividend Plan. The provisions of this Section 3.2(g) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Performance Dividend Plan, the defined terms of which are incorporated in this Section 3.2(g) by reference. Provided the Participant is not entitled to benefits under Article V of the Performance Dividend Plan, if the Performance Dividend Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash for each Award held as of such date based on a Payout Percentage of 50% under Section 4.1 of the Performance Dividend Plan for the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (h) Value Creation Plan. The provisions of this Section 3.2(h) shall apply to any Participant who, as of the date of the Change in Control, was a participant in the Value Creation Plan, the defined terms of which are incorporated in this Section 3.2(h) by reference. Any of the Participant's Appreciation Rights or Indexed Rights outstanding as of the Termination Date which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant. Notwithstanding anything in the Value Creation Plan to the contrary, Share Value with respect to any Appreciation Rights or Indexed Rights held by the Participant following his Termination Date shall be no less than the Share Value as of the date of the Change in Control of Southern or his Employing Company, as the case may be. (i) Short Term Plan. The provisions of this Section 3.2(i) shall apply to any Participant who, as of the date of the Change in Control was a Participant in the Short Term Plan, the defined terms of which are incorporated in this Section 3.2(i) by reference. Provided the Participant is not entitled to benefits under Article V of the Short Term Plan, if the Short Term Plan is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his Award under the Short Term Plan for the Performance Period in which the Termination Date shall have occurred, at Total Target for the Participant's Job Category and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (j) Other Short Term Incentive Plans. The provisions of this Section 3.2(j) shall apply to any Participant who, as of the date of the Change in Control is a participant in any other "short term incentive compensation plan" not otherwise previously referred to in this Section 3.2. Provided the Participant is not otherwise entitled to a plan payout under any change in control provisions of such plans, if the "short term incentive compensation plan" is in place through the Participant's Termination Date and to the extent the Participant is entitled to participate therein, the Participant shall be entitled to receive cash in an amount equal to his award under his respective Employing Company's "short term incentive compensation plan" for the annual performance period in which the Termination Date shall have occurred, at the Participant's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until the Termination Date. For purposes of this Section 3.2(j), the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by an Employing Company which provides for annual, recurring compensatory bonuses to participants based upon articulated performance criteria, and which have been identified by the Board of Directors and listed on Exhibit C hereto, which may be amended from time to time to reflect plan additions, terminations and amendments. 3.3 Coordination with Retiree Medical and Life Insurance Coverage. Notwithstanding anything to the contrary above, any Participant who is otherwise eligible to retire pursuant to the terms of the Pension Plan shall be deemed to have retired for purposes of all employee benefit plans sponsored by the Employing Company of which the Participant is a participant. A Participant who is deemed to have retired in accordance with the preceding sentence shall not be eligible to receive the benefits described in Section 3.2(c) hereof if, upon his Termination Date, such Participant becomes eligible to receive the retiree medical and life insurance coverage provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan. 3.4 Payment of Benefits. The amounts due a Participant under Sections 3.2(b) and (c) hereof shall be payable in one (1) lump sum payment as soon as administratively practicable within thirty (30) days of the later of the following to occur: (a) the Participant's Termination Date, or (b) the tender to the Employing Company by the Participant of an effective Waiver and Release in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Employing Company. 3.5 Benefits in the Event of Death. In the event of the Participant's death prior to the payment of all benefits due under this Article 3, the Participant's estate shall be entitled to receive as due any amounts not yet paid under this Article 3 upon the tender by the executor or administrator of the estate of an effective Waiver and Release. 3.6 Legal Fees. In the event of a dispute between a Participant and his Employing Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in the Participant's favor, his Employing Company shall reimburse the Participant's legal fees incurred with respect to all issues in such dispute in an amount not to exceed thirty thousand dollars ($30,000). 3.7 No Mitigation. A Participant who receives benefits under Section 3.2 of this Plan shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Subsection 3.1(d) hereof, the amounts due a Participant hereunder shall not be reduced or suspended if such Participant accepts such subsequent employment. 3.8 Non-qualified Retirement and Deferred Compensation Plans. Subsequent to a Change in Control, any claims by a Participant for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the procedures and provisions set forth in Article 5 hereof and if any material issue in such dispute is finally resolved in the Participant's favor, the Company shall reimburse the Participant's legal fees in the manner provided in Section 3.6 hereof. ARTICLE 4 - ADMINISTRATION 4.1 Administrative Committee. The Administrative Committee shall be responsible for the general administration of the Plan and may appoint other persons or entities to perform or assist in the performance of any of its duties, subject to its review and approval. The Administrative Committee shall have the right to remove any such appointee from his position without cause upon notice. ARTICLE 5 - ARBITRATION 5.1 General. Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Plan, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Article 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to a Participant's employment by an Employing Company or the termination thereof. 5.2 Demand for Arbitration. Arbitration shall be initiated by serving a written notice of demand for arbitration to the Participant, in the case of an Employing Company, or to the Administrative Committee, in the case of a Participant. 5.3 Law and Venue. The arbitrators shall apply the laws of the State of Georgia, except to the extent pre-empted by federal law, excluding any law which would require the use of the law of another state. The arbitration shall be held in Atlanta, Georgia. 5.4 Appointment of Arbitrators. Arbitrators shall be appointed within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by the Participant, one arbitrator shall be appointed by the Employing Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. 5.5 Costs. The arbitration filing fee shall be paid by the Participant. All other costs of arbitration shall be borne equally by the Participant and his Employing Company, provided, however, that such Employing Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in the Participant's favor and the Participant is reimbursed legal fees under Section 3.6 hereof. 5.6 Interim and Injunctive Relief. Nothing in this Article 5 is intended to preclude, upon application of either party, any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to either party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Article 5 and nothing herein is intended to prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Article 5. ARTICLE 6 - MISCELLANEOUS 6.1 Funding of Benefits. Unless the Board of Directors shall in its discretion determine otherwise, the benefits payable to a Participant under the Plan shall not be funded in any manner and shall be paid by the Employing Companies out of their general assets, which assets are subject to the claims of the Employing Companies' creditors. 6.2 Withholding. There shall be deducted from the payment of any benefit due under the Plan the amount of any tax required by any governmental authority to be withheld and paid over by the Employing Companies to such governmental authority for the account of the Participant entitled to such payment. 6.3 Assignment. No Participant or beneficiary shall have any rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. 6.4 Amendment and Termination. The Plan may be amended or terminated at any time by the Board of Directors, provided, however, the Plan may not be amended in any material respect or terminated within the two (2) year period following a Change in Control nor shall any amendment or termination impair the rights of any Participant which have accrued hereunder prior to any such amendment or termination. 6.5 Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Plan, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Plan which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Plan, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, this Southern Company Executive Change in Control Severance Plan has been executed by the Company through its duly authorized officer, this ____ day of ___________, 1999, to be effective as provided herein. SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ Christopher C. Womack Senior Vice President Exhibit A SOUTHERN COMPANY EXECUTIVE CHANGE IN CONTROL SEVERANCE PLAN Market Level Target Annual Bonus For the following companies: Alabama Power Company Georgia Power Company Gulf Power Company Mississippi Power Company Savannah Electric & Power Company Southern Company Services, Inc. Southern Nuclear Operating Company, Inc. Southern Communications Services, Inc. Southern Company Energy Solutions, Inc. Target based on grade level. Grade Target (as a percent of base salary rate) 10 25% 11 30% 12 35% 13 40% For the following companies: Southern Energy Resources, Inc. Vice President or large business unit head. Target (as a percent of base salary rate) 40% Exhibit B SOUTHERN COMPANY EXECUTIVE CHANGE IN CONTROL SEVERANCE PLAN Waiver and Release I understand that I am entitled to receive the Severance Benefits described in Article 3 of the Southern Company Executive Change in Control Severance Plan (the "Plan") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I have elected to receive under the Plan are in excess of those I would have received from ________________________ (the "Company") if I had not elected to participate in the Plan and sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. I understand and agree that I am obligated to keep confidential and not disclose the terms of this Waiver, including, but not limited to, the benefits under this Plan, except to my attorneys, financial advisors, or except where such disclosure is required by law. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to any vested or accrued benefits that I have under any workers' compensation laws or any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company except for programs specifically designed for participants in the Plan. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to forty-five (45) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this day of , in the year. Employee's signature Employee's printed name Acknowledged and Accepted by the Administrative Committee of the Southern Company Executive Change in Control Severance Plan. By: Date: Attachment to Exhibit B TO: All Eligible Employees under the Southern Company Executive Change in Control Severance Plan FROM: _____________________ RE: ADEA Information Notice DATE: _____________________ A severance plan known as the Southern Company Executive Change in Control Severance Plan ("Plan") has been approved and established by The Southern Company, its affiliates and its direct and indirect subsidiaries (collectively the "Company"). You are eligible to participate in the Plan subject to the terms of the Plan. In accordance with the Age Discrimination in Employment Act ("ADEA"), the Company is providing you the following information pertaining to eligibility and participation in the Plan. o The purpose of the Plan is to provide benefits to certain key employees of The Southern Company and certain subsidiaries of The Southern Company ("Employing Companies") whose employment is terminated subsequent to a change in control of The Southern Company or their respective Employing Company. o Each active exempt and non-exempt employee of an Employing Company of Grade 10 to 13 (or, if the Grade System is not used, $130,000 or more of annual base salary rate for the 12 month period immediately preceding the change in control) not covered by a collective bargaining agreement is generally eligible to participate in the Plan if, during the two year period following a change in control: (i) his employment is involuntarily terminated for reasons other than cause, or (ii) he voluntarily terminates employment for good reason. o All eligible employees may receive severance benefits under the Plan by signing a Waiver and Release no later than 45 calendar days from the date it is received. The Waiver and Release will remain revocable by you for a seven day period after you sign it. o Attached is a list sorted by job title and age of each employee eligible to participate in the Plan as well as a list of the ages of all employees in the same job classification who are not eligible to participate in the Plan. In furtherance of you making an informed decision, the Company urges you to seek a financial advisor, legal counsel and a qualified tax advisor to assist you in fully understanding your rights and benefits under the plan and the Waiver and Release that you will be required to sign to receive severance benefits under the Plan. If you have any questions or need additional information, please call me at _______________. Sincerely, - - - - - - - ---------------------- [Name] - - - - - - - ---------------------- [Title] ADEA INFORMATION NOTICE - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- Job Title, Classification Age of or Category of Eligible Employees Eligible Employees - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- [List job classification, title or category of all [List corresponding age of each eligible employee] eligible employees] - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- Job Title, Classification Age of or Category of Ineligible Employees Ineligible Employees - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- - - - - - - - ------------------------------------------------------------ --------------------------------------------------------- [List job classification, title or category of all [List corresponding age of each ineligible employee] ineligible employees] - - - - - - - ------------------------------------------------------------ ---------------------------------------------------------
Exhibit C SOUTHERN COMPANY EXECUTIVE CHANGE IN CONTROL SEVERANCE PLAN Short Term Incentive Compensation Plans EX-10.A.80 17 EXHIBIT 10(a)80 DEFERRED COMPENSATION AGREEMENT THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Georgia Power Company (the "Company") and Henry Allen Franklin ("Mr. Franklin"). W I T N E S S E T H: WHEREAS, Mr. Franklin is the Chief Executive Officer of the Company; WHEREAS, the Company and Southern wish to encourage Mr. Franklin to increase the profitability of the Company and to provide Mr. Franklin an interest in the Company's overall profitability; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. General Nature of Award. Subject to the terms and conditions of this Agreement, the Company shall establish and maintain on behalf of Mr. Franklin an account on the Company's books and records (the "Account") which, if Mr. Franklin continues to be an employee of the Company, or any affiliate or subsidiary of Southern (as set forth in Paragraph 15 hereof), shall entitle Mr. Franklin to receive on the fifth anniversary date of the effective date of this Agreement (such five year period to be referred to as the "Performance Period") an amount equal to the then Market Value (as defined below) of the equivalent of Five Hundred Thousand Dollars ($500,000) of Market Value of Southern's common stock deemed to have been purchased as of the effective date of this Agreement, including reinvested dividends thereon, increased, if certain profitability goals are met, by estimated income tax expenses. 2. Investment. (a) As of the date hereof, the Company shall credit to Mr. Franklin's Account that number of deemed shares (including fractional shares) of Southern's common stock ("Common Stock") as shall equal $500,000 in Market Value (as defined herein) determined as of the effective date of this Agreement (such hypothetical shares to be referred to herein as the "Phantom Stock"). For purposes of this Agreement, "Market Value" shall mean the average closing price of the Common Stock as reported by the New York Stock Exchange for the ten trading days immediately preceding the respective valuation date. (b) As of the day of each calendar quarter in which occurs the payment of dividends on Common Stock, there shall be credited to Mr. Franklin's Account such additional shares of Phantom Stock (including fractional shares) as could have been purchased at the Market Value on such day as follows: (i) In the case of cash dividends, such additional shares of Phantom Stock as could have been purchased with the dividends payable on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend; (ii) In the case of dividends payable in property other than cash or Common Stock, such additional shares of Phantom Stock as could have been purchased with the fair market value of the property which would have been payable as dividends on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend; or (iii) In the case of dividends payable in Common Stock, such additional shares of Phantom Stock as would have been payable on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend. (c) In the event that the number of outstanding shares of Common Stock is changed through merger, consolidation, reorganization, recapitalization, reincorporation, stock split, stock dividend (in excess of 2%) or other change in the capital structure of Southern without consideration, or upon the occurrence of any other extraordinary corporate event involving the Common Stock causing a reduction in the value of the Common Stock, such as a corporate spin off or split up, the number of shares of Common Stock credited to the Account shall be proportionately adjusted by the Company so as to preserve the value of the Account immediately prior to such event. 3. Vesting of Account. The Market Value of Mr. Franklin's Account shall vest on the fifth anniversary of the effective date of this Agreement (the "Vesting Date"), provided Mr. Franklin is then an employee of the Company, Southern, or an affiliate or subsidiary of Southern. 4. Valuation of Account. The value of Mr. Franklin's Account on any date shall be based on the Market Value on such date multiplied by the number of shares of Phantom Stock then credited to the Account, provided, however, that if the annual profitability goals established for the Company and for Mr. Franklin by the Chief Executive Officer of Southern have been equaled or exceeded for each fiscal year of the Company during the Performance Period as set forth on Exhibit A, and as annually documented on Exhibit B of this Agreement, (the "Profitability Goals"), the value of the Account shall be increased upon payout to cover Mr. Franklin's federal and state income tax expense as reasonably estimated by the Company for the year of payout (the "Tax Gross-up"). Failure to meet the Profitability Goals for any year of the Performance Period shall result in the forfeiture of the Tax Gross-up, provided, however, that Southern's Chief Executive Officer may, in his sole discretion, determine after the close of the Performance Period, that as a result of overall Company profitability and individual performance during the entire Performance Period, that all or a portion of the value of the Tax Gross-up shall nevertheless be paid. For purposes of this Paragraph 4, in the event that Mr. Franklin shall become Southern's Chief Executive Officer, the goals and determinations hereunder shall be made by the Compensation Committee of Southern's Board of Directors. 5. Payment of Account Balance. Provided that Mr. Franklin is then an employee of the Company, Southern, or an affiliate or subsidiary of Southern, and, with respect to the Tax Gross-up amount, has also achieved the Profitability Goals, the Company shall pay to Mr. Franklin the value of his Account, and, if applicable, the Tax Gross-up amount, in cash within ten (10) days of the Vesting Date. 6. Election to Defer. By written election filed with Southern's Vice President, Human Resources no less than thirteen (13) months prior to the Vesting Date, Mr. Franklin may defer all or a portion of the amount to be received under this Agreement by having such amount contributed on his account to The Southern Company Deferred Compensation Plan, in accordance with the terms and conditions of such Plan. 7. Death, Permanent Disability, Termination Without Cause or Termination for Good Reason. In the event of Mr. Franklin's termination of employment with the Company prior to the payout of the value of the Account for reasons of death, permanent disability, termination by the Company without Cause, or termination by Mr. Franklin for Good Reason following a Change in Control, the Company shall pay to Mr. Franklin, or his estate in the event of death, the value of the Account determined as of the date of such termination, plus, if the Profitability Goals have been met as of such date, the Tax Gross-up amount. For purposes of this Section 7, the terms Cause, Change in Control, and Good Reason shall have the meaning set forth in that certain Change in Control Agreement, dated _________________, 1999, as amended from time to time, between Southern, the Company and Mr. Franklin (the "Change in Control Agreement"), the defined terms of which are incorporated in this Section 7 by reference thereto. 8. Assignability. Neither Mr. Franklin, his estate, his beneficiaries, nor his legal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments of this Agreement shall be void and have no effect. 9. Unsecured General Creditor. The Company shall neither reserve nor specifically set aside funds for the payment of its obligations under this Agreement, and such obligations shall be paid solely from the general assets of the Company. Notwithstanding that Mr. Franklin may be entitled to receive the value of his Account under the terms and conditions of this Agreement, the assets from which such amount may be paid shall at all times be subject to the claims of the Company's creditors. 10. Amendment; Modification; Termination. Except as otherwise provided herein, this Agreement may be amended, modified, or terminated only by a writing executed by the parties hereto. 11. No Effect On Other Arrangements. It is expressly understood and agreed that the payments made in accordance with this Agreement are in addition to any other benefits or compensation to which Mr. Franklin may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Company. 12. Tax Withholding. There shall be deducted from each payment under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Franklin. 13. Compensation. Any compensation contributed on behalf of Mr. Franklin under this Agreement shall not be considered "compensation," as the term is defined in The Southern Company Employee Savings Plan, The Southern Company Employee Stock Ownership Plan, or The Southern Company Pension Plan. Distributions from Mr. Franklin's Account shall not be considered wages, salaries or compensation under any other employee benefit plan. 14. No Guarantee of Employment. No provision of this Agreement shall be construed to affect in any manner the existing rights of the Company to suspend, terminate, alter, modify, whether or not for Cause, the employment relationship of Mr. Franklin and the Company. 15. Transfer of Employment to Southern or a Southern Subsidiary of Affiliate. In the event that Mr. Franklin's employment by the Company is terminated during the Performance Period and Mr. Franklin shall become immediately re-employed by Southern or a subsidiary or an affiliate of Southern, the Company shall assign this Agreement to Southern or such subsidiary or affiliate, Southern shall accept such assignment or cause such affiliate or subsidiary to accept such assignment, such assignee shall become the "Company" for all purposes hereunder and the profitability goals set forth on Exhibit A hereof shall be amended to appropriately reflect the performance of such assignee. In the event of such assignment, the expense of this Agreement shall be shared pro rata by the Company and any such assignee based upon the number of months during the Performance Period Mr. Franklin was employed by each. 16. Southern Company Change in Control Agreement. The benefits provided for herein are intended to be in addition to any benefits to which Mr. Franklin may otherwise be entitled under the terms of the Change in Control Agreement. 17. Governing Law. This Agreement, and all its rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. IN WITNESS WHEREOF, this Agreement has been executed by the parties first listed above, effective this 27th day of February, 1998. THE SOUTHERN COMPANY By: ______________________________ GEORGIA POWER COMPANY By: Mr. FRANKLIN Henry Allen Franklin Attest: By: Exhibit A Deferred Compensation Agreement Schedule of Profitability Goals For Performance Period The Company shall achieve a rate of return which is equal to or above the median of the Goldman Sachs comparator group of 77 utility companies for each of the Company's fiscal years included in the Performance Period, excluding extraordinary events occurring during any such fiscal years subject to the approval of the Chief Executive Officer of The Southern Company. Achievement of the goals shall be assessed annually by the Chief Executive Officer of The Southern Company and documented in Exhibit B of this Agreement. Exhibit B Deferred Compensation Agreement Annual Documentation of Profitability Goals For Performance Period EX-10.A.81 18 EXHIBIT 10(a)81 DEFERRED COMPENSATION AGREEMENT THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Nuclear Operating Company, Inc. (the "Company") and William G. Hairston III ("Mr. Hairston"). W I T N E S S E T H: WHEREAS, Mr. Hairston is the Chief Executive Officer of the Company; WHEREAS, the Company and Southern wish to encourage Mr. Hairston to increase the performance of the Company and to provide Mr. Hairston an interest in Southern's overall profitability; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. General Nature of Award. Subject to the terms and conditions of this Agreement, the Company shall establish and maintain on behalf of Mr. Hairston an account on the Company's books and records (the "Account") which, if Mr. Hairston continues to be an employee of the Company, or any affiliate or subsidiary of Southern (as set forth in Paragraph 15 hereof), shall entitle Mr. Hairston to receive on the fifth anniversary date of the effective date of this Agreement (such five year period to be referred to as the "Performance Period") an amount equal to the then Market Value (as defined below) of the equivalent of Two Hundred Fifty Thousand Dollars ($250,000) of Market Value of Southern's common stock deemed to have been purchased as of the effective date of this Agreement, including reinvested dividends thereon, increased, if certain performance goals are met, by estimated income tax expenses. 2. Investment. (a) As of the date hereof, the Company shall credit to Mr. Hairston's Account that number of deemed shares (including fractional shares) of Southern's common stock ("Common Stock") as shall equal $250,000 in Market Value (as defined herein) determined as of the effective date of this Agreement (such hypothetical shares to be referred to herein as the "Phantom Stock"). For purposes of this Agreement, "Market Value" shall mean the average closing price of the Common Stock as reported by the New York Stock Exchange for the ten trading days immediately preceding the respective valuation date. (b) As of the day of each calendar quarter in which occurs the payment of dividends on Common Stock, there shall be credited to Mr. Hairston's Account such additional shares of Phantom Stock (including fractional shares) as could have been purchased at the Market Value on such day as follows: (i) In the case of cash dividends, such additional shares of Phantom Stock as could have been purchased with the dividends payable on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend; (ii) In the case of dividends payable in property other than cash or Common Stock, such additional shares of Phantom Stock as could have been purchased with the fair market value of the property which would have been payable as dividends on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend; or (iii) In the case of dividends payable in Common Stock, such additional shares of Phantom Stock as would have been payable on the number of shares of Phantom Stock credited to the Account immediately prior to the dividend. (c) In the event that the number of outstanding shares of Common Stock is changed through merger, consolidation, reorganization, recapitalization, reincorporation, stock split, stock dividend (in excess of 2%) or other change in the capital structure of Southern without consideration, or upon the occurrence of any other extraordinary corporate event involving the Common Stock causing a reduction in the value of the Common Stock, such as a corporate spin off or split up, the number of shares of Common Stock credited to the Account shall be proportionately adjusted by the Company so as to preserve the value of the Account immediately prior to such event. 3. Vesting of Account. The Market Value of Mr. Hairston's Account shall vest on the fifth anniversary of the effective date of this Agreement (the "Vesting Date"), provided Mr. Hairston is then an employee of the Company, Southern, or an affiliate or subsidiary of Southern. 5. Payment of Account Balance. Provided that Mr. Hairston is then an employee of the Company, Southern, or an affiliate or subsidiary of Southern, and, with respect to the Tax Gross-up amount, has also achieved the Performance Goals, the Company shall pay to Mr. Hairston the value of his Account, and, if applicable, the Tax Gross-up amount, in cash within ten (10) days of the Vesting Date. 4. Valuation of Account. The value of Mr. Hairston's Account on any date shall be based on the Market Value on such date multiplied by the number of shares of Phantom Stock then credited to the Account, provided, however, that if the annual performance goals established for the Company and for Mr. Hairston by the Chief Executive Officer of Southern have been equaled or exceeded for each fiscal year of the Company during the Performance Period as set forth on Exhibit A, and as annually documented on Exhibit B of this Agreement, (the "Performance Goals"), the value of the Account shall be increased upon payout to cover Mr. Hairston's federal and state income tax expense as reasonably estimated by the Company for the year of payout (the "Tax Gross-up"). Failure to meet the Performance Goals for any year of the Performance Period shall result in the forfeiture of the Tax Gross-up, provided, however, that Southern's Chief Executive Officer may, in his sole discretion, determine after the close of the Performance Period, that as a result of overall Company performance and individual performance during the entire Performance Period, that all or a portion of the value of the Tax Gross-up shall nevertheless be paid. 6. Election to Defer. By written election filed with Southern's Vice President, Human Resources no less than thirteen (13) months prior to the Vesting Date, Mr. Hairston may defer all or a portion of the amount to be received under this Agreement by having such amount contributed on his account to The Southern Company Deferred Compensation Plan, in accordance with the terms and conditions of such Plan. 7. Death, Permanent Disability and Termination Without Cause. In the event of Mr. Hairston's termination of employment with the Company prior to the payout of the value of the Account for reasons of death, permanent disability or termination by the Company without Cause (as defined below), the Company shall pay to Mr. Hairston, or his estate in the event of death, the value of the Account determined as of the date of such termination, plus, if the Performance Goals have been met as of such date, the Tax Gross-up amount. As used in this Agreement, the term "cause" shall mean gross negligence or willful misconduct in the performance of the duties and services required in the course of employment by the Company, the final conviction of a felony or misdemeanor involving moral turpitude, the carrying out of any activity or the making of any statement which would prejudice the good name and standing of the Company or would bring the Company into contempt, ridicule or would reasonably shock or offend any community in which the Company is located, or a material breach of the fiduciary obligations owed by an officer and an employee to the Company. 8. Assignability. Neither Mr. Hairston, his estate, his beneficiaries, nor his legal representative shall have any rights to commute, sell, assign, transfer or otherwise convey the right to receive any payments hereunder, which payments and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to assign or transfer the right to payments of this Agreement shall be void and have no effect. 9. Unsecured General Creditor. The Company shall neither reserve nor specifically set aside funds for the payment of its obligations under this Agreement, and such obligations shall be paid solely from the general assets of the Company. Notwithstanding that Mr. Hairston may be entitled to receive the value of his Account under the terms and conditions of this Agreement, the assets from which such amount may be paid shall at all times be subject to the claims of the Company's creditors. 10. Amendment; Modification; Termination. Except as otherwise provided herein, this Agreement may be amended, modified, or terminated only by a writing executed by the parties hereto. 11. No Effect On Other Arrangements. It is expressly understood and agreed that the payments made in accordance with this Agreement are in addition to any other benefits or compensation to which Mr. Hairston may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Company. 12. Tax Withholding. There shall be deducted from each payment under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Hairston. 13. Compensation. Any compensation contributed on behalf of Mr. Hairston under this Agreement shall not be considered "compensation," as the term is defined in The Southern Company Employee Savings Plan, The Southern Company Employee Stock Ownership Plan, or The Southern Company Pension Plan. Distributions from Mr. Hairston's Account shall not be considered wages, salaries or compensation under any other employee benefit plan. 14. No Guarantee of Employment. No provision of this Agreement shall be construed to affect in any manner the existing rights of the Company to suspend, terminate, alter, modify, whether or not for Cause, the employment relationship of Mr. Hairston and the Company. 15. Transfer of Employment to Southern or a Southern Subsidiary of Affiliate. In the event that Mr. Hairston's employment by the Company is terminated during the Performance Period and Mr. Hairston shall become immediately re-employed by Southern or a subsidiary or an affiliate of Southern, the Company shall assign this Agreement to Southern or such subsidiary or affiliate, Southern shall accept such assignment or cause such affiliate or subsidiary to accept such assignment, such assignee shall become the "Company" for all purposes hereunder and the performance goals set forth on Exhibit A hereof shall be amended to appropriately reflect the performance of such assignee. In the event of such assignment, the expense of this Agreement shall be shared pro rata by the Company and any such assignee based upon the number of months during the Performance Period Mr. Hairston was employed by each. 16. Governing Law. This Agreement, and all its rights under it, shall be governed by and construed in accordance with the laws of the State of Georgia. IN WITNESS WHEREOF, this Agreement has been executed by the parties first listed above, effective this ___ day of February, 1998. THE SOUTHERN COMPANY By: ______________________________ SOUTHERN NUCLEAR OPERATING COMPANY, INC. By: MR. HAIRSTON ------------------------------ William G. Hairston III Attest: By: Exhibit A Deferred Compensation Agreement Schedule of Performance Goals For Performance Period The Company shall achieve an assessment ranking of Level 2 or better in INPO Evaluations. The Company shall experience no catastrophic event in the operations of its nuclear facilities. The Company shall meet a cost goal of 2.0 cents/kwh for all cost except FNP steam generator replacement cost and embedded capital. The FNP steam generators shall be replaced at a cost of less than $250 million which includes AFUDC. The annual individual performance goals established for Mr. Hairston shall be met or exceeded, barring an extraordinary event occurring during any of the fiscal years, subject to the approval of the Chief Executive Officer of Southern. Achievement of the goals shall be assessed annually by the Chief Executive Officer of Southern and documented in Exhibit B of this Agreement. Cost Goal Basis: 1998 1999 2000 2001 2002 ---- ---- ---- ---- ---- Nuclear O&M 454.3 443.0 436.8 445.8 444.6 Other Non-capital 113.8 105.4 102.7 106.3 111.0 Capital Additions 107.5 95.0 104.5 63.4 64.0 Less Farley SGR (63.3) (60.6) (49.5) (22.3) 0.0 - - - - - - - --------------- ---- ---- ---- ---- --- Non-fuel Costs 612.3 582.8 594.5 593.2 619.6 Millions of MWH 42.90 44.39 44.10 43.88 44.15 Non-fuel Cost/Kwh 1.43 1.31 1.35 1.35 1.40 Fuel Cost/Kwh 0.51 0.51 0.51 0.52 0.54 4% Contingency 0.08 0.07 0.07 0.07 0.08 - - - - - - - -------------- ---- ---- ---- ---- ---- Goal Cost/Kwh 2.02 1.89 1.93 1.94 2.02 Exhibit B Deferred Compensation Agreement Annual Documentation of Performance Goals For Performance Period EX-10.A.82 19 EXHIBIT 10(a)82 DEFERRED COMPENSATION AGREEMENT THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered into by and between THE SOUTHERN COMPANY ("Southern"), GEORGIA POWER COMPANY (the "Company") and WARREN Y. JOBE ("Employee"). W I T N E S S E T H WHEREAS, Employee has been employed by the Company for approximately ___________(____) years; WHEREAS, Employee is a highly compensated employee of the Company and is a member of its management; WHEREAS, the parties acknowledge that certain events ("Eligibility Events") may occur upon the termination of the Employee's employment with the Company; WHEREAS, the parties desire to delineate their respective rights, duties, and obligations attendant to the occurrence of an Eligibility Event and desire to reach an accord and satisfaction of all claims arising from Employee's employment and the occurrence of an Eligibility Event, with appropriate releases; and WHEREAS, the parties desire to provide Employee with deferred compensation upon the occurrence of an Eligibility Event for service he has provided or will provide for the Company; WHEREAS, the parties desire to enter into a consulting arrangement upon the occurrence of an Eligibility Event; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby covenant and agree as follows: 1. Event Rendering Employee Eligible For Deferred Compensation. The Employee shall become eligible for benefits under the terms of this Agreement if one of the following Eligibility Events occurs: a. The Employee terminates employment with the Company on or after attaining age sixty-two (62) and enters into a release in the form attached hereto as Exhibit 1; or b. The Employee, after entering into this Agreement but while employed by the Company, becomes totally and permanently disabled as determined by a medical doctor selected by the Company and enters into a release in the form attached hereto as Exhibit 1. c. Upon the occurrence of the Eligibility Event in Paragraph (a) above, and subject to Paragraph 5, the Company agrees to pay to Employee the amounts described in Paragraphs 2, 3 and 4 hereof. Upon the occurrence of the Eligibility Event in Paragraph (b) above, and subject to Paragraph 5, the Company agrees to pay to Employee the amounts described in Paragraph 2 and 3 hereof. Employee covenants and agrees that the consideration set forth in Paragraphs 2, 3 and 4 shall be in full satisfaction of all sums owed to Employee, if any, by the Company upon the occurrence of an Eligibility Event, and shall constitute good and complete consideration for the Release attached hereto as Exhibit 1, those nondisclosure and ownership obligations under Paragraph 7 hereof and all other obligations and covenants of Employee contained herein. d. Notwithstanding Paragraph (a) above, in the event Employee dies after entering into this Agreement but before incurring this Eligibility Event, the amounts described in Paragraphs 2 and 3 shall be paid to Employee's spouse, if living, or if not only the amounts payable under Paragraph 2 hereof shall be paid to the Employee's estate. 2. Severance Benefit. Subject to the terms and conditions of this Agreement including paragraph 5 hereof, on the first day of the first month following the Employee's Eligibility Event, the Company shall pay to Employee a lump sum amount equal to two (2) times base pay in effect at the time of the Employee's Eligibility Event. Employee shall be responsible for all state and federal income taxes and his share of FICA taxes owed on the foregoing amounts. 3. Replacement Benefit. On the first day of the first month following the Employee's Eligibility Event, the Company shall pay to Employee a lump sum amount equal to the present value of the following benefits determined as of the Employee's Eligibility Event: the monthly Early Retirement Reduction Percentage of Employee's Accrued Retirement Income under the Pension Plan (determined without regard to the limitations described under Sections 401(a)(17), 415(b) or 415(e) of the Internal Revenue Code of 1986 ("Code"), plus an amount equal to the reduction of the Employee's monthly SERP Benefit under Section 5.1 (a)(1) of The Southern Company Supplemental Retirement Plan, effective January 1, 1997, for commencement of benefits prior to Employee's Normal Retirement Date under the Pension Plan. In calculating the benefit with respect to the preceding sentence, any service granted the Employee under an agreement with the Company shall be taken into account. Employee shall be responsible for all state and federal income taxes and his share of FICA taxes owed on the foregoing amounts. 4. Payments for Consulting. Upon terminating from the Company in accordance with Paragraph 1(a), Employee agrees to provide consulting services to Company as an independent contractor in accordance with the agreement set forth in Exhibit 2: 5. Termination for Cause. In the event the Employee is terminated for cause, no benefits shall be payable under this Agreement. As used in the preceding sentence, the term "cause" shall mean gross negligence or willful misconduct in the performance of the duties and services required in the course of employment by the Company, the final conviction of a felony or misdemeanor involving moral turpitude, the carrying out of any activity or the making of any statement which would prejudice the good name and standing of the Company or would bring the Company into contempt, ridicule or would reasonably shock or offend any community in which the Company is located, or a material breach of the fiduciary obligations owed by an officer and an employee to the Company. 6. Publicity; No Disparaging Statement. Except as otherwise provided in Paragraph 9 hereof, Employee, Southern and the Company covenant and agree that they shall not engage in any communications which shall disparage one another or interfere with their existing or prospective business relationships. 7. Non-Disclosure and Non-Solicitation. a. Definitions. For purposes of this Paragraph 7, the following terms shall have the following meanings: i) "Entity" shall mean any business, individual, partnership, joint venture, agency, governmental subdivision, association, firm, corporation or other entity. ii) "Affiliate" shall mean the following Entities: (A) any Entity which owns an Interest (as defined below) in the Company either directly or indirectly through any other Entity, (B) any Entity an Interest in which is owned directly or indirectly by any Entity which owns directly or indirectly an Interest in the Company or (C) any Entity in which the Company owns an Interest either directly or indirectly through any other Entity. For purposes of this Agreement, the term "Interest" shall include any equity interest in an Entity in an amount equal to or greater than 30% of the Entity's total outstanding equity interests. iii) "Confidential Information" shall mean proprietary and confidential data or information other than Trade Secrets (as defined below), which is valuable to, and related to the business of, the Company, its Affiliates or non-affiliated Entities with whom the Company or its Affiliates has or have business relationships (collectively, "Third Parties"), and the details of which are generally unknown to the public or to the Company's competitors, including, without limitation, information regarding the Company's employees, business strategies, models and systems, customers, suppliers, partners and affiliates, gained by Employee as a result of his or her affiliation with the Company or its Affiliates, and other items that the Company or its Affiliates may from time to time mark or otherwise identify as confidential. iv) "Trade Secrets" shall mean information of or related to the Company, its Affiliates or Third Parties which (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; it being agreed that such information includes, without limitation, technical and non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers. v) "Intellectual Property" shall mean all work product, property, data, documentation, "know-how", concepts or plans, inventions, discovery, compositions, innovations, computer programs, improvements, techniques, processes, designs, article of manufacture or information of any kind, or any new or useful improvements of any of the foregoing and any Trade Secrets, patents, copyrights, Confidential Information, mask work, trademark or service mark, relating in any way to the Company or its Affiliates and its or their business prepared, conceived, revised, discovered, developed, or created by Employee for the Company or its Affiliates or by using the Company's or its Affiliates' time, personnel, facilities, or material. b. Nondisclosure: Ownership of Proprietary Property. i) Nondisclosure. In recognition of the Company's need to protect its legitimate business interests, Employee hereby acknowledges that he has been given access to valuable Trade Secrets and Confidential Information; and Employee hereby covenants and agrees that he will use the Trade Secrets and Confidential Information for the Company's business purposes only, and that he will not for any reason, in any fashion, form or manner, other than as instructed by a duly authorized representative of the Company, copy, disclose, disseminate, communicate, transfer or otherwise convey to any Entity any item: (A) which is a Trade Secret, for so long as such item remains a trade secret under applicable law; or (B) which is Confidential Information, other than Trade Secrets, for a period of two (2) years from the Employee's Eligibility Event. ii) Notification of Unauthorized Disclosure. Employee shall exercise his best efforts to ensure the continued confidentiality of all Trade Secrets and Confidential Information known by, disclosed or made available to Employee. Employee shall immediately notify the Company of any unauthorized disclosure or use of any Trade Secrets or Confidential Information of which Employee becomes aware. Employee shall assist the Company, to the extent necessary, in the procurement or protection of the Company's or its Affiliates' rights to or in any Intellectual Property, Trade Secrets or Confidential Information and, upon the Company's request, shall assist, to the extent necessary, in the procurement or protection of any Third Party's rights to or in any Intellectual Property, Trade Secrets or Confidential Information. iii) Ownership. To the greatest extent possible, any and all Intellectual Property shall be deemed to be "work made for hire" (as defined in the Copyright Act, 17 U.S.C.A. ss.ss. 101 et seq.), and Employee hereby unconditionally and irrevocably transfers and assigns to the Company or its Affiliates all rights, title and interest Employee currently has or in the future may have by operation of law or otherwise in or to any Intellectual Property, including, without limitation, all patents, copyrights, trademarks, service marks and other Intellectual Property rights and agrees that the Company or its Affiliates shall have the exclusive world-wide ownership of such Intellectual Property, and that no Intellectual Property shall be treated as or deemed to be a "joint work" (as defined by the Copyright Act) of Employee and the Company, its Affiliates or otherwise. Employee agrees to execute and deliver to the Company or its Affiliates any transfers, assignments, documents or other instruments which the Company or its Affiliates may deem necessary or appropriate to vest complete title and ownership of any Intellectual Property, and all rights therein, exclusively in the Company or its Affiliates, as the case may be. iv) Return of Materials. Upon the Employee's Eligibility Event, or at any point after that time upon the specific request of the Company, Employee shall return to the Company all written or descriptive materials of any kind belonging or relating to the Company or its Affiliates, including, without limitation, any Intellectual Property, Confidential Information and Trade Secrets, in Employee's possession. 8. Transfer of Employment to Southern or a Southern Subsidiary or Affiliate. In the event that Employee's employment by the Company is terminated prior to Employee's Eligibility Event and Employee shall become immediately re-employed by Southern or a subsidiary or an affiliate of Southern, the Company shall assign this Agreement to Southern or such subsidiary or affiliate, Southern shall accept such assignment or cause such affiliate or subsidiary to accept such assignment, such assignee shall become the "Company" for all purposes hereunder, including but not limited to the Release and Consulting Agreement attached hereto and incorporated herein as Exhibit 1 and 2 respectively. In the event of such assignment, the expense of this Agreement shall be shared pro rata by the Company and any such assignee based upon the number of months after the effective date of this Agreement that the Employee is employed by the Company, and/or Southern and/or such affiliate or subsidiary of Southern, as the case may be. 9. Confidentiality and Legal Process. Employee represents and agrees that he will keep the terms, amount and fact of this Agreement confidential and that he will not hereafter disclose any information concerning this Agreement to any one other than his personal agents, including, but not limited to, any past, present, or prospective employee or applicant for employment with Company. Notwithstanding the foregoing, nothing in this Agreement is intended to prohibit Employee from performing any duty or obligation that shall arise as a matter of law. Specifically, Employee shall continue to be under a duty to truthfully respond to any legal and valid subpoena or other legal process. This Agreement is not intended in any way to proscribe Employee's right and ability to provide information to any federal, state or local government in the lawful exercise of such governments' governmental functions. 10. Successors And Assigns; Applicable Law. This Agreement shall be binding upon and inure to the benefit of Employee and his heirs, administrators, representatives, executors, successors and assigns, and shall be binding upon and inure to the benefit of Southern, the Company and their officers, directors, employees, agents, shareholders, parent corporation and affiliates, and their respective predecessors, successors, assigns, heirs, executors and administrators and each of them, and to their heirs, administrators, representatives, executors, successors and assigns. This Agreement shall be construed and interpreted in accordance with the laws of the State of Georgia, United States of America (without giving effect to principles of conflicts of laws). 11. Complete Agreement. This Agreement shall constitute the full and complete Agreement between the parties concerning its subject matter and fully supersedes any and all other prior Agreements or understandings between the parties concerning the subject matter hereof. This Agreement shall not be modified or amended except by a written instrument signed by both Employee and an authorized representative of Southern and the Company. 12. Severability. The unenforceability or invalidity of any particular provision of this Agreement shall not affect its other provisions, and to the extent necessary to give such other provisions effect, they shall be deemed severable. 13. Waiver Of Breach; Specific Performance. The waiver of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach. Each of the parties to this Agreement will be entitled to enforce its or his rights under this Agreement, specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its or his favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its or his sole discretion apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. 14. Unsecured General Creditor. The Company shall neither reserve nor specifically set aside funds for the payment of its obligations under this Agreement, and such obligations shall be paid solely from the general assets of the Company. Notwithstanding that Employee may be entitled to receive the value of his Account under the terms and conditions of this Agreement, the assets from which such amount may be paid shall at all times be subject to the claims of the Company's creditors. 15. No Effect On Other Arrangements. It is expressly understood and agreed that the payments made in accordance with this Agreement are in addition to any other benefits or compensation to which Employee may be entitled or for which he may be eligible, whether funded or unfunded, by reason of his employment with the Company. 16. Tax Withholding. There shall be deducted from each payment under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Employee. 17. Compensation. Any compensation contributed on behalf of Employee under this Agreement shall not be considered "compensation," as the term is defined in The Southern Company Employee Savings Plan, The Southern Company Employee Stock Ownership Plan, or The Southern Company Pension Plan. Payments under this Agreement shall not be considered wages, salaries or compensation under any other employee benefit plan. 18. No Guarantee of Employment. No provision of this Agreement shall be construed to affect in any manner the existing rights of the Company to suspend, terminate, alter, modify, whether or not for Cause, the employment relationship of Employee and the Company. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, this ___ day of ________________, 1998. "SOUTHERN" THE SOUTHERN COMPANY By:______________________ Its:_____________________ "COMPANY" GEORGIA POWER COMPANY By:______________________ Its:_____________________ "EMPLOYEE" WARREN Y. JOBE ------------------------- WITNESSED BY: ------------------------- Exhibit 1 to Deferred Compensation Agreement with Warren Y. Jobe RELEASE AGREEMENT THIS RELEASE ("Release') is made and entered into by and between WARREN Y. JOBE ("Employee"), THE SOUTHERN COMPANY ("Southern") and GEORGIA POWER COMPANY and its successor or assigns ("Company"). WHEREAS, Employee, Southern and Company have agreed that Employee's employment with _________________ shall terminate on - - - - - - - -------------, -------; WHEREAS, Employee, Southern and Georgia Power Company have previously entered into that certain Deferred Compensation Agreement, dated _______, 1998 ("Agreement"), that this Release is incorporated into by reference; WHEREAS, Employee, Southern and Company desire to delineate their respective rights, duties and obligations attendant to such termination and desire to reach an accord and satisfaction of all claims arising from Employee's employment, and his termination of employment, with appropriate releases, in accordance with the Agreement; WHEREAS, the Company desires to provide Employee with deferred compensation in accordance with the Agreement for service he has or will provide for the Company; NOW, THEREFORE, in consideration of the premises and the agreements of the parties set forth in this Release, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby covenant and agree as follows: 1._______Release. Employee does hereby remise, release and forever discharge Southern and the Company and their officers, directors, employees, agents, shareholders, parent corporation and affiliates, and their respective predecessors, successors, assigns, heirs, executors and administrators (collectively, "Releasees"), of and from all manner of actions and causes of action, suits, debts, claims and demands whatsoever at law or in equity, known or unknown, actual or contingent, including, but not limited to, any claims which have been asserted, or could be asserted now or in the future, against any Releasees arising under any and all federal, state or local laws and any common law claims, and including, but not limited to, any claims Employee may have pursuant to the Age Discrimination in Employment Act and any claims to benefits under any and all offer letters, employment or separation agreements, or bonus, severance, workforce reduction, early retirement, out-placement, or other similar plans sponsored by the Company, now or hereafter recognized (collectively, "Claims"), which he ever had or now has or may in the future have, by reason of any matter, cause or thing arising out of his employment relationship and privileges, his serving as an employee of the Company or the separation from his employment relationship or affiliation as an employee of the Company as of the date of this Release against each of the Releasees. Notwithstanding the foregoing, Employee does not release any Claims under the Age Discrimination in Employment Act that may arise after his execution of this Release. 2._______No Assignment of Claim. Employee represents that he has not assigned or transferred, or purported to assign or transfer, any Claims or any portion thereof or interest therein to any party prior to the date of this Release. 3._______Deferred Compensation. In accordance with Paragraph 1 of the Deferred Compensation Agreement, the Company agrees to pay the Employee, his spouse or estate, as the case may be, the amounts outlined in Paragraphs 2 and 3 of the Agreement. 4._______Consulting Services. If the Employee terminates from the Company in accordance with Paragraph 4 of the Deferred Compensation Agreement, the Employee agrees to provide consulting services as set forth under the Consulting Agreement referred to therein. 5._______No Admission Of Liability. This Release shall not in any way be construed as an admission by Southern, the Company or Employee of any improper actions or liability whatsoever as to one another, and each specifically disclaims any liability to or improper actions against the other or any other person, on the part of itself or himself, its or his employees or agents. 6._______Voluntary Execution. Employee warrants, represents and agrees that he has been encouraged in writing to seek advice from anyone of his choosing regarding this Release, including his attorney and accountant or tax advisor prior to his signing it; that this Release represents written notice to do so; that he has been given the opportunity and sufficient time to seek such advice; and that he fully understands the meaning and contents of this Release. He further represents and warrants that he was not coerced, threatened or otherwise forced to sign this Release, and that his signature appearing hereinafter is voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE (21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS RELEASE. 7. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN (7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS THAT UPON THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON HIM AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND ASSIGNS AND WILL BE IRREVOCABLE. Acknowledged and Agreed To: "SOUTHERN" THE SOUTHERN COMPANY By: Its: "COMPANY" GEORGIA POWER COMPANY By: Its: I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE. I UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE. "EMPLOYEE" WARREN Y. JOBE Date WITNESSED BY: - - - - - - - ------------------------------------ - - - - - - - ------------------------------------ Date CONSULTING AGREEMENT THIS CONSULTING AGREEMENT ("Agreement") is entered into by and between THE SOUTHERN COMPANY ("Southern"), GEORGIA POWER COMPANY (the "Company") and WARREN Y. JOBE ("Consultant"). W I T N E S S E T H WHEREAS, Southern and the Company conduct business in the electric utility industry; WHEREAS, Consultant has expertise with respect to this industry and about Southern and the Company; WHEREAS, Southern and the Company desire to retain certain consulting services of Consultant and Consultant desires to provide such consulting services to Company in accordance with the terms and conditions of this Agreement. NOW THEREFORE, for and in consideration of the premises, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Engagement as an Independent Contractor. Company hereby agrees to engage Consultant as an independent contractor and Consultant hereby accepts such engagement as an independent contractor, upon the terms and conditions set forth in this Agreement. 2. Term. The term of this Agreement shall be for four (4) years and shall commence upon the occurrence of the Eligibility Event set forth under Paragraph 1(a) of the Deferred Compensation Agreement. Notwithstanding the preceding sentence, the term shall be shortened so that Consultant shall not be required to render consulting services beyond his sixty-sixth (66th) birthday. However, either party may terminate the Agreement at any time by providing a one hundred and eighty (180) day written notice of intent to terminate pursuant to Section 7 below. 3. Duties. Unless otherwise detailed in a specific letter or memorandum, Consultant shall manage, perform, and provide professional consulting services and advice as Company may request in writing from time to time. Consultant must obtain prior written approval from the Company before Consultant contracts with or in any other way employs any agents or subcontractors to perform work in any way related to this Agreement. Consultant shall cause its agents, employees and subcontractors to perform such duties in a professional and competent manner which shall be consistent with Company's Code of Ethics. Additionally, during the term of this Agreement, Consultant agrees to promote the best interests of Company and to take no actions that in any way damage the public image or reputation of Company or its affiliates or to knowingly assist, in any way, a competitor of Company. 4. Consultant as an Independent Contractor. a. The parties acknowledge and intend that the relationship of Consultant, and its agents, employees and subcontractors, to Company under this Agreement shall be that of independent contractors. In performing its duties under this Agreement, Consultant shall cause the services required to be completed according to its own means and methods of work which shall be in the exclusive charge and control of Consultant and which shall not be subject to the control or supervision of Company, except as to the results of its work. Consultant shall determine its own working hours and schedule for its agents, employees and subcontractors and shall not be subject to Company's personnel policies and procedures except for Company's Code of Ethics. Consultant shall be entirely and solely responsible for its actions or in-actions and the actions or in-actions of its agents, employees or subcontractors, if any, while performing services hereunder. Consultant agrees that neither it nor any of its agents, employees or subcontractors shall, in any form or fashion, maintain, hold out, represent, state or imply to any other individual or entity that an employer/employee relationship exists between Company and Consultant, its agents and employees, or between Company and any subcontractor or its agents and employees, and neither Consultant nor its agents, employees or subcontractors are granted nor shall they represent that they are granted any right or authority to make any representation or warranty or assume or create any obligation or responsibility, express or implied, for, on behalf of or in the name of Company, to incur debts for Company or to bind Company in any manner whatsoever. Additionally, Consultant hereby waives and relinquishes any right of subrogation it might have against Company under the provisions of the Workers' Compensation Act of Georgia on account of any injury to its employees or employees of its subcontractors, if any, caused in whole or in part by any negligence of Company. Consultant further agrees that it will require its Workers' Compensation insurer, if any, to likewise waive and relinquish such subrogation rights and furnish evidence of such waiver to Company. b. Consultant agrees that neither its agents, employees or subcontractors nor the agents or employees of its subcontractors shall be eligible to participate in any employee benefit plan sponsored by Company or its affiliates, including, but not limited to, any retirement plan, insurance program, disability plan, medical benefits plan or any other fringe benefit program sponsored and maintained by Company for its employees. 5. Compensation and Payments. a. As payment for the services provided under this Agreement, Consultant shall receive compensation in accordance with the following schedule: Minimum Days Required to be Available Retainer for Rate for Days in Excess of Year to Company Minimum Days Minimum Required Days 1 30 $60,000 $2,000 2 30 $60,000 $2,000 3 20 $40,000 $2,000 4 20 $40,000 $2,000 The provided amounts will be payable upon execution by the Company of this Agreement and each succeeding anniversary thereof for the term of the Agreement. Consultant shall be reimbursed by Company for reasonable expenses incurred while conducting work as Consultant under this Agreement which are approved by the Company in advance upon remittance of the same to Company. b. Consultant hereby recognizes, covenants and agrees that, except as specifically set forth to the contrary in this Agreement, Consultant shall be solely and exclusively responsible and liable for all expenses, costs, liabilities, assessments, taxes, maintenance, insurance, undertakings and other obligations incurred by Consultant, its agents, employees and all subcontractors at any time and for any reason as a result of this Agreement or the performance of services by Consultant including, but not limited to, withholding taxes, social security taxes, unemployment taxes, sales/use taxes and workers' compensation insurance premiums. 6. Transfer of Employment to Southern or a Southern Subsidiary or Affiliate. In the event that Employee's employment by the Company is terminated prior to Employee's Eligibility Event under the Deferred Compensation Agreement and Employee shall become immediately re-employed by Southern or a subsidiary or an affiliate of Southern, the Company shall assign this Agreement to Southern or such subsidiary or affiliate, Southern shall accept such assignment or cause such affiliate or subsidiary to accept such assignment, such assignee shall become the "Company" for all purposes hereunder. 7. Notices. All notices required, necessary or desired to be given pursuant to this Agreement shall be in writing and shall be effective when delivered or on the third day following the date upon which such notice is deposited, postage prepaid, in the United States mail, certified return receipt requested, and addressed to the party at the address set forth below: ====================== ======================= ---------------------- ----------------------- 8. Indemnification. Consultant shall and does hereby expressly agree to indemnify and hold harmless Southern and Company, its officers, directors, shareholders, employees, parent and affiliates against any and all suits, actions, judgments, costs (including, without limitation, all court costs and attorneys' fees), losses, damages, or claims of whatever nature arising out of or related to any acts or omissions of Consultant, its agents, employees or subcontractors, including, but not limited to, any injuries to or deaths of persons or any damage to property or equipment. Consultant further agrees to defend any and all such actions in any court or in arbitration. 9. Non-Disclosure, Non-Competition And Non-Solicitation Provisions. a. Definitions. For purposes of this Section 9, the following terms shall have the following meanings: i) "Confidential Information" shall mean proprietary and confidential data or information other than Trade Secrets (as defined below), which is valuable to, and related to the business of the Company, its Affiliates or non-affiliated Entities with whom the Company or its Affiliates has or have business relationships (collectively, "Third Parties") and the details of which are generally unknown to the public or to the Company's Competitors including, without limitation, information regarding the Company's employees, business strategies, models and systems, customers, suppliers, partners and affiliates, gained by Consultant as a result of his or her affiliation with the Company or its Affiliates, and other items that the Company or its Affiliates may from time to time mark or otherwise identify as confidential. ii) "Trade Secrets" shall mean information of or related to the Company, its Affiliates or Third Parties which (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; it being agreed that such information includes, without limitation and without regard to form, technical and non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential customers or suppliers. iii) "Intellectual Property" shall mean all work product, property, data, documentation, "know-how", concepts or plans, inventions, discovery, compositions, innovations, computer programs, improvements, techniques, processes, designs, article of manufacture or information of any kind, or any new or useful improvements of any of the foregoing and any Trade Secrets, patents, copyrights, Confidential Information, mask work, trademark or service mark, relating in any way to the Company or its Affiliates and its or their business prepared, conceived, revised, discovered, developed, or created by Consultant for the Company or its Affiliates or any of Company's or its Affiliates' clients or Customers or by using the Company's or its Affiliates' time, personnel, facilities, or material. iv) "Competitive Position" shall mean: any employment or independent contractor arrangement with any Customer whereby Consultant will serve such Customer in the same or substantially similar capacity as that which it performs for Company or its Affiliates pursuant to the terms of this Agreement. v) "Customer" shall have the meaning ascribed by Section 9.c. hereof. vi) "Entity" shall mean any business, individual, partnership, joint venture, agency, governmental subdivision, association, firm, corporation or other entity. vii) "Affiliate" shall mean the following Entities: (A) any Entity which owns an Interest (as defined below) in the Company either directly or indirectly through any other Entity, (B) any Entity an Interest in which is owned directly or indirectly by any Entity which owns directly or indirectly an Interest in the Company or (C) any Entity in which the Company owns an Interest either directly or indirectly through any other Entity. For purposes of this Agreement, the term "Interest" shall include any equity interest in an Equity in an amount equal to or greater than 30% of the Entity's total outstanding equity interests. b. Nondisclosure: Ownership of Proprietary Property. i) Nondisclosure. In recognition of the need of Company and its Affiliates to protect its legitimate business interests, Consultant hereby covenants and agrees that: (A) with regard to each item constituting all or any portion of a Trade Secret (before or after the termination of this Agreement); and (B) with regard to any Confidential Information, at all times during this Agreement and for a period of three (3) years following the expiration or termination of this Agreement for any reason, Consultant, its agents, employees and subcontractors shall regard and treat all Trade Secrets and all Confidential Information as strictly confidential and wholly-owned by Company and its Affiliates and will not, for any reason, in any fashion, either directly or indirectly, use, sell, lend, lease, distribute, license, give, transfer, assign, show, disclose, disseminate, reproduce, copy, misappropriate or otherwise communicate any such item or information to any Third Party for any purpose other than in accordance with this Agreement or as required by applicable law. ii) Allowed Disclosures. Notwithstanding Section 9.b.i) hereof, Consultant may disclose Confidential Information and Trade Secrets to those of its agents, employees and subcontractors who need to know such particular Trade Secrets or Confidential Information in order for Consultant to perform its obligations under this Agreement. Consultant shall require each and every person to whom it discloses any Trade Secrets or Confidential Information to execute confidentiality agreements in a form reasonably acceptable to Company and shall use its best efforts to cause such persons to comply with the restrictions contained in such confidentiality agreements. Consultant shall remain responsible for every person to whom it provides Trade Secrets or Confidential Information. iii) Notification of Unauthorized Disclosure. Consultant shall exercise its best efforts and shall cause its agents, employees and subcontractors to exercise their best efforts to ensure the continued confidentiality of all Trade Secrets and Confidential Information of Company or its Affiliates known by, disclosed or made available to Consultant, whether in connection with this Agreement or any other past or present relationship with Company or its Affiliates. Consultant shall immediately notify Company of any unauthorized disclosure or use of any Trade Secrets or Confidential Information of which Consultant becomes aware. Consultant shall assist Company and its Affiliates, to the extent necessary, in the procurement or protection of Company's and its Affiliates' rights to or in any Intellectual Property, Trade Secrets or Confidential Information. iv) Ownership. To the greatest extent possible, any and all Intellectual Property shall be deemed to be "work made for hire" (as defined in the Copyright Act, 17 U.S.C.A. ss.ss. 101 et seq.), and Consultant hereby unconditionally and irrevocably transfers and assigns and shall cause its agents, employees and subcontractors to unconditionally and irrevocably transfer and assign to Company or its Affiliates all rights, title and interest Consultant or such persons currently have or in the future may have by operation of law or otherwise in or to any Intellectual Property, including, without limitation, all patents, copyrights, trademarks, service marks and other Intellectual Property rights and agrees that Company and its Affiliates shall have the exclusive world-wide ownership of such Intellectual Property, and that no Intellectual Property shall be treated as or deemed to be a "joint work" (as defined by the Copyright Act) of Consultant, Company and its Affiliates or otherwise. Consultant agrees to execute and deliver and to cause its agents, employees and subcontractors to execute and deliver to Company any transfers, assignments, documents or other instruments which Company may deem necessary or appropriate to vest complete title and ownership of any Intellectual Property, and all rights therein, exclusively in Company or its Affiliates. v) Return of Materials. Immediately upon termination of the Agreement, or at any point prior to or after that time upon the specific request of Company or its Affiliates, Consultant shall return and shall cause its agents, employees and subcontractors to return to Company and its Affiliates all written or descriptive materials of any kind including, without limitation, any Intellectual Property, Confidential Information and Trade Secrets, in Consultant's or such persons' possession. The confidentiality obligations described in this Agreement shall continue until their expiration under the terms of this Agreement. vi) Public Statements and Press Releases. Company shall issue all public statements concerning the work hereunder. Neither Consultant nor its agents, employees or subcontractors shall issue any press releases, publications or other public communications describing or concerning any acknowledged project of Company or its Affiliates without the prior written consent of the Company. c. Non-solicitation of Customers, Non-referral and Non-compete. Consultant covenants and agrees that during the term of this Agreement, and for a period of three (3) years thereafter, it shall not, nor shall its agents, employees or subcontractors either directly or indirectly, for itself or themselves or in conjunction with or on behalf of any Entity: (a) solicit, divert or appropriate or attempt to solicit, divert or appropriate any customer or actively sought prospective customer of Company or its Affiliates whom Consultant, its agents, employees or subcontractors, has solicited, provided service to or otherwise had significant contact with while providing services to Company and its Affiliates pursuant to this Agreement (hereinafter "Customer"); (b) refer, recommend or otherwise suggest to any Customer the services of any Entity other than Company or its Affiliates with respect to those types of services which Company and its Affiliates are regularly in the business of providing; (c) refer, recommend or otherwise suggest to any Entity to provide or seek to provide services to any Customer with respect to those types of services which Company and its Affiliates are in the business of providing; (d) seek or accept a Competitive Position with a Customer; or (e) solicit, divert or appropriate or attempt to solicit, divert or appropriate any employee or other contractor of Company or its Affiliates. Consultant agrees to require each of its agents, employees or subcontractors who will perform services pursuant to this agreement for a Customer to execute a non-solicitation, non-referral and non-compete agreement in a form reasonably acceptable to Company and its Affiliates and shall use its best efforts to cause such persons to comply with such agreement. d. Remedies. The parties represent and agree that any disclosure or use of any Trade Secrets or Confidential Information by Consultant, its agents, employees or subcontractors except as otherwise authorized by the Company in writing, or any other violation of this Section 9 would be wrongful and cause immediate, significant, continuing and irreparable injury and damage to Company and its Affiliates that is not fully compensable by monetary damages. Should Consultant breach or threaten to breach any provision of this Section 9, Company and its Affiliates shall be entitled to obtain immediate relief and remedies in a court of competent jurisdiction (including but not limited to damages, preliminary or permanent injunctive relief and an accounting for all profits and benefits arising out of Consultant's breach), cumulative of and in addition to any other rights or remedies to which Company and its Affiliates may be entitled by this Agreement, at law or in equity. 10. Laws, Regulations and Public Ordinances. Consultant shall comply with all federal, state, and local statutes, regulations, and public ordinances governing its work hereunder and shall indemnify, defend and hold Company and Southern harmless from any and all liability, damage, cost, fine, penalty, fee and expense arising from Consultant's failure to do so. 11. Political Activities. Of particular importance to Company and Southern are those laws and regulations that regulate or proscribe conduct relating to lobbying, political campaign contributions or other dealings with public officials or candidates for public office. The parties expressly acknowledge that all amounts paid by Company to Consultant consist solely of payment for professional services rendered or reimbursement of all normal "out of pocket" expenses related thereto; and no portion of such payment shall be forwarded to any political campaign, any candidate for political office or any candidate's campaign committee or to any other entity if Company or Southern itself could not lawfully make such a payment. While Consultant expressly agrees not to make any campaign contributions for or on behalf of Company or Southern in any form, Consultant retains the right to make such contributions in its corporate capacity as otherwise permitted by law. 12. Foreign Corrupt Practices. Consultant acknowledges that Company and Southern are subject to the provisions of United States Public Law 95-213, the Foreign Corrupt Practices Act of 1977 and any amendments thereto ("FCPA") and that it is familiar with Company's policy to comply strictly with the FCPA. Consultant hereby agrees to meet and comply with the FCPA and Company's policy in all respects and to require its employees, agents, advisors, affiliates, associates, vendors and subcontractors to do the same. Consultant specifically understands and agrees that it shall not make any offer, gift, promise to give, or authorization of the giving of anything of value, to any official, any political party or official thereof or any candidate for political office, or any other person, that is contrary to the prohibitions set forth in the FCPA, including, without limitation, articles 78dd-1(a) or 78dd-2(a) thereof ("Improper Payments"). Consultant hereby further represents and warrants within the meaning of the FCPA that: (i) no person or entity affiliated with Consultant is a foreign official of a foreign political party, or a candidate for foreign political office, or a person who will offer all or a portion of the consideration received by Consultant or such person or entity to any foreign official, foreign political party or official thereof, or to any candidate for political office; and (ii) the consideration, or any portion thereof, paid by Company to Consultant, pursuant to this Agreement or otherwise, constitutes (or will constitute) consideration only for the services rendered hereunder and is not given, directly or indirectly, in order to influence any act or decision of a foreign official in its official capacity or to induce such foreign official to use its influence with a foreign government or instrumentality to affect or influence any act or decision of such government or instrumentality in order to assist Company or Southern in obtaining or retaining business. In the event that Consultant or any of its agents, employees or subcontractors makes any Improper Payment or otherwise violates the provisions of this Section 12, then in addition to other rights and remedies available to Company and Southern hereunder and under applicable law, Company and Southern shall have the right to immediately terminate this Agreement and recover from Consultant or withhold from compensation due Consultant under this Agreement or any agreement entered into pursuant hereto: (i) the amount or value of the Improper Payment; and (ii) any fines, expenses or attorneys' fees incurred in connection with the Improper Payment or violation hereof. 12. Waiver of Breach. The waiver by any party to this Agreement of a breach of any provision, section or paragraph of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same, or of a different provision, section or paragraph, by any party hereto. 13. Assignment by Consultant. Consultant may not assign, transfer or subcontract any of its rights or obligations under this Agreement to any party without the prior written consent of the Company. Consultant's obligations under this Agreement shall be binding on Consultant's successors and permitted assigns. Any assignment, transfer or subcontracting in violation of this provision shall be null and void. 14. Survival. Notwithstanding any expiration or termination of this Agreement, the provisions of Sections 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 hereof shall survive and remain in full force and effect, as shall any other provision hereof that, by its terms or reasonable interpretation thereof, sets forth obligations that extend beyond the termination of this Agreement. 15. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia. 16. Severability. The unenforceability or invalidity of any term, provision or Section of this Agreement shall not affect the validity or enforceability of the remaining terms, provisions, or sections hereof, but such remaining terms, provisions or sections shall be construed and interpreted in such a manner as to carry out fully the intent of the parties hereto; provided however, that should any judicial body interpreting this Agreement deem any provision hereof to be unreasonably broad in time, territory, scope or otherwise, it is the intent and desire of the parties hereto that such judicial body, to the greatest extent possible, reduce the breadth of such provision to the maximum legally allowable parameters rather than deeming such provision totally unenforceable or invalid. 17. Interpretation. Should a provision of this Agreement require judicial interpretation, it is agreed that the judicial body interpreting or construing the Agreement shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared the agreement, it being agreed that all parties and/or their agents have participated in the preparation hereof. 18. Entire Agreement. This Agreement embodies the entire agreement of the parties and supersedes all prior agreements between the parties hereto relating to the subject matter hereof. It may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of ________________, _____. "COMPANY" "CONSULTANT" GEORGIA POWER COMPANY WARREN Y. JOBE By:_________________________________ ____________________________ Its:________________________________ Witnessed By:_______________ "SOUTHERN" THE SOUTHERN COMPANY By:_________________________________ Its:________________________________ EX-10.A.83 20 Exhibit 10(a)83 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Energy Resources, Inc. (the "Company") and Mr. Thomas G. Boren ("Mr. Boren"). W I T N E S S E T H: WHEREAS, Mr. Boren is the President and Chief Executive Officer of the Company; WHEREAS, the Company wish to provide to Mr. Boren certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Boren's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Boren or any Group of which Mr. Boren is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Boren, any Group of which Mr. Boren is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Boren, any Group composed exclusively of employees of the Company, any Group of which Mr. Boren is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Boren or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Energy Resources, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Employing Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Boren's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Boren's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Boren's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Boren's annual base salary rate plus target bonus under the Company's Short Term Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the Short Term Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Boren participates or is a party as of the date of the Change in Control or the elimination of Mr. Boren's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Boren's work location to a location more than fifty (50) miles from the office where Mr. Boren is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Boren's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Boren of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Boren's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Boren's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Boren under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Boren was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Boren with the number of paid vacation days to which Mr. Boren is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean employees of the Company whose annual base salary is $130,000 or more. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Boren, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Boren, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Boren has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Southern" shall mean The Southern Company, its successors and assigns. (y) "Southern Board" shall mean the board of directors of Southern. (z) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (a) "Termination for Cause" or "Cause" shall mean the termination of Mr. Boren's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Boren substantially to perform his duties with the Company (other than any such failure resulting from Mr. Boren's Total Disability or from Mr. Boren's retirement or any such actual or anticipated failure resulting from termination by Mr. Boren for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Boren in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Boren's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any other Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Boren shall be deemed "willful" unless done, or omitted to be done, by Mr. Boren not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Boren shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Boren and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Boren was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(aa) and specifying the particulars thereof in detail. (bb) "Termination Date" shall mean the date on which Mr. Boren's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (cc) "Total Disability" shall mean Mr. Boren's total disability within the meaning of the Pension Plan. (dd) "Value Creation Plan" shall mean the Southern Energy Resources, Inc. Value Creation Plan or any replacement thereto, as such plans may be amended from time to time. (ee) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (ff) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (gg) "Year of Service" shall mean Mr. Boren's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Boren has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Boren's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Boren voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Boren shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Boren shall not be eligible to receive benefits under this Agreement if Mr. Boren: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Boren meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Boren an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Boren under Code Section 280G exceeds three (3) times Mr. Boren's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Boren's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Boren, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Boren meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Boren shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Boren's Years of Service, not to exceed five (5) years. If Mr. Boren elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Boren's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Boren's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Boren pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Boren in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Boren in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Boren or his dependent may elect. In the event that Mr. Boren or his dependent becomes eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Boren or his dependent by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Boren shall be entitled to receive cash in an amount equal to the Company's and Mr. Boren's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Boren meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Boren's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Boren is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such action would result in liability to Mr. Boren under Section 16(b) of the Exchange Act, provided further, that any such action not taken as a result of the rules of Section 16(b) of the Exchange Act shall be effective as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Boren's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Boren under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Dividend Plan. Provided Mr. Boren is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the Performance Dividend Plan is in place through Mr. Boren's Termination Date and to the extent Mr. Boren is entitled to participate therein, Mr. Boren shall be entitled to receive cash for each Award held by Mr. Boren on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (iii) Value Creation Plan. Any of Mr. Boren's Appreciation Rights or Indexed Rights under the Value Creation Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and fully vested to the full extent of the original grant. Notwithstanding anything in the Value Creation Plan to the contrary, Share Value with respect to any Appreciation Rights or Indexed Rights held by Mr. Boren following his Termination Date shall be no less than the Share Value as of the date of the Change in Control of Southern or the Company, as the case may be. (iv) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(iv) shall apply if and to the extent that Mr. Boren is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Boren is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Boren is entitled to participate therein, Mr. Boren shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Boren's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(iv) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Boren's Termination Date, or (ii) upon Mr. Boren's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Boren's death prior to the payment of all amounts due under this Agreement, Mr. Boren's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Boren and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Boren's favor, the Company shall reimburse Mr. Boren's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Boren shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Boren's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Boren for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Boren's favor, the Company shall reimburse Mr. Boren's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Boren's employment by the Company is terminated during the two year period following a Change in Control and Mr. Boren accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Boren is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Boren hereunder shall not be reduced or suspended if Mr. Boren accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Boren's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Boren, in the case of the Company, or to the Southern Board, in the case of Mr. Boren. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Boren, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Boren. All other costs of arbitration shall be borne equally by Mr. Boren and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Boren's favor and Mr. Boren is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Agreement. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Boren under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Boren. (c) Assignment. Mr. Boren shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting,), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN ENERGY RESOURCES, INC. By: ____________________________________ MR. BOREN ----------------------------- Thomas G. Boren Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Thomas G. Boren 65% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Thomas G. Boren upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Thomas G. Boren, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Energy Resources, Inc. (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Thomas G. Boren Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.84 21 EXHIBIT 10(a)84 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Gulf Power Company (the "Company") and Mr. Travis J. Bowden ("Mr. Bowden"). W I T N E S S E T H: WHEREAS, Mr. Bowden is the President and Chief Executive Officer of the Company; WHEREAS, the Company wish to provide to Mr. Bowden certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Bowden's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Bowden or any Group of which Mr. Bowden is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Bowden, any Group of which Mr. Bowden is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Bowden, any Group composed exclusively of employees of the Company, any Group of which Mr. Bowden is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Bowden or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Gulf Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Bowden's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Bowden's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Bowden's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Bowden's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Bowden participates or is a party as of the date of the Change in Control or the elimination of Mr. Bowden's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Bowden's work location to a location more than fifty (50) miles from the office where Mr. Bowden is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Bowden's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Bowden of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Bowden's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Bowden's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Bowden under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Bowden was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Bowden with the number of paid vacation days to which Mr. Bowden is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Bowden, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Bowden, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Bowden has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Bowden's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Bowden substantially to perform his duties with the Company (other than any such failure resulting from Mr. Bowden's Total Disability or from Mr. Bowden's retirement or any such actual or anticipated failure resulting from termination by Mr. Bowden for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Bowden in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Bowden's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Bowden shall be deemed "willful" unless done, or omitted to be done, by Mr. Bowden not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Bowden shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Bowden and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Bowden was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Bowden's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Bowden's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Bowden's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Bowden has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Bowden's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Bowden voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Bowden shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Bowden shall not be eligible to receive benefits under this Agreement if Mr. Bowden: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Bowden meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Bowden an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Bowden under Code Section 280G exceeds three (3) times Mr. Bowden's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Bowden's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Bowden, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Bowden meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Bowden shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Bowden's Years of Service, not to exceed five (5) years. If Mr. Bowden elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Bowden's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Bowden's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Bowden pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Bowden in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Bowden in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Bowden or his dependents may elect. In the event that Mr. Bowden or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Bowden or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Bowden shall be entitled to receive cash in an amount equal to the Company's and Mr. Bowden's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Bowden meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Bowden's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Bowden is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Bowden under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Bowden's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Bowden under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Bowden is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Bowden's Termination Date and to the extent Mr. Bowden is entitled to participate therein, Mr. Bowden shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Bowden is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Bowden's Termination Date and to the extent Mr. Bowden is entitled to participate therein, Mr. Bowden shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Bowden is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Bowden's Termination Date and to the extent Mr. Bowden is entitled to participate therein, Mr. Bowden shall be entitled to receive cash for each Award held by Mr. Bowden on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Bowden is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Bowden is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Bowden is entitled to participate therein, Mr. Bowden shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Bowden's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v), the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Bowden's Termination Date, or (ii) upon Mr. Bowden's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Bowden's death prior to the payment of all amounts due under this Agreement, Mr. Bowden's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Bowden and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Bowden's favor, the Company shall reimburse Mr. Bowden's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Bowden shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Bowden's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Bowden for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Bowden's favor, the Company shall reimburse Mr. Bowden's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Bowden's employment by the Company is terminated during the two year period following a Change in Control and Mr. Bowden accepts employment by Southern, Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Bowden is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Bowden hereunder shall not be reduced or suspended if Mr. Bowden accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Bowden's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Bowden, in the case of the Company, or to the Southern Board, in the case of Mr. Bowden. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Bowden, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Bowden. All other costs of arbitration shall be borne equally by Mr. Bowden and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Bowden's favor and Mr. Bowden is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Bowden under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Bowden. (c) Assignment. Mr. Bowden shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ GULF POWER COMPANY By: ____________________________________ MR. BOWDEN ----------------------------- Travis J. Bowden Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Travis J. Bowden 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Travis J. Bowden upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Travis J. Bowden, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Gulf Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Travis J. Bowden Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.85 22 EXHIBIT 10(a)85 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. A. W. Dahlberg ("Mr. Dahlberg"). W I T N E S S E T H: WHEREAS, Mr. Dahlberg is the Chairman of the Board and Chief Executive Officer of Southern; WHEREAS, Mr. Dahlberg is the Chairman of the Executive Committee of the Company; WHEREAS, Southern and the Company wish to provide to Mr. Dahlberg certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Dahlberg's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (d) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(d)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Dahlberg or any Group of which Mr. Dahlberg is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(d)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Dahlberg, any Group of which Mr. Dahlberg is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Dahlberg, any Group composed exclusively of employees of the Company, any Group of which Mr. Dahlberg is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (e) "COBRA Coverage" shall mean any continuation coverage to which Mr. Dahlberg or his dependents may be entitled pursuant to Code Section 4980B. (f) "Code" shall mean the Internal Revenue Code of 1986, as amended. (g) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (h) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (i) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (j) "Effective Date" shall mean the date of execution of this Agreement. (k) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (m) "Good Reason" shall mean, without Mr. Dahlberg's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Dahlberg's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Dahlberg's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Dahlberg's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Dahlberg participates or is a party as of the date of the Change in Control or the elimination of Mr. Dahlberg's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Dahlberg's work location to a location more than fifty (50) miles from the office where Mr. Dahlberg is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Dahlberg's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Dahlberg of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(m)(iv) shall not be a waiver of Mr. Dahlberg's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Dahlberg's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Dahlberg under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Dahlberg was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Dahlberg with the number of paid vacation days to which Mr. Dahlberg is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (n) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (o) "Group Health Plan" shall mean the group health plan covering Mr. Dahlberg as such plan may be amended from time to time. (p) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Dahlberg as such plan may be amended from time to time. (q) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (r) "Month of Service" shall mean any calendar month during which Mr. Dahlberg has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (s) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (t) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (u) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (w) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (x) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (y) "Southern" shall mean The Southern Company, its successors and assigns. (z) "Southern Board" shall mean the board of directors of Southern. (aa) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (bb) "Termination for Cause" or "Cause" shall mean the termination of Mr. Dahlberg's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Dahlberg substantially to perform his duties with the Company (other than any such failure resulting from Mr. Dahlberg's Total Disability or from Mr. Dahlberg's retirement or any such actual or anticipated failure resulting from termination by Mr. Dahlberg for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Dahlberg in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Dahlberg's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Dahlberg shall be deemed "willful" unless done, or omitted to be done, by Mr. Dahlberg not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Dahlberg shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Dahlberg and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Dahlberg was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(bb) and specifying the particulars thereof in detail. (cc) "Termination Date" shall mean the date on which Mr. Dahlberg's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(b) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (dd) "Total Disability" shall mean Mr. Dahlberg's total disability within the meaning of the Pension Plan. (ee) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (ff) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (gg) "Year of Service" shall mean Mr. Dahlberg's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Dahlberg has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Dahlberg's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Dahlberg voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Dahlberg shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Dahlberg shall not be eligible to receive benefits under this Agreement if Mr. Dahlberg: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Dahlberg meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Dahlberg an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Dahlberg under Code Section 280G exceeds three (3) times Mr. Dahlberg's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Dahlberg's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Dahlberg, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Dahlberg meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Dahlberg shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Dahlberg's Years of Service, not to exceed five (5) years. If Mr. Dahlberg elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Dahlberg's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Dahlberg's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Dahlberg pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Dahlberg in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Dahlberg in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Dahlberg or his dependents may elect. In the event that Mr. Dahlberg or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Dahlberg or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Dahlberg shall be entitled to receive cash in an amount equal to the Company's and Mr. Dahlberg's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Dahlberg meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Dahlberg's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Dahlberg is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Dahlberg under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Dahlberg's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Dahlberg under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Dahlberg is not entitled to benefits under Article V of the PPP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Dahlberg's Termination Date and to the extent Mr. Dahlberg is entitled to participate therein, Mr. Dahlberg shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Dahlberg is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Dahlberg's Termination Date and to the extent Mr. Dahlberg is entitled to participate therein, Mr. Dahlberg shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Performance Period by the number of months which have passed since the beginning of each of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Dahlberg is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Dahlberg's Termination Date and to the extent Mr. Dahlberg is entitled to participate therein, Mr. Dahlberg shall be entitled to receive cash for each Award held by Mr. Dahlberg on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Dahlberg is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Dahlberg is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Dahlberg is entitled to participate therein, Mr. Dahlberg shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Dahlberg's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Dahlberg's Termination Date, or (ii) upon Mr. Dahlberg's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Dahlberg's death prior to the payment of all amounts due under this Agreement, Mr. Dahlberg's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Dahlberg and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Dahlberg's favor, the Company shall reimburse Mr. Dahlberg's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Dahlberg shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Dahlberg's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Dahlberg for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Dalhberg's favor, the Company shall reimburse Mr. Dahlberg's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Dahlberg's employment by the Company is terminated during the two year period following a Change in Control and Mr. Dahlberg accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Dahlberg is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Dahlberg hereunder shall not be reduced or suspended if Mr. Dahlberg accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Dahlberg's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Dahlberg, in the case of the Company, or to the Southern Board, in the case of Mr. Dahlberg. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Dahlberg, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Dahlberg. All other costs of arbitration shall be borne equally by Mr. Dahlberg and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Dahlberg's favor and Mr. Dahlberg is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Dahlberg under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Dahlberg. (c) Assignment. Mr. Dahlberg shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ MR. DAHLBERG ----------------------------- A.W. Dahlberg Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. A. W. Dahlberg 65% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. A.W. Dahlberg upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, A.W. Dahlberg, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc.(collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. A.W. Dahlberg Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.86 23 EXHIBIT 10(a)86 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. Paul J. DeNicola ("Mr. DeNicola"). W I T N E S S E T H: WHEREAS, Mr. DeNicola is the President and Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. DeNicola certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. DeNicola's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. DeNicola or any Group of which Mr. DeNicola is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. DeNicola, any Group of which Mr. DeNicola is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. DeNicola, any Group composed exclusively of employees of the Company, any Group of which Mr. DeNicola is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. DeNicola or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. DeNicola's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. DeNicola's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. DeNicola's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. DeNicola's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. DeNicola participates or is a party as of the date of the Change in Control or the elimination of Mr. DeNicola's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. DeNicola's work location to a location more than fifty (50) miles from the office where Mr. DeNicola is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. DeNicola's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. DeNicola of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. DeNicola's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. DeNicola's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. DeNicola under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. DeNicola was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. DeNicola with the number of paid vacation days to which Mr. DeNicola is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. DeNicola, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. DeNicola, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. DeNicola has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. DeNicola's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. DeNicola substantially to perform his duties with the Company (other than any such failure resulting from Mr. DeNicola's Total Disability or from Mr. DeNicola's retirement or any such actual or anticipated failure resulting from termination by Mr. DeNicola for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. DeNicola in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. DeNicola's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. DeNicola shall be deemed "willful" unless done, or omitted to be done, by Mr. DeNicola not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. DeNicola shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. DeNicola and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. DeNicola was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. DeNicola's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. DeNicola's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. DeNicola's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. DeNicola has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. DeNicola's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. DeNicola voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. DeNicola shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. DeNicola shall not be eligible to receive benefits under this Agreement if Mr. DeNicola: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. DeNicola meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. DeNicola an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. DeNicola under Code Section 280G exceeds three (3) times Mr. DeNicola's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. DeNicola's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. DeNicola, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. DeNicola meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. DeNicola shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. DeNicola's Years of Service, not to exceed five (5) years. If Mr. DeNicola elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. DeNicola's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. DeNicola's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. DeNicola pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. DeNicola in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. DeNicola in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. DeNicola or his dependents may elect. In the event that Mr. DeNicola or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. DeNicola or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. DeNicola shall be entitled to receive cash in an amount equal to the Company's and Mr. DeNicola's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. DeNicola meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. DeNicola's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. DeNicola is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. DeNicola under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. DeNicola's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. DeNicola under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. DeNicola is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. DeNicola's Termination Date and to the extent Mr. DeNicola is entitled to participate therein, Mr. DeNicola shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. DeNicola is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. DeNicola's Termination Date and to the extent Mr. DeNicola is entitled to participate therein, Mr. DeNicola shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. DeNicola is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. DeNicola's Termination Date and to the extent Mr. DeNicola is entitled to participate therein, Mr. DeNicola shall be entitled to receive cash for each Award held by Mr. DeNicola on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. DeNicola is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. DeNicola is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. DeNicola is entitled to participate therein, Mr. DeNicola shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. DeNicola's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. DeNicola's Termination Date, or (ii) upon Mr. DeNicola's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. DeNicola's death prior to the payment of all amounts due under this Agreement, Mr. DeNicola's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. DeNicola and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. DeNicola's favor, the Company shall reimburse Mr. DeNicola's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. DeNicola shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. DeNicola's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. DeNicola for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. DeNicola's favor, the Company shall reimburse Mr. DeNicola's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. DeNicola's employment by the Company is terminated during the two year period following a Change in Control and Mr. DeNicola accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. DeNicola is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. DeNicola hereunder shall not be reduced or suspended if Mr. DeNicola accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. DeNicola's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. DeNicola, in the case of the Company, or to the Southern Board, in the case of Mr. DeNicola. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. DeNicola, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. DeNicola. All other costs of arbitration shall be borne equally by Mr. DeNicola and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. DeNicola's favor and Mr. DeNicola is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. DeNicola under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. DeNicola. (c) Assignment. Mr. DeNicola shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ MR. DENICOLA ----------------------------- Paul J. DeNicola Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Paul J. DeNicola 65% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Paul J. DeNicola upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Paul J. DeNicola, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc.(collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Paul J. DeNicola Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.87 24 EXHIBIT 10(a)87 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Mississippi Power Company (the "Company") and Mr. Dwight H. Evans ("Mr. Evans"). W I T N E S S E T H: WHEREAS, Mr. Evans is the President and Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Evans certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Evans's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Evans or any Group of which Mr. Evans is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Evans, any Group of which Mr. Evans is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Evans, any Group composed exclusively of employees of the Company, any Group of which Mr. Evans is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Evans or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Mississippi Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Evans's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Evans's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Evans's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Evans's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Evans participates or is a party as of the date of the Change in Control or the elimination of Mr. Evans' participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Evans's work location to a location more than fifty (50) miles from the office where Mr. Evans is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Evans's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Evans of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Evans's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Evans's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Evans under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Evans was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Evans with the number of paid vacation days to which Mr. Evans is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Evans, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Evans, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Evans has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Evans's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Evans substantially to perform his duties with the Company (other than any such failure resulting from Mr. Evans's Total Disability or from Mr. Evans's retirement or any such actual or anticipated failure resulting from termination by Mr. Evans for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Evans in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Evans's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Evans shall be deemed "willful" unless done, or omitted to be done, by Mr. Evans not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Evans shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Evans and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Evans was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Evans's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Evans's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Evans's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Evans has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Evans's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Evans voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Evans shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Evans shall not be eligible to receive benefits under this Agreement if Mr. Evans: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Evans meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Evans an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Evans under Code Section 280G exceeds three (3) times Mr. Evans's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Evans's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Evans, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Evans meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Evans shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Evans's Years of Service, not to exceed five (5) years. If Mr. Evans elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Evans's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Evans's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Evans pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Evans in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Evans in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Evans or his dependents may elect. In the event that Mr. Evans or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Evans or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Evans shall be entitled to receive cash in an amount equal to the Company's and Mr. Evans's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Evans meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Evans's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Evans is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Evans under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Evans' Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Evans under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Evans is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Evans's Termination Date and to the extent Mr. Evans is entitled to participate therein, Mr. Evans shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Evans is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Evans's Termination Date and to the extent Mr. Evans is entitled to participate therein, Mr. Evans shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Evans is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Evans's Termination Date and to the extent Mr. Evans is entitled to participate therein, Mr. Evans shall be entitled to receive cash for each Award held by Mr. Evans on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Evans is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Evans is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Evans is entitled to participate therein, Mr. Evans shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Evans's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Evans's Termination Date, or (ii) upon Mr. Evans's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Evans's death prior to the payment of all amounts due under this Agreement, Mr. Evans's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Evans and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Evans's favor, the Company shall reimburse Mr. Evans's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Evans shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Evans's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Evans for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Evans' favor, the Company shall reimburse Mr. Evans' legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Evans's employment by the Company is terminated during the two year period following a Change in Control and Mr. Evans accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Evans is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Evans hereunder shall not be reduced or suspended if Mr. Evans accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Evans's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Evans, in the case of the Company, or to the Southern Board, in the case of Mr. Evans. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Evans, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Evans. All other costs of arbitration shall be borne equally by Mr. Evans and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Evans's favor and Mr. Evans is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise the benefits payable to Mr. Evans under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Evans. (c) Assignment. Mr. Evans shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ MISSISSIPPI POWER COMPANY By: ____________________________________ MR. EVANS ----------------------------- Dwight H. Evans Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Dwight H. Evans 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Dwight H. Evans upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Dwight H. Evans, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Mississippi Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Dwight H. Evans Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.88 25 EXHIBIT 10(a)88 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Alabama Power Company (the "Company") and Mr. Banks Harry Farris ("Mr. Farris"). W I T N E S S E T H: WHEREAS, Mr. Farris is the Executive Vice President of the Company; WHEREAS, the Company wishes to provide to Mr. Farris certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Farris's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Farris or any Group of which Mr. Farris is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Farris, any Group of which Mr. Farris is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Farris, any Group composed exclusively of employees of the Company, any Group of which Mr. Farris is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Farris or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Alabama Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Farris's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Farris's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Farris's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Farris's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Farris participates or is a party as of the date of the Change in Control or the elimination of Mr. Farris' participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Farris's work location to a location more than fifty (50) miles from the office where Mr. Farris is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Farris's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Farris of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Farris's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Farris's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Farris under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Farris was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Farris with the number of paid vacation days to which Mr. Farris is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Farris, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Farris, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Farris has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Farris's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Farris substantially to perform his duties with the Company (other than any such failure resulting from Mr. Farris's Total Disability or from Mr. Farris's retirement or any such actual or anticipated failure resulting from termination by Mr. Farris for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Farris in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Farris's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Farris shall be deemed "willful" unless done, or omitted to be done, by Mr. Farris not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Farris shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Farris and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Farris was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(bb) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Farris's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Farris's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Farris's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Farris has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Farris's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Farris voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Farris shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Farris shall not be eligible to receive benefits under this Agreement if Mr. Farris: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Farris meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Farris an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Farris under Code Section 280G exceeds three (3) times Mr. Farris's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Farris's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Farris, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Farris meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Farris shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Farris's Years of Service, not to exceed five (5) years. If Mr. Farris elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Farris's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Farris's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Farris pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Farris in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Farris in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Farris or his dependents may elect. In the event that Mr. Farris or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Farris or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Farris shall be entitled to receive cash in an amount equal to the Company's and Mr. Farris's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Farris meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Farris's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Farris is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Farris under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Farris' Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Farris under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Farris is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Farris's Termination Date and to the extent Mr. Farris is entitled to participate therein, Mr. Farris shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Farris is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Farris's Termination Date and to the extent Mr. Farris is entitled to participate therein, Mr. Farris shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Farris is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Farris's Termination Date and to the extent Mr. Farris is entitled to participate therein, Mr. Farris shall be entitled to receive cash for each Award held by Mr. Farris on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Farris is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Farris is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Farris is entitled to participate therein, Mr. Farris shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Farris's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Farris's Termination Date, or (ii) upon Mr. Farris's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Farris's death prior to the payment of all amounts due under this Agreement, Mr. Farris's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Farris and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Farris's favor, the Company shall reimburse Mr. Farris's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Farris shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Farris's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Farris for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Farris' favor, the Company shall reimburse Mr. Farris' legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Farris's employment by the Company is terminated during the two year period following a Change in Control and Mr. Farris accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Farris is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Farris hereunder shall not be reduced or suspended if Mr. Farris accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Farris's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Farris, in the case of the Company, or to the Southern Board, in the case of Mr. Farris. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Farris, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Farris. All other costs of arbitration shall be borne equally by Mr. Farris and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Farris's favor and Mr. Farris is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Farris under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Farris. (c) Assignment. Mr. Farris shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ ALABAMA POWER COMPANY By: ____________________________________ MR. FARRIS ----------------------------- Banks Harry Farris Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Banks Harry Farris 45% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Banks Harry Farris upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Banks Harry Farris, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Alabama Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Banks Harry Farris Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.89 26 EXHIBIT 10(a)89 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Georgia Power Company (the "Company") and Mr. Henry Allen Franklin ("Mr. Franklin"). W I T N E S S E T H: WHEREAS, Mr. Franklin is the Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Franklin certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Franklin's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Franklin or any Group of which Mr. Franklin is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Franklin, any Group of which Mr. Franklin is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Franklin, any Group composed exclusively of employees of the Company, any Group of which Mr. Franklin is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Franklin or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Georgia Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Franklin's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Franklin's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Franklin's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Franklin's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Franklin participates or is a party as of the date of the Change in Control or the elimination of Mr. Franklin's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Franklin's work location to a location more than fifty (50) miles from the office where Mr. Franklin is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Franklin's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Franklin of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Franklin's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Franklin's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Franklin under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Franklin was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Franklin with the number of paid vacation days to which Mr. Franklin is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Franklin, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Franklin, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Franklin has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Franklin's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Franklin substantially to perform his duties with the Company (other than any such failure resulting from Mr. Franklin's Total Disability or from Mr. Franklin's retirement or any such actual or anticipated failure resulting from termination by Mr. Franklin for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Franklin in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Franklin's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Franklin shall be deemed "willful" unless done, or omitted to be done, by Mr. Franklin not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Franklin shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Franklin and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Franklin was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Franklin's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Franklin's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Franklin's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Franklin has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Franklin's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Franklin voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Franklin shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Franklin shall not be eligible to receive benefits under this Agreement if Mr. Franklin: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Franklin meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Franklin an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Franklin under Code Section 280G exceeds three (3) times Mr. Franklin's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Franklin's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Franklin, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Franklin meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Franklin shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Franklin's Years of Service, not to exceed five (5) years. If Mr. Franklin elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Franklin's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Franklin's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Franklin pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Franklin in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Franklin in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Franklin or his dependents may elect. In the event that Mr. Franklin or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Franklin or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Franklin shall be entitled to receive cash in an amount equal to the Company's and Mr. Franklin's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Franklin meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Franklin's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Franklin is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Franklin under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Franklin's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Franklin under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Franklin is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Franklin's Termination Date and to the extent Mr. Franklin is entitled to participate therein, Mr. Franklin shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Franklin is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Franklin's Termination Date and to the extent Mr. Franklin is entitled to participate therein, Mr. Franklin shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of each of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Franklin is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Franklin's Termination Date and to the extent Mr. Franklin is entitled to participate therein, Mr. Franklin shall be entitled to receive cash for each Award held by Mr. Franklin on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Franklin is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Franklin is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Franklin is entitled to participate therein, Mr. Franklin shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Franklin's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Franklin's Termination Date, or (ii) upon Mr. Franklin's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Franklin's death prior to the payment of all amounts due under this Agreement, Mr. Franklin's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Franklin and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Franklin's favor, the Company shall reimburse Mr. Franklin's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Franklin shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Franklin's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Franklin for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Franklin's favor, the Company shall reimburse Mr. Franklin's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Franklin's employment by the Company is terminated during the two year period following a Change in Control and Mr. Franklin accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Franklin is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Franklin hereunder shall not be reduced or suspended if Mr. Franklin accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Franklin's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Franklin, in the case of the Company, or to the Southern Board, in the case of Mr. Franklin. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Franklin, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Franklin. All other costs of arbitration shall be borne equally by Mr. Franklin and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Franklin's favor and Mr. Franklin is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Franklin under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Franklin. (c) Assignment. Mr. Franklin shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ GEORGIA POWER COMPANY By: ____________________________________ MR. FRANKLIN ----------------------------- Henry Allen Franklin Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Henry Allen Franklin 65% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Henry Allen Franklin upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Henry Allen Franklin, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Georgia Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Henry Allen Franklin Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.90 27 EXHIBIT 10(a)90 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Nuclear Operating Company, Inc. (the "Company") and Mr. William G. Hairston, III ("Mr. Hairston"). W I T N E S S E T H: WHEREAS, Mr. Hairston is the President and Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Hairston certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Hairston's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Hairston or any Group of which Mr. Hairston is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Hairston, any Group of which Mr. Hairston is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Hairston, any Group composed exclusively of employees of the Company, any Group of which Mr. Hairston is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Hairston or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Nuclear Operating Company, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Hairston's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Hairston's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Hairston's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Hairston's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Hairston participates or is a party as of the date of the Change in Control or the elimination of Mr. Hairston's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Hairston's work location to a location more than fifty (50) miles from the office where Mr. Hairston is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Hairston's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Hairston of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Hairston's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Hairston's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Hairston under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Hairston was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Hairston with the number of paid vacation days to which Mr. Hairston is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Hairston, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Hairston, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Hairston has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Hairston's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Hairston substantially to perform his duties with the Company (other than any such failure resulting from Mr. Hairston's Total Disability or from Mr. Hairston's retirement or any such actual or anticipated failure resulting from termination by Mr. Hairston for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Hairston in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Hairston's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Hairston shall be deemed "willful" unless done, or omitted to be done, by Mr. Hairston not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Hairston shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Hairston and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Hairston was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Hairston's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Hairston's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Hairston's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Hairston has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Hairston's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Hairston voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Hairston shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Hairston shall not be eligible to receive benefits under this Agreement if Mr. Hairston: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Hairston meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Hairston an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Hairston under Code Section 280G exceeds three (3) times Mr. Hairston's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Hairston's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Hairston, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Hairston meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Hairston shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Hairston's Years of Service, not to exceed five (5) years. If Mr. Hairston elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Hairston's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Hairston's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Hairston pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Hairston in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Hairston in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Hairston or his dependents may elect. In the event that Mr. Hairston or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Hairston or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Hairston shall be entitled to receive cash in an amount equal to the Company's and Mr. Hairston's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Hairston meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Hairston's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Hairston is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Hairston under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Hairston's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Hairston under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Hairston is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Hairston's Termination Date and to the extent Mr. Hairston is entitled to participate therein, Mr. Hairston shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Hairston is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Hairston's Termination Date and to the extent Mr. Hairston is entitled to participate therein, Mr. Hairston shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Hairston is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Hairston's Termination Date and to the extent Mr. Hairston is entitled to participate therein, Mr. Hairston shall be entitled to receive cash for each Award held by Mr. Hairston on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Hairston is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Hairston is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Hairston is entitled to participate therein, Mr. Hairston shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Hairston's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Hairston's Termination Date, or (ii) upon Mr. Hairston's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Hairston's death prior to the payment of all amounts due under this Agreement, Mr. Hairston's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Hairston and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Hairston's favor, the Company shall reimburse Mr. Hairston's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Hairston shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Hairston's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Hairston for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Hairston's favor, the Company shall reimburse Mr. Hairston's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Hairston's employment by the Company is terminated during the two year period following a Change in Control and Mr. Hairston accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Hairston is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Hairston hereunder shall not be reduced or suspended if Mr. Hairston accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Hairston's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Hairston, in the case of the Company, or to the Southern Board, in the case of Mr. Hairston. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Hairston, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Hairston. All other costs of arbitration shall be borne equally by Mr. Hairston and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Hairston's favor and Mr. Hairston is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Hairston under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Hairston. (c) Assignment. Mr. Hairston shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN NUCLEAR OPERATING COMPANY, INC. By: ____________________________________ MR. HAIRSTON ----------------------------- William G. Hairston, III Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. William G. Hairston, III 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. William G. Hairston, III upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, William G. Hairston, III, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Nuclear Operating Company, Inc. (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. William G. Hairston, III Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.91 28 EXHIBIT 10(a)91 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Alabama Power Company (the "Company") and Mr. Elmer B. Harris ("Mr. Harris"). W I T N E S S E T H: WHEREAS, Mr. Harris is the President and Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Harris certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Harris's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Harris or any Group of which Mr. Harris is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Harris, any Group of which Mr. Harris is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Harris, any Group composed exclusively of employees of the Company, any Group of which Mr. Harris is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Harris or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Alabama Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Harris's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Harris's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Harris's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Harris's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Harris participates or is a party as of the date of the Change in Control or the elimination of Mr. Harris' participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Harris's work location to a location more than fifty (50) miles from the office where Mr. Harris is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Harris's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Harris of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Harris's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Harris's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Harris under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Harris was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Harris with the number of paid vacation days to which Mr. Harris is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Harris, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Harris, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Harris has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Harris's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Harris substantially to perform his duties with the Company (other than any such failure resulting from Mr. Harris's Total Disability or from Mr. Harris's retirement or any such actual or anticipated failure resulting from termination by Mr. Harris for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Harris in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Harris's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Harris shall be deemed "willful" unless done, or omitted to be done, by Mr. Harris not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Harris shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Harris and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Harris was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Harris's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Harris's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Harris's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Harris has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Harris's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Harris voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Harris shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Harris shall not be eligible to receive benefits under this Agreement if Mr. Harris: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Harris meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Harris an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Harris under Code Section 280G exceeds three (3) times Mr. Harris's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Harris's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Harris, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Harris meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Harris shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Harris's Years of Service, not to exceed five (5) years. If Mr. Harris elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Harris's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Harris's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Harris pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Harris in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Harris in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Harris or his dependents may elect. In the event that Mr. Harris or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Harris or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Harris shall be entitled to receive cash in an amount equal to the Company's and Mr. Harris's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Harris meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Harris's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Harris is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Harris under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Harris' Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Harris under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Harris is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Harris's Termination Date and to the extent Mr. Harris is entitled to participate therein, Mr. Harris shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Harris is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Harris's Termination Date and to the extent Mr. Harris is entitled to participate therein, Mr. Harris shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Harris is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Harris's Termination Date and to the extent Mr. Harris is entitled to participate therein, Mr. Harris shall be entitled to receive cash for each Award held by Mr. Harris on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Harris is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Harris is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Harris is entitled to participate therein, Mr. Harris shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Harris's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Harris's Termination Date, or (ii) upon Mr. Harris's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Harris's death prior to the payment of all amounts due under this Agreement, Mr. Harris's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Harris and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Harris's favor, the Company shall reimburse Mr. Harris's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Harris shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Harris's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Harris for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Harris' favor, the Company shall reimburse Mr. Harris' legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Harris's employment by the Company is terminated during the two year period following a Change in Control and Mr. Harris accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Harris is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Harris hereunder shall not be reduced or suspended if Mr. Harris accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Harris's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Harris, in the case of the Company, or to the Southern Board, in the case of Mr. Harris. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Harris, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Harris. All other costs of arbitration shall be borne equally by Mr. Harris and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Harris's favor and Mr. Harris is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Harris under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Harris. (c) Assignment. Mr. Harris shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ ALABAMA POWER COMPANY By: ____________________________________ MR. HARRIS ----------------------------- Elmer B. Harris Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Elmer B. Harris 65% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Elmer B. Harris upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Elmer B. Harris, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Alabama Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Elmer B. Harris Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.92 29 EXHIBIT 10(a)92 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Savannah Electric & Power Company (the "Company") and Mr. G. Edison Holland, Jr. ("Mr. Holland"). W I T N E S S E T H: WHEREAS, Mr. Holland is the President and Chief Executive Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Holland certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Holland's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Holland or any Group of which Mr. Holland is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Holland, any Group of which Mr. Holland is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Holland, any Group composed exclusively of employees of the Company, any Group of which Mr. Holland is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Holland or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Savannah Electric & Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Holland's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Holland's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Holland's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Holland's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Holland participates or is a party as of the date of the Change in Control or the elimination of Mr. Holland's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Holland's work location to a location more than fifty (50) miles from the office where Mr. Holland is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Holland's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Holland of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Holland's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Holland's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Holland under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Holland was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Holland with the number of paid vacation days to which Mr. Holland is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Holland, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Holland, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Holland has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Holland's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Holland substantially to perform his duties with the Company (other than any such failure resulting from Mr. Holland's Total Disability or from Mr. Holland's retirement or any such actual or anticipated failure resulting from termination by Mr. Holland for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Holland in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Holland's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Holland shall be deemed "willful" unless done, or omitted to be done, by Mr. Holland not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Holland shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Holland and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Holland was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Holland's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Holland's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Holland's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Holland has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Holland's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Holland voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Holland shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Holland shall not be eligible to receive benefits under this Agreement if Mr. Holland: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Holland meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Holland an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Holland under Code Section 280G exceeds three (3) times Mr. Holland's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Holland's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Holland, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Holland meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Holland shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Holland's Years of Service, not to exceed five (5) years. If Mr. Holland elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Holland's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Holland's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Holland pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Holland in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Holland in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Holland or his dependents may elect. In the event that Mr. Holland or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Holland or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Holland shall be entitled to receive cash in an amount equal to the Company's and Mr. Holland's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Holland meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Holland's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Holland is actually subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Holland under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Holland's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Holland under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Holland is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Holland's Termination Date and to the extent Mr. Holland is entitled to participate therein, Mr. Holland shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Holland is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Holland's Termination Date and to the extent Mr. Holland is entitled to participate therein, Mr. Holland shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Holland is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Holland's Termination Date and to the extent Mr. Holland is entitled to participate therein, Mr. Holland shall be entitled to receive cash for each Award held by Mr. Holland on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Holland is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Holland is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Holland is entitled to participate therein, Mr. Holland shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Holland's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Holland's Termination Date, or (ii) upon Mr. Holland's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Holland's death prior to the payment of all amounts due under this Agreement, Mr. Holland's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Holland and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Holland's favor, the Company shall reimburse Mr. Holland's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Holland shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Holland's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Holland for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Holland's favor, the Company shall reimburse Mr. Holland's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Holland's employment by the Company is terminated during the two year period following a Change in Control and Mr. Holland accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Holland is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Holland hereunder shall not be reduced or suspended if Mr. Holland accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Holland's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Holland, in the case of the Company, or to the Southern Board, in the case of Mr. Holland. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Holland, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Holland. All other costs of arbitration shall be borne equally by Mr. Holland and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Holland's favor and Mr. Holland is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Holland under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Holland. (c) Assignment. Mr. Holland shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SAVANNAH ELECTRIC & POWER COMPANY By: ____________________________________ MR. HOLLAND ----------------------------- G. Edison Holland, Jr. Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. G. Edison Holland, Jr. 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. G. Edison Holland, Jr. upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, G. Edison Holland, Jr., understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Savannah Electric & Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. G. Edison Holland, Jr. Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.93 30 EXHIBIT 10(a)93 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. C. Alan Martin ("Mr. Martin"). W I T N E S S E T H: WHEREAS, Mr. Martin is the Executive Vice President and Chief Marketing Officer of the Company; WHEREAS, the Company wishes to provide to Mr. Martin certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Martin's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Martin or any Group of which Mr. Martin is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Martin, any Group of which Mr. Martin is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Martin, any Group composed exclusively of employees of the Company, any Group of which Mr. Martin is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Martin or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Martin's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Martin's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Martin's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Martin's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Martin participates or is a party as of the date of the Change in Control or the elimination of Mr. Martin's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Martin's work location to a location more than fifty (50) miles from the office where Mr. Martin is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Martin's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Martin of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Martin's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Martin's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Martin under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Martin was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Martin with the number of paid vacation days to which Mr. Martin is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Martin, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Martin, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Martin has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Martin's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Martin substantially to perform his duties with the Company (other than any such failure resulting from Mr. Martin's Total Disability or from Mr. Martin's retirement or any such actual or anticipated failure resulting from termination by Mr. Martin for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Martin in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Martin's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Martin shall be deemed "willful" unless done, or omitted to be done, by Mr. Martin not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Martin shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Martin and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Martin was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Martin's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Martin's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Martin's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Martin has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Martin's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Martin voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Martin shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Martin shall not be eligible to receive benefits under this Agreement if Mr. Martin: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Martin meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Martin an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Martin under Code Section 280G exceeds three (3) times Mr. Martin's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Martin's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Martin, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Martin meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Martin shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Martin's Years of Service, not to exceed five (5) years. If Mr. Martin elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Martin's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Martin's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Martin pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Martin in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Martin in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Martin or his dependents may elect. In the event that Mr. Martin or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Martin or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Martin shall be entitled to receive cash in an amount equal to the Company's and Mr. Martin's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Martin meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Martin's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Martin is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Martin under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Martin's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Martin under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Martin is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Martin's Termination Date and to the extent Mr. Martin is entitled to participate therein, Mr. Martin shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Martin is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Martin's Termination Date and to the extent Mr. Martin is entitled to participate therein, Mr. Martin shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Martin is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Martin's Termination Date and to the extent Mr. Martin is entitled to participate therein, Mr. Martin shall be entitled to receive cash for each Award held by Mr. Martin on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Martin is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Martin is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Martin is entitled to participate therein, Mr. Martin shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Martin's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Martin's Termination Date, or (ii) upon Mr. Martin's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Martin's death prior to the payment of all amounts due under this Agreement, Mr. Martin's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Martin and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Martin's favor, the Company shall reimburse Mr. Martin's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Martin shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Martin's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Martin for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Martin's favor, the Company shall reimburse Mr. Martin's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Martin's employment by the Company is terminated during the two year period following a Change in Control and Mr. Martin accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Martin is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Martin hereunder shall not be reduced or suspended if Mr. Martin accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Martin's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Martin, in the case of the Company, or to the Southern Board, in the case of Mr. Martin. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Martin, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Martin. All other costs of arbitration shall be borne equally by Mr. Martin and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Martin's favor and Mr. Martin is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Martin under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Martin. (c) Assignment. Mr. Martin shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting,), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ MR. MARTIN ----------------------------- C. Alan Martin Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. C. Alan Martin 45% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. C. Alan Martin upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, C. Alan Martin, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc.(collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. C. Alan Martin Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.94 31 EXHIBIT 10(a)94 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. Charles Douglas McCrary ("Mr. McCrary"). W I T N E S S E T H: WHEREAS, Mr. McCrary is Executive Vice President of the Company; WHEREAS, the Company wishes to provide to Mr. McCrary certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. McCrary's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. McCrary or any Group of which Mr. McCrary is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. McCrary, any Group of which Mr. McCrary is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. McCrary, any Group composed exclusively of employees of the Company, any Group of which Mr. McCrary is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. McCrary or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. McCrary's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. McCrary's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. McCrary's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. McCrary's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. McCrary participates or is a party as of the date of the Change in Control or the elimination of Mr. McCrary's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. McCrary's work location to a location more than fifty (50) miles from the office where Mr. McCrary is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. McCrary's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. McCrary of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. McCrary's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. McCrary's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. McCrary under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. McCrary was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. McCrary with the number of paid vacation days to which Mr. McCrary is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. McCrary, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. McCrary, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. McCrary has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. McCrary's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. McCrary substantially to perform his duties with the Company (other than any such failure resulting from Mr. McCrary's Total Disability or from Mr. McCrary's retirement or any such actual or anticipated failure resulting from termination by Mr. McCrary for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. McCrary in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. McCrary's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. McCrary shall be deemed "willful" unless done, or omitted to be done, by Mr. McCrary not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. McCrary shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. McCrary and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. McCrary was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. McCrary's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. McCrary's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. McCrary's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. McCrary has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. McCrary's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. McCrary voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. McCrary shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. McCrary shall not be eligible to receive benefits under this Agreement if Mr. McCrary: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. McCrary meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. McCrary an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. McCrary under Code Section 280G exceeds three (3) times Mr. McCrary's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. McCrary's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. McCrary, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. McCrary meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. McCrary shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. McCrary's Years of Service, not to exceed five (5) years. If Mr. McCrary elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. McCrary's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. McCrary's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. McCrary pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. McCrary in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. McCrary in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. McCrary or his dependents may elect. In the event that Mr. McCrary or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. McCrary or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. McCrary shall be entitled to receive cash in an amount equal to the Company's and Mr. McCrary's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. McCrary meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. McCrary's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. McCrary is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. McCrary under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. McCrary's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. McCrary under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. McCrary is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. McCrary's Termination Date and to the extent Mr. McCrary is entitled to participate therein, Mr. McCrary shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. McCrary is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. McCrary's Termination Date and to the extent Mr. McCrary is entitled to participate therein, Mr. McCrary shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. McCrary is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. McCrary's Termination Date and to the extent Mr. McCrary is entitled to participate therein, Mr. McCrary shall be entitled to receive cash for each Award held by Mr. McCrary on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. McCrary is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. McCrary is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. McCrary is entitled to participate therein, Mr. McCrary shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. McCrary's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. McCrary's Termination Date, or (ii) upon Mr. McCrary's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. McCrary's death prior to the payment of all amounts due under this Agreement, Mr. McCrary's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. McCrary and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. McCrary's favor, the Company shall reimburse Mr. McCrary's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. McCrary shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. McCrary's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. McCrary for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. McCrary's favor, the Company shall reimburse Mr. McCrary's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. McCrary's employment by the Company is terminated during the two year period following a Change in Control and Mr. McCrary accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. McCrary is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. McCrary hereunder shall not be reduced or suspended if Mr. McCrary accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. McCrary's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. McCrary, in the case of the Company, or to the Southern Board, in the case of Mr. McCrary. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. McCrary, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. McCrary. All other costs of arbitration shall be borne equally by Mr. McCrary and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. McCrary's favor and Mr. McCrary is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. McCrary under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. McCrary. (c) Assignment. Mr. McCrary shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ MR. MCCRARY ----------------------------- Charles Douglas McCrary Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Charles Douglas McCrary 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Charles Douglas McCrary upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Charles Douglas McCrary , understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc. (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Charles Douglas McCrary Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.95 32 EXHIBIT 10(a)95 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Georgia Power Company (the "Company") and Mr. David M. Ratcliffe ("Mr. Ratcliffe"). W I T N E S S E T H: WHEREAS, Mr. Ratcliffe is the Executive Vice President and Chief Financial Officer of the Company; WHEREAS, the Company wish to provide to Mr. Ratcliffe certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Ratcliffe's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary. (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Ratcliffe or any Group of which Mr. Ratcliffe is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Ratcliffe, any Group of which Mr. Ratcliffe is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Ratcliffe, any Group composed exclusively of employees of the Company, any Group of which Mr. Ratcliffe is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Ratcliffe or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Georgia Power Company, its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Ratcliffe's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Ratcliffe's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Ratcliffe's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Ratcliffe's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Ratcliffe participates or is a party as of the date of the Change in Control or the elimination of Mr. Ratcliffe's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Ratcliffe's work location to a location more than fifty (50) miles from the office where Mr. Ratcliffe is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Ratcliffe's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Ratcliffe of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Ratcliffe's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Ratcliffe's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Ratcliffe under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Ratcliffe was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Ratcliffe with the number of paid vacation days to which Mr. Ratcliffe is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Ratcliffe, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Ratcliffe, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Ratcliffe has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Executive Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Ratcliffe's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Ratcliffe substantially to perform his duties with the Company (other than any such failure resulting from Mr. Ratcliffe's Total Disability or from Mr. Ratcliffe's retirement or any such actual or anticipated failure resulting from termination by Mr. Ratcliffe for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Ratcliffe in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Ratcliffe's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Ratcliffe shall be deemed "willful" unless done, or omitted to be done, by Mr. Ratcliffe not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Ratcliffe shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Ratcliffe and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Ratcliffe was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Ratcliffe's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Ratcliffe's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Ratcliffe's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Ratcliffe has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Ratcliffe's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Ratcliffe voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Ratcliffe shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Ratcliffe shall not be eligible to receive benefits under this Agreement if Mr. Ratcliffe: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Ratcliffe meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Ratcliffe an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Ratcliffe under Code Section 280G exceeds three (3) times Mr. Ratcliffe's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Ratcliffe's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Ratcliffe, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Ratcliffe meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Ratcliffe shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Ratcliffe's Years of Service, not to exceed five (5) years. If Mr. Ratcliffe elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Ratcliffe's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Ratcliffe's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Ratcliffe pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Ratcliffe in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Ratcliffe in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Ratcliffe or his dependents may elect. In the event that Mr. Ratcliffe or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Ratcliffe or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Ratcliffe shall be entitled to receive cash in an amount equal to the Company's and Mr. Ratcliffe's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Ratcliffe meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Ratcliffe's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Ratcliffe is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Ratcliffe under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Ratcliffe's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Ratcliffe under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Ratcliffe is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Ratcliffe's Termination Date and to the extent Mr. Ratcliffe is entitled to participate therein, Mr. Ratcliffe shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Ratcliffe is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Ratcliffe's Termination Date and to the extent Mr. Ratcliffe is entitled to participate therein, Mr. Ratcliffe shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Ratcliffe is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Ratcliffe's Termination Date and to the extent Mr. Ratcliffe is entitled to participate therein, Mr. Ratcliffe shall be entitled to receive cash for each Award held by Mr. Ratcliffe on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Ratcliffe is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Ratcliffe is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Ratcliffe is entitled to participate therein, Mr. Ratcliffe shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Ratcliffe's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Ratcliffe's Termination Date, or (ii) upon Mr. Ratcliffe's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Ratcliffe's death prior to the payment of all amounts due under this Agreement, Mr. Ratcliffe's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Ratcliffe and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Ratcliffe's favor, the Company shall reimburse Mr. Ratcliffe's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Ratcliffe shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Ratcliffe's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Ratcliffe for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Ratcliffe's favor, the Company shall reimburse Mr. Ratcliffe's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Ratcliffe's employment by the Company is terminated during the two year period following a Change in Control and Mr. Ratcliffe accepts employment by Southern, Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Ratcliffe is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Ratcliffe hereunder shall not be reduced or suspended if Mr. Ratcliffe accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Ratcliffe's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Ratcliffe, in the case of the Company, or to the Southern Board, in the case of Mr. Ratcliffe. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Ratcliffe, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Ratcliffe. All other costs of arbitration shall be borne equally by Mr. Ratcliffe and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Ratcliffe's favor and Mr. Ratcliffe is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Ratcliffe under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Ratcliffe. (c) Assignment. Mr. Ratcliffe shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ GEORGIA POWER COMPANY By: ____________________________________ MR. RATCLIFFE ----------------------------- David M. Ratcliffe Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. David M. Ratcliffe 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. David M. Ratcliffe upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, David M. Ratcliffe, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Georgia Power Company (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. David M. Ratcliffe Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.96 33 EXHIBIT 10(a)96 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. Stephen A. Wakefield ("Mr. Wakefield"). W I T N E S S E T H: WHEREAS, Mr. Wakefield is the Senior Vice President and General Counsel of the Company; WHEREAS, the Company wish to provide to Mr. Wakefield certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Wakefield's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Wakefield or any Group of which Mr. Wakefield is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Wakefield, any Group of which Mr. Wakefield is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Wakefield, any Group composed exclusively of employees of the Company, any Group of which Mr. Wakefield is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Wakefield or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Wakefield's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Wakefield's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Wakefield's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Wakefield's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Wakefield participates or is a party as of the date of the Change in Control or the elimination of Mr. Wakefield's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Wakefield's work location to a location more than fifty (50) miles from the office where Mr. Wakefield is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Wakefield's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Wakefield of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Wakefield's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Wakefield's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Wakefield under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Wakefield was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Wakefield with the number of paid vacation days to which Mr. Wakefield is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Wakefield, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Wakefield, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Wakefield has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Wakefield's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Wakefield substantially to perform his duties with the Company (other than any such failure resulting from Mr. Wakefield's Total Disability or from Mr. Wakefield's retirement or any such actual or anticipated failure resulting from termination by Mr. Wakefield for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Wakefield in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Wakefield's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Wakefield shall be deemed "willful" unless done, or omitted to be done, by Mr. Wakefield not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Wakefield shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Wakefield and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Wakefield was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(dd) and specifying the particulars thereof in detail. (ee) "Termination Date" shall mean the date on which Mr. Wakefield's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ff) "Total Disability" shall mean Mr. Wakefield's total disability within the meaning of the Pension Plan. (gg) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (hh) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (ii) "Year of Service" shall mean Mr. Wakefield's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Wakefield has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Wakefield's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Wakefield voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Wakefield shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Wakefield shall not be eligible to receive benefits under this Agreement if Mr. Wakefield: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Wakefield meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Wakefield an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Wakefield under Code Section 280G exceeds three (3) times Mr. Wakefield's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Wakefield's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Wakefield, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Wakefield meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Wakefield shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Wakefield's Years of Service, not to exceed five (5) years. If Mr. Wakefield elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Wakefield's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Wakefield's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Wakefield pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Wakefield in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Wakefield in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Wakefield or his dependents may elect. In the event that Mr. Wakefield or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Wakefield or his dependents by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Wakefield shall be entitled to receive cash in an amount equal to the Company's and Mr. Wakefield's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Wakefield meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Wakefield's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Wakefield is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Wakefield under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act. (B) The restrictions and deferral limitations applicable to any of Mr. Wakefield's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Wakefield under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Wakefield is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Wakefield's Termination Date and to the extent Mr. Wakefield is entitled to participate therein, Mr. Wakefield shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Wakefield is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Wakefield's Termination Date and to the extent Mr. Wakefield is entitled to participate therein, Mr. Wakefield shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Wakefield is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Wakefield's Termination Date and to the extent Mr. Wakefield is entitled to participate therein, Mr. Wakefield shall be entitled to receive cash for each Award held by Mr. Wakefield on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Wakefield is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Wakefield is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Wakefield is entitled to participate therein, Mr. Wakefield shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Wakefield's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Wakefield's Termination Date, or (ii) upon Mr. Wakefield's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Wakefield's death prior to the payment of all amounts due under this Agreement, Mr. Wakefield's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Wakefield and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Wakefield's favor, the Company shall reimburse Mr. Wakefield's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Wakefield shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Wakefield's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Wakefield for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Wakefield's favor, the Company shall reimburse Mr. Wakefield's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Wakefield's employment by the Company is terminated during the two year period following a Change in Control and Mr. Wakefield accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Wakefield is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Wakefield hereunder shall not be reduced or suspended if Mr. Wakefield accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Wakefield's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Wakefield, in the case of the Company, or to the Southern Board, in the case of Mr. Wakefield. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Wakefield, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Wakefield. All other costs of arbitration shall be borne equally by Mr. Wakefield and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Wakefield's favor and Mr. Wakefield is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing in any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Wakefield under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Wakefield. (c) Assignment. Mr. Wakefield shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By: ____________________________________ SOUTHERN COMPANY SERVICES, INC. By: ____________________________________ MR. WAKEFIELD ----------------------------- Stephen A. Wakefield Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. Stephen A. Wakefield 50% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. Stephen A. Wakefield upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, Stephen A. Wakefield, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc. (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. Stephen A. Wakefield Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.A.97 34 EXHIBIT 10(a)97 CHANGE IN CONTROL AGREEMENT THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and between The Southern Company ("Southern"), Southern Company Services, Inc. (the "Company") and Mr. W. Lawrence Westbrook ("Mr. Westbrook"). W I T N E S S E T H: WHEREAS, Mr. Westbrook is the Executive Vice President and Chief Financial Officer of the Company; WHEREAS, the Company wish to provide to Mr. Westbrook certain severance benefits under certain circumstances following a change in control (as defined herein) of Southern or the Company; NOW, THEREFORE, in consideration of the premises, and the agreements of the parties set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Annual Compensation" shall mean Mr. Westbrook's highest annual base salary rate for the twelve (12) month period immediately preceding the date of the Change in Control plus market level target annual bonus as set forth on Exhibit A hereof. (b) "Beneficial Ownership" shall mean beneficial ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act. (c) "Board" shall mean the board of directors of the Company. (d) "Business Combination" shall mean a reorganization, merger or consolidation of Southern or sale or other disposition of all or substantially all of the assets of Southern. (e) "Change in Control" shall mean any of the following: (i) The Consummation of an acquisition by any Person of Beneficial Ownership of 20% or more of Southern's Voting Securities; provided, however, that for purposes of this Paragraph 1.(e)(i), the following acquisitions of Southern's Voting Securities shall not constitute a Change in Control: (A) any acquisition directly from Southern; (B) any acquisition by Southern; (C) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary; (D) any acquisition by a qualified pension plan or publicly held mutual fund; (E) any acquisition by a Group composed exclusively of employees of Southern, or any Southern Subsidiary; (F) any acquisition by Mr. Westbrook or any Group of which Mr. Westbrook is a party; or (G) any Business Combination which would not otherwise constitute a change in control because of the application of clauses (A), (B) and (C) of Paragraph 1.(e)(iii); (ii) A change in the composition of the Southern Board whereby individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Southern Board; (iii) Consummation of a Business Combination, provided, however, that such a Business Combination shall not constitute a Change in Control if all three (3) of the following conditions are met: (A) all or substantially all of the individuals and entities who held Beneficial Ownership, respectively, of Southern's Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, 65% or more of the combined voting power of the Voting Securities of the corporation surviving or resulting from such Business Combination, (including, without limitation, a corporation which as a result of such transaction holds Beneficial Ownership of all or substantially all of Southern's Voting Securities or all or substantially all of Southern's assets) (such surviving or resulting corporation to be referred to as "Surviving Company"), in substantially the same proportions as their ownership, immediately prior to such Business Combination, of Southern's Voting Securities; (B) no Person (excluding any corporation resulting from such Business Combination, any employee benefit plan (or related trust) of Southern, any Southern Subsidiary or Surviving Company, Mr. Westbrook, any Group of which Mr. Westbrook is a party, any Group composed exclusively of Company employees, any qualified pension plan (or related trust) or any publicly held mutual fund) holds Beneficial Ownership, directly or indirectly, of 20% or more of the combined voting power of the then outstanding Voting Securities of Surviving Company except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of Surviving Company were members of the Incumbent Board at the earlier of the date of execution of the initial agreement, or of the action of the Southern Board, providing for such Business Combination. (iv) The Consummation of an acquisition by any Person of Beneficial Ownership of 50% or more of the combined voting power of the then outstanding Voting Securities of the Company; provided, however, that for purposes of this Paragraph 1.(e)(iv), any acquisition by Mr. Westbrook, any Group composed exclusively of employees of the Company, any Group of which Mr. Westbrook is a party, any qualified pension plan (or related trust), any publicly held mutual fund, any employee benefit plan (or related trust) sponsored or maintained by Southern or any Southern Subsidiary shall not constitute a Change in Control; (v) Consummation of a reorganization, merger or consolidation of the Company (an "Employing Company Business Combination"), in each case, unless, following such Employing Company Business Combination, Southern Controls the corporation or other entity surviving or resulting from such Employing Company Business Combination; or (vi) Consummation of the sale or other disposition of all or substantially all of the assets of the Company to a corporation or other entity which Southern does not Control. (f) "COBRA Coverage" shall mean any continuation coverage to which Mr. Westbrook or his dependents may be entitled pursuant to Code Section 4980B. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended. (h) "Company" shall mean Southern Company Services, Inc., its successors and assigns. (i) "Consummation" shall mean the completion of the final act necessary to complete a transaction as a matter of law, including, but not limited to, any required approvals by the corporation's shareholders and board of directors, the transfer of legal and beneficial title to securities or assets and the final approval of the transaction by any applicable domestic or foreign governments or governmental agencies. (j) "Control" shall mean, in the case of a corporation, Beneficial Ownership of more than 50% of the combined voting power of the corporation's Voting Securities, or in the case of any other entity, Beneficial Ownership of more than 50% of such entity's voting equity interests. (k) "Effective Date" shall mean the date of execution of this Agreement. (l) "Employee Outplacement Program" shall mean the program established by the Company from time to time for the purpose of assisting participants covered by the plan in finding employment outside of the Company which provides for the following services: (i) self-assessment, career decision and goal setting; (ii) job market research and job sources; (iii) networking and interviewing skills; (iv) planning and implementation strategy; (v) resume writing, job hunting methods and salary negotiation; and (vi) office support and job search resources. (m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (n) "Good Reason" shall mean, without Mr. Westbrook's express written consent, after written notice to the Board, and after a thirty (30) day opportunity for the Board to cure, the continuing occurrence of any of the following events: (i) Inconsistent Duties. A meaningful and detrimental alteration in Mr. Westbrook's position or in the nature or status of his responsibilities from those in effect immediately prior to the Change in Control; (ii) Reduced Salary. A reduction of five percent (5%) or more by the Company in either of the following: (i) Mr. Westbrook's annual base salary rate as in effect immediately prior to the Change in Control (except for a less than ten percent (10%), across-the-board annual base salary rate reduction similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); or (ii) the sum of Mr. Westbrook's annual base salary rate plus target bonus under the PPP Plan (except for a less than ten percent (10%), across-the-board reduction of annual base salary rate plus target bonus under the PPP Plan similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); (iii) Pension and Compensation Plans. The failure by the Company to continue in effect any pension or compensation plan or agreement in which Mr. Westbrook participates or is a party as of the date of the Change in Control or the elimination of Mr. Westbrook's participation therein, (except for across-the-board plan changes or terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company); For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall mean any written arrangement executed by an authorized officer of the Company which provides for payments upon retirement; and a "compensation plan or arrangement" shall mean any written arrangement executed by an authorized officer of the Company which provides for periodic, non-discretionary compensatory payments in the nature of bonuses. (iv) Relocation. A change in Mr. Westbrook's work location to a location more than fifty (50) miles from the office where Mr. Westbrook is located at the time of the Change in Control, unless such new work location is within fifty (50) miles from Mr. Westbrook's principal place of residence at the time of the Change in Control. The acceptance, if any, by Mr. Westbrook of employment by the Company at a work location which is outside the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a waiver of Mr. Westbrook's right to refuse subsequent transfer by the Company to a location which is more than fifty (50) miles from Mr. Westbrook's principal place of residence at the time of the Change in Control, and such subsequent unconsented transfer shall be "Good Reason" under this Agreement; or (v) Benefits and Perquisites. The taking of any action by the Company which would directly or indirectly materially reduce the benefits enjoyed by Mr. Westbrook under the Company's retirement, life insurance, medical, health and accident, disability, deferred compensation or savings plans in which Mr. Westbrook was participating immediately prior to the Change in Control; or the failure by the Company to provide Mr. Westbrook with the number of paid vacation days to which Mr. Westbrook is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect immediately prior to the Change in Control (except for across-the-board plan or vacation policy changes or plan terminations similarly affecting at least ninety-five percent (95%) of the Executive Employees of the Company). (vi) For purposes of this Paragraph 1.(n), the term "Executive Employee" shall mean those employees of the Company of Grade Level 10 or above. (o) "Group" shall have the meaning set forth in Section 14(d) of the Exchange Act. (p) "Group Health Plan" shall mean the group health plan covering Mr. Westbrook, as such plan may be amended from time to time. (q) "Group Life Insurance Plan" shall mean the group life insurance program covering Mr. Westbrook, as such plan may be amended from time to time. (r) "Incumbent Board" shall mean those individuals who constitute the Southern Board as of the Effective Date plus any individual who shall become a director subsequent to such date whose election or nomination for election by Southern's shareholders was approved by a vote of at least 75% of the directors then comprising the Incumbent Board. Notwithstanding the foregoing, no individual who shall become a director of the Southern Board subsequent to the Effective Date whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Regulations promulgated under the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Southern Board shall be a member of the Incumbent Board. (s) "Month of Service" shall mean any calendar month during which Mr. Westbrook has worked at least one (1) hour or was on approved leave of absence while in the employ of the Company or any affiliate or subsidiary of Southern. (t) "Pension Plan" shall mean The Southern Company Pension Plan, as such plan may be amended from time to time. (u) "Performance Dividend Plan" shall mean the Southern Company Performance Dividend Plan or any replacement thereto, as such plans may be amended from time to time. (v) "Performance Stock Plan" shall mean the Southern Company Performance Stock Plan or any replacement thereto, as such plans may be amended from time to time. (w) "Person" shall mean any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of Act. (x) "Performance Pay Plan" or "PPP Plan" shall mean the Southern Company Performance Pay Plan or any replacement thereto, as such plans may be amended from time to time. (y) "Productivity Improvement Plan" or "PIP Plan" shall mean the Southern Company Productivity Improvement Plan or replacement thereto, as such plans may be amended from time to time. (z) "Southern" shall mean The Southern Company, its successors and assigns. (aa) "Southern Board" shall mean the board of directors of Southern. (bb) "Southern Subsidiary" shall mean any corporation or other entity Controlled by Southern. (cc) "Termination for Cause" or "Cause" shall mean the termination of Mr. Westbrook's employment by the Company upon the occurrence of any of the following: (i) The willful and continued failure by Mr. Westbrook substantially to perform his duties with the Company (other than any such failure resulting from Mr. Westbrook's Total Disability or from Mr. Westbrook's retirement or any such actual or anticipated failure resulting from termination by Mr. Westbrook for Good Reason) after a written demand for substantial performance is delivered to him by the Southern Board, which demand specifically identifies the manner in which the Southern Board believes that he has not substantially performed his duties; or (ii) The willful engaging by Mr. Westbrook in conduct that is demonstrably and materially injurious to the Company, monetarily or otherwise, including, but not limited to any of the following: (A) any willful act involving fraud or dishonesty in the course of Mr. Westbrook's employment by the Company; (B) the willful carrying out of any activity or the making of any statement which would materially prejudice or impair the good name and standing of the Company, Southern or any Southern Subsidiary or would bring the Company, Southern or any Southern Subsidiary into contempt, ridicule or would reasonably shock or offend any community in which the Company, Southern or such Southern Subsidiary is located; (C) attendance at work in a state of intoxication or otherwise being found in possession at his workplace of any prohibited drug or substance, possession of which would amount to a criminal offense; (D) violation of the Company's policies on drug and alcohol usage, fitness for duty requirements or similar policies as may exist from time to time as adopted by the Company's safety officer; (E) assault or other act of violence against any person during the course of employment; or (F) indictment of any felony or any misdemeanor involving moral turpitude. No act or failure to act by Mr. Westbrook shall be deemed "willful" unless done, or omitted to be done, by Mr. Westbrook not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, Mr. Westbrook shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Southern Board at a meeting of the Southern Board called and held for such purpose (after reasonable notice to Mr. Westbrook and an opportunity for him, together with counsel, to be heard before the Southern Board), finding that, in the good faith opinion of the Southern Board, Mr. Westbrook was guilty of conduct set forth above in clause (i) or (ii) of this Paragraph 1.(cc) and specifying the particulars thereof in detail. (dd) "Termination Date" shall mean the date on which Mr. Westbrook's employment with the Company is terminated; provided, however, that solely for purposes of Paragraph 2.(c) hereof, the Termination Date shall be the effective date of his retirement pursuant to the terms of the Pension Plan. (ee) "Total Disability" shall mean Mr. Westbrook's total disability within the meaning of the Pension Plan. (ff) "Voting Securities" shall mean the outstanding voting securities of a corporation entitling the holder thereof to vote generally in the election of such corporation's directors. (gg) "Waiver and Release" shall mean the Waiver and Release attached hereto as Exhibit B. (hh) "Year of Service" shall mean Mr. Westbrook's Months of Service divided by twelve (12) rounded to the nearest whole year, rounding up if the remaining number of months is seven (7) or greater and rounding down if the remaining number of months is less than seven (7). If Mr. Westbrook has a break in his service with the Company, he will receive credit under this Agreement for service prior to the break in service only if the break in service is less than five years. 2. Severance Benefits. (a) Eligibility. Except as otherwise provided in this Paragraph 2.(a), if Mr. Westbrook's employment is involuntarily terminated by the Company at any time during the two year period following a Change in Control for reasons other than Cause, or if Mr. Westbrook voluntarily terminates his employment with the Company for Good Reason at any time during the two year period following a Change in Control, Mr. Westbrook shall be entitled to receive the benefits described in this Agreement upon the Company's receipt of an effective Waiver and Release. Notwithstanding anything to the contrary herein, Mr. Westbrook shall not be eligible to receive benefits under this Agreement if Mr. Westbrook: (i) voluntarily terminates his employment with the Company for other than Good Reason; (ii) has his employment terminated by the Company for Cause; (iii) accepts the transfer of his employment to Southern, any Southern Subsidiary or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary; (iv) refuses an offer of continued employment with the Company, any Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern, or any Southern Subsidiary under circumstances where such refusal would not amount to Good Reason for voluntary termination of employment; or (v) elects to receive the benefits of any other voluntary or involuntary severance or separation program maintained by the Company; provided however, that the receipt of benefits under the terms of any retention plan or agreement shall not be deemed to be the receipt of severance or separation benefits for purposes of this Agreement. (b) Severance Benefits. If Mr. Westbrook meets the eligibility requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash severance benefit in an amount equal to three times his Annual Compensation (the "Severance Amount"). If any portion of the Severance Amount constitutes an "excess parachute payment" (as such term is defined under Code Section 280G ("Excess Parachute Payment")), the Company shall pay to Mr. Westbrook an additional amount calculated by determining the amount of tax under Code Section 4999 that he otherwise would have paid on any Excess Parachute Payment with respect to the Change in Control and dividing such amount by a decimal determined by adding the tax rate under Code Section 4999 ("Excise Tax"), the hospital insurance tax under Code Section 3101(b) ("HI Tax") and federal and state income tax measured at the highest marginal rates ("Income Tax") and subtracting such result from the number one (1) (the "280G Gross-up"); provided, however, that no 280G Gross-up shall be paid unless the Severance Amount plus all other "parachute payments" to Mr. Westbrook under Code Section 280G exceeds three (3) times Mr. Westbrook's "base amount" (as such term is defined under Code Section 280G ("Base Amount")) by ten percent (10%) or more; provided further, that if no 280G Gross-up is paid, the Severance Amount shall be capped at three (3) times Mr. Westbrook's Base Amount, less all other "parachute payments" (as such term is defined under Code Section 280G) received by Mr. Westbrook, less one dollar (the "Capped Amount"), if the Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would have been the Severance Amount, reduced by HI Tax, Income Tax and Excise Tax. For purposes of this Paragraph 2.(b), whether any amount would constitute an Excess Parachute Payment and any other calculations of tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts, e.g., Base Amount, Capped Amount, etc., shall be determined by the tax department of the independent public accounting firm then responsible for preparing Southern's consolidated federal income tax return, and such calculations or determinations shall be binding upon the parties hereto. (c) Welfare Benefits. If Mr. Westbrook meets the eligibility requirements of Paragraph 2.(a) hereof and is not otherwise eligible to receive retiree medical and life insurance benefits provided to certain retirees pursuant to the terms of the Pension Plan, the Group Health Plan and the Group Life Insurance Plan, he shall be entitled to the benefits set forth in this Paragraph 2.(c). (i) Mr. Westbrook shall be eligible to participate in the Company's Group Health Plan, upon payment of both the Company's and his monthly premium under such plan, for a period of six (6) months for each of Mr. Westbrook's Years of Service, not to exceed five (5) years. If Mr. Westbrook elects to receive this extended medical coverage, he shall also be entitled to elect coverage under the Group Health Plan for his dependents who were participating in the Group Health Plan on Mr. Westbrook's Termination Date (and for such other dependents as may be entitled to coverage under the provisions of the Health Insurance Portability and Accountability Act of 1996) for the duration of Mr. Westbrook's extended medical coverage under this Paragraph 2.(c)(i) to the extent such dependents remain eligible for dependent coverage under the terms of the Group Health Plan. (A) The extended medical coverage afforded to Mr. Westbrook pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by Mr. Westbrook in connection with such coverage shall be determined in accordance with the terms of the Group Health Plan and shall be subject to any changes in the terms and conditions of the Group Health Plan as well as any future increases in premiums under the Group Health Plan. The premiums to be paid by Mr. Westbrook in connection with this extended coverage shall be due on the first day of each month; provided, however, that if he fails to pay his premium within thirty (30) days of its due date, such extended coverage shall be terminated. (B) Any Group Health Plan coverage provided under Paragraph 2.(c)(i) shall be a part of and not in addition to any COBRA Coverage which Mr. Westbrook or his dependents may elect. In the event that Mr. Westbrook or his dependents become eligible to be covered, by virtue of re-employment or otherwise, by any employer-sponsored group health plan or is eligible for coverage under any government-sponsored health plan during the above period, coverage under the Company's Group Health Plan available to Mr. Westbrook or his dependent by virtue of the provisions of Paragraph 2.(c)(i) shall terminate, except as may otherwise be required by law, and shall not be renewed. (ii) Mr. Westbrook shall be entitled to receive cash in an amount equal to the Company's and Mr. Westbrook's cost of premiums for three (3) years of coverage under the Group Health Plan and Group Life Insurance Plan in accordance with the terms of such plans as of the date of the Change in Control. (d) Incentive Plans. If Mr. Westbrook meets the eligibility requirements of Paragraph 2.(a) hereof he shall be entitled to the following benefits under the Company's incentive plans: (i) Stock Option Plan. (A) Any of Mr. Westbrook's Options and Stock Appreciation Rights under the Performance Stock Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(i) by reference) which are outstanding as of the Termination Date and which are not then exercisable and vested, shall become fully exercisable and vested to the full extent of the original grant; provided, that in the case of a Stock Appreciation Right, if Mr. Westbrook is subject to Section 16(b) of the Exchange Act, such Stock Appreciation Right shall not become fully vested and exercisable at such time if such actions would result in liability to Mr. Westbrook under Section 16(b) of the Exchange Act, provided further, that any such actions not taken as a result of the rules under Section 16(b) of the Exchange Act shall be effected as of the first date that such activity would no longer result in liability under Section 16(b) of the Exchange Act.. (B) The restrictions and deferral limitations applicable to any of Mr. Westbrook's Restricted Stock as of the Termination Date shall lapse, and such Restricted Stock shall become free of all restrictions and limitations and become fully vested and transferable to the full extent of the original grant. (C) The restrictions and deferral limitations and other conditions applicable to any other Awards held by Mr. Westbrook under the Stock Performance Plan as of the Termination Date shall lapse, and such other Awards shall become free of all restrictions, limitations or conditions and become fully vested and transferable to the full extent of the original grant. (ii) Performance Pay Plan. Provided Mr. Westbrook is not entitled to benefits under Article V of the PPP Plan, (the defined terms of which are incorporated in this Paragraph 2.(d)(ii) by reference), if the PPP Plan is in place through Mr. Westbrook's Termination Date and to the extent Mr. Westbrook is entitled to participate therein, Mr. Westbrook shall be entitled to receive cash in an amount equal to a prorated payout of his Incentive Pay Awards under the PPP Plan for the Performance Period in which the Termination Date shall have occurred, at target performance under the PPP Plan and prorated by the number of months which have passed since the beginning of the Performance Period until the Termination Date. (iii) PIP Plan. Provided Mr. Westbrook is not entitled to benefits under Article IV of the PIP Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iii) by reference), if the PIP Plan is in place through Mr. Westbrook's Termination Date and to the extent Mr. Westbrook is entitled to participate therein, Mr. Westbrook shall be entitled to receive cash in an amount equal to his Award Opportunity for the Computation Periods in which the Termination Date shall have occurred at a target Value of Performance Unit of $1.00, prorated for each Computation Period by the number of months which have passed since the beginning of the Computation Periods until the Termination Date. (iv) Performance Dividend Plan. Provided Mr. Westbrook is not entitled to benefits under the Performance Dividend Plan (the defined terms of which are incorporated in this Paragraph 2.(d)(iv) by reference), if the Performance Dividend Plan is in place through Mr. Westbrook's Termination Date and to the extent Mr. Westbrook is entitled to participate therein, Mr. Westbrook shall be entitled to receive cash for each Award held by Mr. Westbrook on his Termination Date, based on actual performance under Section 4.1 of the Performance Dividend Plan determined as of the most recently completed calendar quarter of the Performance Period in which the Termination Date shall have occurred, and the Annual Dividend declared prior to the Termination Date. (v) Other Short Term Incentive Plans. The provisions of this Paragraph 2.(d)(v) shall apply if and to the extent that Mr. Westbrook is a participant in any other "short term compensation plan" not otherwise previously referred to in this Paragraph 2.(d). Provided Mr. Westbrook is not otherwise entitled to a plan payout under any change of control provisions of such plans, if the "short term compensation plan" is in place as of the Termination Date and to the extent Mr. Westbrook is entitled to participate therein, Mr. Westbrook shall receive cash in an amount equal to his award under the Company's "short term incentive plan" for the annual performance period in which the Termination Date shall have occurred, at Mr. Westbrook's target performance level and prorated by the number of months which have passed since the beginning of the annual performance period until his Termination Date. For purposes of this Paragraph 2.(d)(v) the term "short term incentive compensation plan" shall mean any incentive compensation plan or arrangement adopted in writing by the Company which provides for annual, recurring compensatory bonuses based upon articulated performance criteria. (e) Payment of Benefits. Any amounts due under this Agreement shall be paid in one (1) lump sum payment as soon as administratively practicable following the later of: (i) Mr. Westbrook's Termination Date, or (ii) upon Mr. Westbrook's tender of an effective Waiver and Release to the Company in the form of Exhibit B attached hereto and the expiration of any applicable revocation period for such waiver. In the event of a dispute with respect to liability or amount of any benefit due hereunder, an effective Waiver and Release shall be tendered at the time of final resolution of any such dispute when payment is tendered by the Company. (f) Benefits in the Event of Death. In the event of Mr. Westbrook's death prior to the payment of all amounts due under this Agreement, Mr. Westbrook's estate shall be entitled to receive as due any amounts not yet paid under this Agreement upon the tender by the executor or administrator of the estate of an effective Waiver and Release. (g) Legal Fees. In the event of a dispute between Mr. Westbrook and the Company with regard to any amounts due hereunder, if any material issue in such dispute is finally resolved in Mr. Westbrook's favor, the Company shall reimburse Mr. Westbrook's legal fees incurred with respect to all issues in such dispute in an amount not to exceed fifty thousand dollars ($50,000). (h) Employee Outplacement Services. Mr. Westbrook shall be eligible to participate in the Employee Outplacement Program, which program shall not be less than six (6) months duration measured from Mr. Westbrook's Termination Date. (i) Non-qualified Retirement and Deferred Compensation Plans. The Parties agree that subsequent to a Change in Control, any claims by Mr. Westbrook for benefits under any of the Company's non-qualified retirement or deferred compensation plans shall be resolved through binding arbitration in accordance with the provisions and procedures set forth in Paragraph 5 hereof and if any material issue in such dispute is finally resolved in Mr. Westbrook's favor, the Company shall reimburse Mr. Westbrook's legal fees in the manner provided in Paragraph 2.(g) hereof. 3. Transfer of Employment. In the event that Mr. Westbrook's employment by the Company is terminated during the two year period following a Change in Control and Mr. Westbrook accepts employment by Southern, a Southern Subsidiary, or any employer that succeeds to all or substantially all of the assets of the Company, Southern or any Southern Subsidiary, the Company shall assign this Agreement to Southern, such Southern Subsidiary, or successor employer, Southern shall accept such assignment or cause such Southern Subsidiary or successor employer to accept such assignment, and such assignee shall become the "Company" for all purposes hereunder. 4. No Mitigation. If Mr. Westbrook is otherwise eligible to receive benefits under Paragraph 2 of this Agreement, he shall have no duty or obligation to seek other employment following his Termination Date and, except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Mr. Westbrook hereunder shall not be reduced or suspended if Mr. Westbrook accepts such subsequent employment. 5. Arbitration. (a) Any dispute, controversy or claim arising out of or relating to the Company's obligations to pay severance benefits under this Agreement, or the breach thereof, shall be settled and resolved solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") except as otherwise provided herein. The arbitration shall be the sole and exclusive forum for resolution of any such claim for severance benefits and the arbitrators' award shall be final and binding. The provisions of this Paragraph 5 are not intended to apply to any other disputes, claims or controversies arising out of or relating to Mr. Westbrook's employment by the Company or the termination thereof. (b) Arbitration shall be initiated by serving a written notice of demand for arbitration to Mr. Westbrook, in the case of the Company, or to the Southern Board, in the case of Mr. Westbrook. (c) The arbitration shall be held in Atlanta, Georgia. The arbitrators shall apply the law of the State of Georgia, to the extent not preempted by federal law, excluding any law which would require the application of the law of another state. (d) The parties shall appoint arbitrators within fifteen (15) business days following service of the demand for arbitration. The number of arbitrators shall be three. One arbitrator shall be appointed by Mr. Westbrook, one arbitrator shall be appointed by the Company, and the two arbitrators shall appoint a third. If the arbitrators cannot agree on a third arbitrator within thirty (30) business days after the service of demand for arbitration, the third arbitrator shall be selected by the AAA. (e) The arbitration filing fee shall be paid by Mr. Westbrook. All other costs of arbitration shall be borne equally by Mr. Westbrook and the Company, provided, however, that the Company shall reimburse such fees and costs in the event any material issue in such dispute is finally resolved in Mr. Westbrook's favor and Mr. Westbrook is reimbursed legal fees under Paragraph 2.(g) hereof. (f) The parties agree that they will faithfully observe the rules that govern any arbitration between them, they will abide by and perform any award rendered by the arbitrators in any such arbitration, including any award of injunctive relief, and a judgment of a court having jurisdiction may be entered upon an award. (g) The parties agree that nothing in this Paragraph 5 is intended to preclude upon application of either party any court having jurisdiction from issuing and enforcing in any lawful manner such temporary restraining orders, preliminary injunctions, and other interim measures of relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate pending the conclusion of arbitration proceedings pursuant to this Agreement; regardless of whether an arbitration proceeding under this Paragraph 5 has begun. The parties further agree that nothing herein shall prevent any court from entering and enforcing any lawful manner such judgments for permanent equitable relief as may be necessary to prevent harm to a party's interests or as otherwise may be appropriate following the issuance of arbitral awards pursuant to this Paragraph 5. 6. Miscellaneous. (a) Funding of Benefits. Unless the Board in its discretion shall determine otherwise, the benefits payable to Mr. Westbrook under this Agreement shall not be funded in any manner and shall be paid by the Company out of its general assets, which assets are subject to the claims of the Company's creditors. (b) Withholding. There shall be deducted from the payment of any benefit due under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Mr. Westbrook. (c) Assignment. Mr. Westbrook shall have no rights to sell, assign, transfer, encumber, or otherwise convey the right to receive the payment of any benefit due hereunder, which payment and the rights thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. (d) Amendment and Termination. The Agreement may be amended or terminated only by a writing executed by the parties. (e) Construction. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia, to the extent not preempted by federal law, disregarding any provision of law which would require the application of the law of another state. (f) Pooling Accounting. Notwithstanding anything to the contrary herein, if, but for any provision of this Agreement, a Change in Control transaction would otherwise be accounted for as a pooling-of-interests under APB No.16 ("Pooling Accounting") (after giving effect to any and all other facts and circumstances affecting whether such Change in Control transaction would use Pooling Accounting), such provision or provisions of this Agreement which would otherwise cause the Change in Control transaction to be ineligible for Pooling Accounting shall be void and ineffective in such a manner and to the extent that by eliminating such provision or provisions of this Agreement, Pooling Accounting would be required for such Change in Control transaction. IN WITNESS WHEREOF, the parties hereto have executed this Agreement this ____ day of __________________, 199__. THE SOUTHERN COMPANY By:__________________________________ SOUTHERN COMPANY SERVICES, INC. By: ________________________________ MR. WESTBROOK ----------------------------- W. Lawrence Westbrook Exhibit A CHANGE IN CONTROL AGREEMENT Target Annual Bonus for Mr. W. Lawrence Westbrook 45% Exhibit B CHANGE IN CONTROL AGREEMENT Waiver and Release The attached Waiver and Release is to be given to Mr. W. Lawrence Westbrook upon the occurrence of an event that triggers eligibility for severance benefits under the Change in Control Agreement, as described in Paragraph 2(a) of such agreement. CHANGE IN CONTROL AGREEMENT Waiver and Release I, W. Lawrence Westbrook, understand that I am entitled to receive the severance benefits described in Section 2 of the Change in Control Agreement (the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand that the benefits I will receive under the Agreement are in excess of those I would have received from The Southern Company and Southern Company Services, Inc. (collectively, the "Company") if I had not elected to sign this Waiver. I recognize that I may have a claim against the Company under the Civil Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended, the Americans with Disabilities Act or other federal, state and local laws. In exchange for the benefits I elect to receive, I hereby irrevocably waive and release all claims, of any kind whatsoever, whether known or unknown in connection with any claim which I ever had, may have, or now have against The Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, Southern Communication Services, Inc., Southern Company Services, Inc., Southern Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating Company, Inc. and other direct or indirect subsidiaries of The Southern Company and their past, present and future officers, directors, employees, agents and attorneys. Nothing in this Waiver shall be construed to release claims or causes of action under the Age Discrimination in Employment Act or the Energy Reorganization Act of 1974, as amended, which arise out of events occurring after the execution date of this Waiver. In further exchange for the benefits I elect to receive, I understand and agree that I will respect the proprietary and confidential nature of any information I have obtained in the course of my service with the Company or any subsidiary or affiliate of The Southern Company. However, nothing in this Waiver shall prohibit me from engaging in protected activities under applicable law or from communicating, either voluntary or otherwise, with any governmental agency concerning any potential violation of the law. In signing this Waiver, I am not releasing claims to benefits that I am already entitled to under any workers' compensation laws or under any retirement plan or welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, which is sponsored by or adopted by the Company and/or any of its direct or indirect subsidiaries; however, I understand and acknowledge that nothing herein is intended to or shall be construed to require the Company to institute or continue in effect any particular plan or benefit sponsored by the Company and the Company hereby reserves the right to amend or terminate any of its benefit programs at any time in accordance with the procedures set forth in such plans. In signing this Waiver, I realize that I am waiving and releasing, among other things, any claims to benefits under any and all bonus, severance, workforce reduction, early retirement, outplacement, or any other similar type plan sponsored by the Company. I have been encouraged and advised in writing to seek advice from anyone of my choosing regarding this Waiver, including my attorney, and my accountant or tax advisor. Prior to signing this Waiver, I have been given the opportunity and sufficient time to seek such advice, and I fully understand the meaning and contents of this Waiver. I understand that I may take up to twenty-one (21) calendar days to consider whether or not I desire to enter this Waiver. I was not coerced, threatened or otherwise forced to sign this Waiver. I have made my choice to sign this Waiver voluntarily and of my own free will. I understand that I may revoke this Waiver at any time during the seven (7) calendar day period after I sign and deliver this Waiver to the Company. If I revoke this Waiver, I must do so in writing delivered to the Company. I understand that this Waiver is not effective until the expiration of this seven (7) calendar day revocation period. I understand that upon the expiration of such seven (7) calendar day revocation period this entire Waiver will be binding upon me and will be irrevocable. I understand that by signing this Waiver I am giving up rights I may have. IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____ day of ____________________, in the year _____. W. Lawrence Westbrook Sworn to and subscribed to me this ____ day of ____________, _____. Notary Public My Commission Expires: (Notary Seal) Acknowledged and Accepted by the Company, as defined in the Waiver. By: Date: EX-10.B.40 35 EXHIBIT 10(b)40 SUPPLEMENTAL PENSION AGREEMENT THIS AGREEMENT, made as of the ____ day of _______, 1994, by and among ALABAMA POWER COMPANY, a corporation organized and existing under the laws of the State of Alabama ("Alabama"), GULF POWER COMPANY, a corporation organized and existing under the laws of the State of Maine ("Gulf"), and TRAVIS J. BOWDEN (the "Employee"), WITNESSETH THAT WHEREAS, the Employee's formal employment by Alabama began on November 3, 1975; however, his valuable services to Alabama actually commenced at a considerably earlier date with his employment on July 1, 1960 as a certified public accountant with Arthur Andersen & Company. The knowledge and experience acquired by the Employee while in that capacity has proven of great value to Alabama in the years since his formal employment; WHEREAS, the Employee as of February 1, 1994, became employed as President of Gulf Power Company and the knowledge and experience he obtained as a certified public accountant at Arthur Andersen & Company will likewise be of great value to Gulf in the future; WHEREAS, under prevailing interpretation of the provisions of the Internal Revenue Code applicable to "qualified" pension plans, the Pension Plan of Alabama and of Gulf may not take into account the years of the Employee's service prior to his formal employment by Alabama, with the result that, to the extent such years may not be counted, the Employee's pension will be reduced below what Alabama and Gulf believe it should be. "The Plan" as used herein shall refer to the Pension Plan for Employees of Gulf Power Company, as amended from time to time, or the Pension Plan for Employees of Alabama Power Company, if he shall resume employment with Alabama and retire as an employee of Alabama. Defined terms in the Plan are used herein with the same meaning. WHEREAS, Alabama and Gulf (collectively the "Companies") desire not only to recognize the valuable services rendered to Alabama and to be rendered in the future by the Employee to Gulf but also desire to secure the continued services of the Employee with Gulf. The Employee is willing to enter into this Agreement if the Companies agree to pay certain amounts, all in accordance with the provisions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties agree as follows: I1. If the Employee shall continue to serve Gulf faithfully, diligently and competently to the best of his ability from the date of this Agreement until either (a) such date his service as an employee shall terminate by action of the Board of Directors of Gulf or should employee be last employed by Alabama then such date his service as an employee shall terminate by action of the Board of Directors of Alabama; or (b) his retirement in accordance with the provisions of the Plan; or (c) his death while in the service of the Gulf or Alabama 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 commencing on his retirement date under the Plan, and thereafter on the first day of each succeeding month during the lifetime of 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's period of Accredited Service under the Plan included the ten year period between November 3, 1965 and November 3, 1975, less any deductions hereinafter provided; provided, however, that 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 determination of 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's service from November 3, 1965 to November 3, 1975, had been rendered to the Company or to a company affiliated or associated with the Company. 4. The cost of the benefit payable to Employee pursuant to Paragraph 2 hereof shall be apportioned between Alabama and Gulf based upon the total number of years of Accredited Service earned by Employee at Alabama and at Gulf. For example, if Employee earns eighteen (18) years of Accredited Service at Alabama and nine (9) years of Accredited Service at Gulf, Alabama would be liable for payment of two-thirds of the benefit and Gulf would be liable for one-third of the benefit. 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 the Companies as they have 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 the Companies 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 the Companies 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 Employee and the Companies 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 the Companies, 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 the Companies of their obligations arising theretofore under the Agreement. IN WITNESS WHEREOF, the Companies have caused this Agreement to be executed by their duly authorized officers and the Employee has executed this Agreement in triplicate on or as of the day and year first above written. ATTEST: ALABAMA POWER COMPANY By: Secretary Its: ATTEST: GULF POWER COMPANY By: Secretary Its: Witness Employee EX-10.C.77 36 EXHIBIT 10(c)77 SUPPLEMENTAL PENSION AGREEMENT THIS AGREEMENT, made as of the ___ day of ___________, 1994, by and between GEORGIA POWER COMPANY, a corporation organized and existing under the laws of the State of Georgia (the "Company") and WARREN Y. JOBE (the "Employee"), WITNESSETH THAT WHEREAS, the Employee's formal employment by the Company began on November 1, 1975 and his employment by Southern Company Services, Inc. ("SCSI") began on May 3, 1971; however, his valuable services to the Company actually commenced at a considerably earlier date with his employment on September 1, 1963 as a certified public accountant with Arthur Andersen & Company. The knowledge and experience acquired by the Employee while in this capacity has proven of great value to the Company in the years since his formal employment and will, in the opinion of the Company, continue to do so in the future. WHEREAS, under prevailing interpretation of the provisions of the Internal Revenue Code applicable to "qualified" pension plans, the Company's Pension Plan may not take into account the years of the Employee's service prior to his formal employment by SCSI on May 3, 1971, with the result that, to the extent such years may not be counted, the Employee's pension will be reduced below what the Company believes it should be. "The Plan" as used herein shall refer to the Pension Plan for Employees of Georgia Power Company, as amended from time to time. Defined terms in the Plan are used herein with the same meaning. WHEREAS, the Company desires not only to recognize the valuable services rendered and currently being rendered by the Employee, but also desires to secure the continued services of the Employee. The Employee is willing to enter into this Agreement if the Company agrees to pay certain amounts, all in accordance with the provisions hereinafter set forth. 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 the Company 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 by action of the Board of Directors; or b. his retirement in accordance with the provisions of the 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 Company shall pay to the Employee commencing on his retirement date under the Plan, if he shall retire in accordance with the provisions of the Plan, and thereafter on the first day of each succeeding month during the lifetime of 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's period of Accredited Service under the Plan included the period from September 1, 1963 to May 3, 1971, less any deductions hereinafter provided; provided, however, that 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's service from September 1, 1963 to May 3, 1971 had been rendered to the Company. 4. 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 the Company as it 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 the Company now existing, or which may hereafter exist, providing benefits for its employees. 5. 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. 6. Nothing contained in this Agreement shall be construed to affect in any manner the existing rights of the Company or the Employee to suspend, terminate, alter or modify, whether or not for cause, the employment relationship contemplated by Paragraph 1 hereof. 7. 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. 8. The Employee and the Company 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 Georgia, and that the Agreement and its provisions shall be interpreted and construed in accordance with the laws of that State. 9. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any successor to the business of the Company, 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 the Company of its obligations arising theretofore under the Agreement. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer and the Employee has executed this Agreement in duplicate on or as of the day and year first above written. ATTEST: GEORGIA POWER COMPANY By: Secretary Its: Witness Employee Warren Y. Jobe EX-10.D.35 37 EXHIBIT 10(d)35 SUPPLEMENTAL PENSION AGREEMENT THIS AGREEMENT made and entered into this _____ day of ______________, 1997, by and between G. Edison Holland, Jr. (hereinafter referred to as the "Employee"), Savannah Electric and Power Company ("Savannah") and Gulf Power Company ("Gulf"), to be effective __________________, 1997. WHEREAS, the Employee is currently employed by Savannah as its President; WHEREAS, Employee was previously employed by Gulf as its Vice President and General Counsel; WHEREAS, pursuant to such employment, Gulf and Employee entered into an agreement dated September 1, 1992 for the provision of certain supplemental retirement benefits and for other retirement benefits (the "Gulf Agreement"); WHEREAS, the parties wish to amend and restate the Gulf Agreement and to provide benefits which are not available under the qualified and non-qualified retirement plans of Savannah; and WHEREAS, Employee and Savannah acknowledge and agree that Employee is a member of the management of Savannah and is a highly compensated employee; NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, Employee, Savannah and Gulf hereby agree as follows: 1. Upon Employee's retirement from Savannah, Savannah agrees to pay to Employee an amount equal to the difference between his retirement Allowance payable in accordance with the terms and provisions of the Employees' Retirement Plan of Savannah Electric and Power Company as applicable to Employee on his date of hire and as may be amended from time to time (hereinafter referred to as the "Pension Plan"), and the amount of retirement Allowance Employee would have been entitled to receive under the Pension Plan as applicable to him on his date of hire if he had first been employed by Savannah on January 1, 1980. Said amount shall be recalculated from time to time to reflect future increases, if any, in the retirement Allowance of retirees following Employee's retirement. In no event shall the amount provided in the preceding two sentences be less than the amount Employee would have received if he had continued to participate in The Southern Company Pension Plan until retirement. 2. Upon Employee's retirement from Savannah, Savannah agrees to pay Employee an amount equal to the difference between the retirement benefits Employee would have been entitled to receive in accordance with the terms and provisions of the supplemental pension plan of any of Savannah's affiliates (hereinafter referred to as the "Supplemental Pension Plan") and The Southern Company Supplemental Executive Retirement Plan (hereinafter referred to as the "SERP") as determined based on the Pension Plan as applicable to the Employee on his date of hire, and the amount of retirement benefits the Employee would have been entitled to receive under the Supplemental Pension Plan and SERP if he had first been employed by Savannah on January 1, 1980. Said amount shall be recalculated from time to time to reflect future increases, if any, in the retirement benefits of retirees following the Employee's retirement. In no event shall the amount provided in the preceding two sentences be less than the amount Employee would have received if he had continued to participate in the Supplemental Pension Plan and SERP until retirement. 3. The benefits provided in accordance with Paragraphs 1 and 2 shall be paid in monthly installments on the first day of each month in the same manner as the Employee's election to receive his retirement Allowance under the Pension Plan in effect on his commencement of benefits under this Agreement. In the event the Employee is married, predeceases his spouse, and his spouse is living on the date payments would commence under this Paragraph 3, the monthly payments shall be paid in the same manner as provided by the Provisional Payee option available to Employee under the Pension Plan. In the event Employee is not married or is not survived by his spouse on the date payments commence under this Paragraph 3, the above benefit shall be paid only to Employee. Employee or his surviving spouse shall not, under any circumstances, have any option or right to require payments hereunder otherwise than in accordance with the terms hereof. 4. Upon Employee's retirement from Savannah under the terms of the Pension Plan, Gulf agrees to pay the Employee a lump sum amount equal to the value of the number of shares of Common Stock in The Southern Company to which Employee's account would have been allocated under The Southern Company Employee Stock Ownership Plan had Employee been a participant in the Southern Company Employee Stock Ownership Plan during the 1992 plan year. 5. Upon Employee's retirement from Savannah under the terms of the Pension Plan, Gulf agrees to pay Employee a lump sum amount equal to six percent (6%) of Employee's annual compensation multiplied by the annual percentage of Gulf's Matching contribution allocated to employees' accounts under The Southern Company Employee Savings Plan ("Savings Plan") that would have been allocated to Employee's account under the Savings Plan if Employee had participated in the Savings Plan from the period beginning April 2, 1992 and ending on April 30, 1993. For purposes of this Section 5, Employee shall be deemed to have invested the aforesaid funds in Gulf's Stock Fund under the Savings Plan since April 25, 1992; provided however, that any payments made to Employee pursuant to this Section 5 shall be made in cash. 6. Employee shall be entitled to that amount of vacation time, in addition to regular holidays, to which he would be entitled if he had first been employed by Savannah on January 1, 1980. 7. Employee shall be entitled to any service awards available to career Employees of Savannah recognizing their long term service as if Employee had first been employed by Savannah on January 1, 1980. 8. Neither the entering into or termination of this Agreement for any reason shall affect Employee's right to such salary, fees or other compensation for services as an employee, officer or director of Savannah, as may be agreed upon from time to time, nor his right to participate in all of the employee benefit plans maintained by Savannah on the same basis as any other regular full-time employee of Savannah. 9. Savannah and Gulf agreed to share the cost of any payments to Employee under Paragraphs 1, 2 and 3 of this Agreement in accordance with the ratio which the number of years of Employee's employment at each company bears to the total years of Employee's employment at both companies as of the date of Employee's retirement from Savannah. For purposes of this Paragraph, the term "years of employment" shall include partial years rounded up or down to the nearest whole year. Gulf agrees to bear the cost of all payments to Employee under Paragraphs 4 and 5 of this Agreement. 10. Nothing contained in this Agreement shall be construed to affect in any manner the existing rights of Savannah to suspend, terminate, alter or modify, whether or not for cause, Employee's employment relationship. 11. Neither Employee nor the Provisional Payee or other beneficiary under this Agreement shall have any right to sell, assign, transfer, encumber or otherwise convey the right to receive payment of any amounts payable hereunder, which payment and the right thereto are expressly declared to be nonassignable and nontransferable. Any attempt to do so shall be null and void and of no effect. 12. Neither Savannah nor Gulf shall reserve nor otherwise set aside funds for the payment of their obligations hereunder, which obligations shall be paid from their respective general assets. Notwithstanding that Employee 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 respective companies' creditors. 13. This Agreement shall be construed in accordance with and governed by the laws of the State of Georgia to the extent not preempted by ERISA. 14. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any successor to the business of Savannah or Gulf, and in any event, the Agreement shall, if not sooner terminated, terminate for all purposes upon the death of the Employee or, if his spouse shall survive the Employee and shall be entitled to receive any payments hereunder, upon the death of the Employee's surviving spouse, and the satisfaction by Savannah or Gulf of their obligations hereunder. IN WITNESS WHEREOF, this Agreement has been executed by the Employee, Savannah and Gulf, through their duly authorized officers, as of the day and year first written above, to be effective _____________________, 1997. EMPLOYEE: ------------------------- G. Edison Holland Sworn to and subscribed before me this ____ day of __________, 1997. - - - - - - - ------------------------------------ Notary Public, State of Georgia My Commission Expires: - - - - - - - ------------------------------------ (NOTARIAL SEAL) _________ SAVANNAH ELECTRIC AND POWER COMPANY By:_____________________ Its:____________________ ATTEST:__________________ Its:_____________________ Sworn to and subscribed before me this ____ day of __________, 1997. - - - - - - - ------------------------------------ Notary Public, State of Georgia My Commission Expires: - - - - - - - ------------------------------------ (NOTARIAL SEAL) _________ GULF POWER COMPANY By:_____________________ Its:____________________ ATTEST:__________________ Its:_____________________ Sworn to and subscribed before me this ____ day of __________, 1997. - - - - - - - ------------------------------------ Notary Public, State of Georgia My Commission Expires: - - - - - - - ------------------------------------ (NOTARIAL SEAL) EX-10.F.17 38 EXHIBIT 10(f)17 THIRD AMENDMENT TO THE DEFERRED COMPENSATION PLAN FOR KEY EMPLOYEES OF SAVANNAH ELECTRIC AND POWER COMPANY WHEREAS, the Board of Directors of Savannah Electric and Power Company (the "Company") heretofore adopted the Deferred Compensation Plan for Key Employees of Savannah Electric and Power Company (the "Plan") in order to provide key management employees with long-term compensation incentives; and WHEREAS, the Plan has been amended from time to time to change the terms of these long-term incentives; and WHEREAS, the Company desires to amend that provision in the Plan providing severance benefits to shorten the years of service and age requirement set forth therein; and WHEREAS, the Company has reserved the right to amend the Plan at any time pursuant to Article XI of the Plan. NOW THEREFORE, effective May 1, 1997, the Company hereby amends the Plan as follows: 1. Section 1 of Article VII of the Plan shall be amended by deleting said Section in its entirety and substituting therefor the following new language: 1. Severance Benefits. (a) In the event a Participant's employment with the Company terminates for any reason other than death, Total Disability, Early Retirement or Normal Retirement, and at the time of such termination such Participant has neither accrued ten (10) Years of Service nor attained age forty-eight (48) the Participant's participation in the Plan shall cease as of the date of such termination. In such event, the Company shall pay the former Participant the amount of his actual gross deferrals plus interest thereon at [seven percent (7%) per annum, compounded annually. Such amount shall be payable to the former Participant at the option of the Committee in either a lump sum within ninety (90) days following such termination or in up to sixty (60) equal consecutive monthly installments with interest at seven percent (7%) per annum commencing within ninety (90) days following such termination.]2 (b) In the event a Participant's employment with the Company terminates for any reason other than death, Total Disability, Early Retirement or Normal Retirement, and at the time of such termination such Participant has either accrued ten (10) or more Years of Service or attained age forty-eight (48) such Participant shall receive a benefit identical to the Retirement Benefits of Article IV (either the Early Retirement Benefit or Normal Retirement Benefit, as the case may be) to which such Participant would have become entitled if he retired upon or after attaining age sixty (60). Provided, however, in the event a Participant dies prior to commencement of payment of such Severance Benefit, the Participant's Designated Beneficiary shall receive, in lieu of such Severance Benefit, the Survivor Benefit specified in Article V hereof. 2. All parts of the Plan not inconsistent herewith are hereby ratified and affirmed. IN WITNESS WHEREOF, the Board of Directors of Savannah Electric and Power Company hereby approves this Third Amendment to the Deferred Compensation Plan for Key Employees of Savannah Electric and Power Company, as executed by the undersigned authorized officer, and further authorizes such other actions necessary to implement this Third Amendment this day of , 1997, to be effective as provided herein. SAVANNAH ELECTRIC AND POWER COMPANY By:________________________________ Arthur M. Gignilliat, Jr. President and Chief Executive Officer ATTEST: - - - - - - - -------------------- Lavonne K. Calandra Corporate Secretary (CORPORATE SEAL) EX-24.A 39 EXHIBIT 24(a) February 15, 1999 A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston Dear Sirs: The Southern Company proposes to file or join in the filing of reports under the Securities Exchange Act of 1934, as amended, with the Securities and Exchange Commission with respect to the following: (1) the filing of this Company's Annual Report on Form 10-K for the year ended December 31, 1998 and (2) the filing of Quarterly Reports on Form 10-Q and Current Reports on Form 8-K during 1999. The Southern Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, said Quarterly Reports on Form 10-Q, any Current Reports on Form 8-K and any necessary or appropriate amendment or amendments to any such reports, to be accompanied in each case by any necessary or appropriate exhibits or schedules thereto. Yours very truly, THE SOUTHERN COMPANY By /s/A. W. Dahlberg A. W. Dahlberg Chairman, President and Chief Executive Officer - 2 - /s/John C. Adams /s/Zack T. Pate John C. Adams Zack T. Pate /s/A. D. Correll /s/William J. Rushton, III A. D. Correll William J. Rushton, III /s/A. W. Dahlberg /s/Gloria M. Shatto A. W. Dahlberg Gloria M. Shatto /s/Paul J. DeNicola /s/Gerald J. St. Pe' Paul J. DeNicola Gerald J. St. Pe' /s/Jack Edwards /s/Herbert Stockham Jack Edwards Herbert Stockham /s/H. Allen Franklin /s/Stephen A. Wakefield H. Allen Franklin Stephen A. Wakefield /s/Bruce S. Gordon /s/W. L. Westbrook Bruce S. Gordon W. L. Westbrook /s/L. G. Hardman III /s/Tommy Chisholm L. G. Hardman III Tommy Chisholm /s/Elmer B. Harris ________________________________ Elmer B. Harris W. Dean Hudson Extract from minutes of meeting of the board of directors of The Southern Company. - - - - - - - - - - RESOLVED: That for the purpose of signing the Company's Annual Report on Form 10-K for the year ended December 31, 1998, 1999 Form 10-Q's and Form 8-K's and any necessary or appropriate amendment or amendments to any such reports, this Company, the members of its board of directors, and its officers, are authorized to give their several powers of attorney to A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston. - - - - - - - - - - The undersigned officer of The Southern Company does hereby certify that the foregoing is a true and correct copy of a resolution duly and regularly adopted at a meeting of the board of directors of The Southern Company, duly held on February 15, 1999, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 THE SOUTHERN COMPANY By /s/Tommy Chisholm Tommy Chisholm Secretary EX-24.B 40 EXHIBIT 24(b) January 22, 1999 W. L. Westbrook Wayne Boston 270 Peachtree Street, N.W. 241 Ralph McGill Blvd. NE Atlanta, Georgia 30303 Atlanta, Georgia 30308-3374 Dear Sirs: Alabama Power Company proposes to file with the Securities and Exchange Commission, under the Securities Exchange Act of 1934, (1) its Annual Report on Form 10-K for the year ended December 31, 1998, and (2) its quarterly reports on Form 10-Q during 1999. Alabama Power Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint W. L. Westbrook and Wayne Boston our true and lawful Attorneys for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, quarterly reports on Form 10-Q, and any appropriate amendment or amendments thereto and any necessary exhibits. Yours very truly, ALABAMA POWER COMPANY By /s/Elmer B. Harris Elmer B. Harris President and Chief Executive Officer - 2 - /s/Whit Armstrong ______________________________ Whit Armstrong William V. Muse /s/David J. Cooper /s/John T. Porter David J. Cooper John T. Porter /s/A. W. Dahlberg /s/Robert D. Powers A. W. Dahlberg Robert D. Powers /s/Peter V. Gregerson, Sr. /s/Andreas Renschler Peter V. Gregerson, Sr. Andreas Renschler /s/Elmer B. Harris /s/C. Dowd Ritter, III Elmer B. Harris C. Dowd Ritter, III /s/Carl E. Jones, Jr. ______________________________ Carl E. Jones, Jr. William J. Rushton, III /s/Patricia M. King /s/James H. Sanford Patricia M. King James H. Sanford /s/James K. Lowder /s/John Cox Webb, IV James K. Lowder John Cox Webb, IV /s/Wallace D. Malone, Jr. /s/William B. Hutchins, III Wallace D. Malone, Jr. William B. Hutchins, III /s/Thomas C. Meredith /s/Art P. Beattie Thomas C. Meredith Art P. Beattie Extract from minutes of meeting of the board of directors of Alabama Power Company. - - - - - - - - - - RESOLVED: That for the purpose of signing and filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, Alabama Power Company's annual report on Form 10-K for the year ended December 31, 1998, and of remedying any deficiencies with respect thereto by appropriate amendment or amendments, and also filing quarterly reports on Form 10-Q, Alabama Power Company, the members of its Board of Directors, and its officers are authorized to give their several powers of attorney to W. L. Westbrook and Wayne Boston, in substantially the form of power of attorney presented to this meeting. - - - - - - - - - - The undersigned officer of Alabama Power Company does hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Alabama Power Company, duly held on January 22, 1998, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 ALABAMA POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary EX-24.C 41 EXHIBIT 24(c) February 17, 1999 W. L. Westbrook and Wayne Boston Dear Sirs: Georgia Power Company proposes to file or join in the filing of statements under the Securities Exchange Act of 1934 with the Securities and Exchange Commission with respect to the following: (1) the filing of its Annual Report on Form 10-K for the year ended December 31, 1998, and (2) the filing of its quarterly reports on Form 10-Q during 1999. Georgia Power Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, quarterly reports on Form 10-Q and any appropriate amendment or amendments thereto and any necessary exhibits. Yours very truly, GEORGIA POWER COMPANY By_/s/H. Allen Franklin H. Allen Franklin President and Chief Executive Officer - 2 - ______________________________ /s/G. Joseph Prendergast Daniel P. Amos G. Joseph Prendergast /s/Juanita P. Baranco /s/Herman J. Russell Juanita P. Baranco Herman J. Russell /s/A. W. Dahlberg ______________________________ A. W. Dahlberg Gloria M. Shatto /s/William A. Fickling, Jr. /s/William Jerry Vereen William A. Fickling, Jr. William Jerry Vereen /s/H. Allen Franklin /s/Carl Ware H. Allen Franklin Carl Ware /s/L. G. Hardman III /s/Judy M. Anderson L. G. Hardman III Judy M. Anderson /s/Warren Y. Jobe /s/David M. Ratcliffe Warren Y. Jobe David M. Ratcliffe /s/James R. Lientz, Jr. /s/Cliff S. Thrasher James R. Lientz, Jr. Cliff S. Thrasher /s/Zell Miller Zell Miller Extract from minutes of meeting of the board of directors of Georgia Power Company. - - - - - - - - - - RESOLVED: That for the purpose of signing reports under the Securities Exchange Act of 1934 to be filed with the Securities and Exchange Commission with respect to (a) the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1998, and (b) quarterly filings on Form 10-Q during 1999; and of remedying any deficiencies with respect thereto by appropriate amendment or amendments, this Company and the members of its Board of Directors authorize their several powers of attorney to W. L. Westbrook and Wayne Boston. - - - - - - - - - - The undersigned officer of Georgia Power Company does hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Georgia Power Company, duly held on February 17, 1999, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 GEORGIA POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary EX-24.D 42 EXHIBIT 24(d) February 26, 1999 Mr. W. L. Westbrook Mr. Wayne Boston The Southern Company Southern Company Services, Inc. 270 Peachtree Street, N.W. 241 Ralph McGill Blvd. NE Atlanta GA 30303 Atlanta GA 30308-3374 Dear Sirs: Re: Forms 10-K and 10-Q Gulf Power Company proposes to file or join in the filing of statements under the Securities Exchange Act of 1934 with the Securities and Exchange Commission with respect to the following: (1) its Annual Report on Form 10-K for the year ended December 31, 1998, and (2) its 1999 quarterly reports on Form 10-Q. Gulf Power Company and the undersigned Directors and Officers of said Company, individually as a Director and/or as an Officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, quarterly reports on Form 10-Q and any appropriate amendment or amendments thereto and any necessary exhibits. Sincerely, By /s/Travis J. Bowden Travis J. Bowden President and Chief Executive Officer - 2 - /s/Travis J. Bowden /s/Barbara H. Thames Travis J. Bowden Barbara H. Thames /s/Paul J. DeNicola /s/Arlan E. Scarbrough Paul J. DeNicola Arlan E. Scarbrough /s/Fred C. Donovan /s/Ronnie R. Labrato Fred C. Donovan Ronnie R. Labrato /s/W. D. Hull, Jr. /s/Warren E. Tate W. D. Hull, Jr. Warren E. Tate /s/Joseph K. Tannehill Joseph K. Tannehill Extract from minutes of meeting of the board of directors of Gulf Power Company. - - - - - - - - - - RESOLVED, That for the purpose of signing the statements under the Securities Exchange Act of 1934 to be filed with the Securities and Exchange Commission with respect to the filing of this Company's Annual Report on Form 10-K for the year ended December 31, 1998, and its 1999 quarterly reports on Form 10-Q, and of remedying any deficiencies with respect thereto by appropriate amendment or amendments (both before and after such statements become effective), this Company, the members of its Board of Directors, and its Officers, are authorized to give their several powers of attorney to W. L. Westbrook and Wayne Boston. - - - - - - - - - - The undersigned officer of Gulf Power Company does hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Gulf Power Company, duly held on February 26, 1999, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 GULF POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary EX-24.E 43 EXHIBIT 24(e) February 24, 1999 W. L. Westbrook and Wayne Boston Dear Sirs: Mississippi Power Company proposes to file or join in the filing of statements under the Securities Exchange Act of 1934 with the Securities and Exchange Commission with respect to the following: (1) the filing of its Annual Report on Form 10-K for the year ended December 31, 1998, and (2) the filing of its quarterly reports on Form 10-Q during 1999. Mississippi Power Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint each of you our true and lawful Attorney for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, quarterly reports on Form 10-Q and any appropriate amendment or amendments thereto and any necessary exhibits. Yours very truly, MISSISSIPPI POWER COMPANY By /s/Dwight H. Evans Dwight H. Evans President and Chief Executive Officer - 2 - /s/Paul J. DeNicola /s/George A. Schloegel Paul J. DeNicola George A. Schloegel /s/Edwin E. Downer /s/Philip J. Terrell Edwin E. Downer Philip J. Terrell /s/Dwight H. Evans /s/Gene Warr Dwight H. Evans Gene Warr /s/Robert S. Gaddis /s/Michael W. Southern Robert S. Gaddis Michael W. Southern /s/Linda T. Howard /s/Frances V. Turnage Linda T. Howard Frances V. Turnage - - - - - - - ------------------------------ Aubrey K. Lucas Extract from minutes of meeting of the board of directors of Mississippi Power Company. - - - - - - - - - - RESOLVED: That the members of this Company's Board of Directors and its officers are authorized to give their several powers of attorney to W. L. Westbrook and Wayne Boston for the purpose of signing the statements under the Securities Exchange Act of 1934 to be filed with the Securities and Exchange Commission with respect to the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 1998, and the filing of this Company's quarterly reports to the Securities and Exchange Commission on Form 10-Q for the year 1999. - - - - - - - - - - The undersigned officer of Mississippi Power Company does hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Mississippi Power Company, duly held on February 24, 1999, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 MISSISSIPPI POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary EX-24.F 44 EXHIBIT 24(f) February 23, 1999 W. L. Westbrook and Wayne Boston Dear Sirs: Savannah Electric and Power Company proposes to file with the Securities and Exchange Commission, under the Securities Exchange Act of 1934, (1) its Annual Report on Form 10-K for the year ended December 31, 1998, and (2) its quarterly reports on Form 10-Q during 1999. Savannah Electric and Power Company and the undersigned directors and officers of said Company, individually as a director and/or as an officer of the Company, hereby make, constitute and appoint W. L. Westbrook and Wayne Boston our true and lawful Attorneys for each of us and in each of our names, places and steads to sign and cause to be filed with the Securities and Exchange Commission in connection with the foregoing said Annual Report on Form 10-K, quarterly reports on Form 10-Q, and any appropriate amendment or amendments thereto and any necessary exhibits. Yours very truly, SAVANNAH ELECTRIC AND POWER COMPANY By /s/G. Edison Holland, Jr. G. Edison Holland, Jr. President and Chief Executive Officer - 2 - /s/Archie H. Davis /s/Robert B. Miller, III Archie H. Davis Robert B. Miller, III /s/Paul J. DeNicola /s/Arnold M. Tenenbaum Paul J. DeNicola Arnold M. Tenenbaum /s/Walter D. Gnann /s/K. R. Willis Walter D. Gnann K. R. Willis /s/G. Edison Holland, Jr. /s/Nancy E. Frankenhauser G. Edison Holland, Jr. Nancy E. Frankenhauser Extract from minutes of meeting of the board of directors of Savannah Electric and Power Company. - - - - - - - - - - RESOLVED: That for the purpose of signing statements required to be filed by the Company under the Securities Exchange Act of 1934 to be filed with the Securities and Exchange Commission including (a) the filing of this Company's Annual Report on Form 10-K for the year ended December 31, 1998, and (b) quarterly reports on Form 10-Q during calendar year 1999; and of remedying any deficiencies with respect thereto by appropriate amendment or amendments, this Company and the members of its Board of Directors, and its officers, be and they are hereby authorized to give their several powers of attorney to W. L. Westbrook and Wayne Boston for the purposes set out above. - - - - - - - - - - The undersigned officer of Savannah Electric and Power Company does hereby certify that the foregoing is a true and correct copy of resolution duly and regularly adopted at a meeting of the board of directors of Savannah Electric and Power Company, duly held on February 23, 1999, at which a quorum was in attendance and voting throughout, and that said resolution has not since been rescinded but is still in full force and effect. Dated March 24, 1999 SAVANNAH ELECTRIC AND POWER COMPANY By /s/Wayne Boston Wayne Boston Assistant Secretary -----END PRIVACY-ENHANCED MESSAGE-----