Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into on
the 22 day of December, 2004, by and between SOUTHERN NUCLEAR OPERATING COMPANY,
INC. (hereinafter called "Company") and XXXXXXX XXXXXX XXXXXXXX III (hereinafter
called "Employee"), to be effective as of December 23, 2004.
W I T N E S S E T H:
WHEREAS, Employee has been employed by Company in the position of
Chief Executive Officer and President of Company;
WHEREAS, Employee ceased acting as Chief Executive Officer and
President of Company effective September 1, 2004, and became the Chairman of the
Company;
WHEREAS, Company recognizes Employee's contributions to Company and
desires to provide for the continued employment of Employee for a limited
duration in the position of Chairman on the terms and conditions set forth
herein;
WHEREAS, Employee is willing to commit himself to continue to serve
Company in the position of Chairman on the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premise, the mutual promises,
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Employment.
Subject to the terms and conditions of
this Agreement, Company shall continue to employ
Employee in the position of Chairman, and Employee
hereby accepts continued employment in such position.
2. Term of Employment.
(a) The term of Employee's employment under this
Agreement shall be for approximately six (6) months,
commencing on the effective date of this Agreement as
set forth above and expiring on July 1, 2005, unless
and until this Agreement is terminated earlier
pursuant to Section 7, 8, or 9 hereof ("Term").
(b) In the event the Employee's employment with the
Company is not terminated pursuant to Section 7, 8,
or 9 hereof on or before July 1, 2005, Employee's
employment with the Company will in any event be
terminated on July 1, 2005.
(c) Any termination of Employee's employment under the
terms of this Agreement will not affect in any way
the continuous obligations of the Employee and the
Company, specifically including, but not limited to,
those obligations set forth in Sections 10, 11, 12,
13 and 14 of this Agreement.
3. Position And Responsibilities.
(a) Position. During the Term of this Agreement, Employee
shall serve as Chairman and shall perform such duties
and responsibilities incident to such position,
including but not limited to, advising Company
regarding operations and continuing in his term as
Chair of the Nuclear Energy Institute, and any other
related duties as may from time to time be assigned
to him by the Chairman, Chief Executive Officer and
President of Southern Company or his designee
(hereafter "Southern CEO").
(b) Full-Time Efforts. Employee shall perform and
discharge faithfully, diligently and to the best of
his ability such duties and responsibilities and
shall devote his full-time efforts to the business
and affairs of Company. Employee agrees to promote
the best interests of Company and to not take any
actions that in any way damage the public image or
reputation of Company, its parent, its subsidiaries
or its affiliates.
(c) No Interference With Duties. Except for those
activities related to Employee's ownership
interests in Xxxxxxxx Farm LLC and WGH Farm LLC,
Employee shall not devote time to other activities
such as would inhibit or otherwise interfere with
the proper performance of his duties, and shall
not be directly or indirectly concerned or
interested in any other occupation, activity or
interest in any business whatsoever other than (i)
holding an interest as a minority shareholder or
securities or debenture holder in a company quoted
on a nationally recognized exchange or (ii)
serving on civic, charitable or industry
organization boards or committees, so long as
such activities do not significantly interfere
with the performance of Employee's
responsibilities as an employee of Company in
accordance with this Agreement.
(d) Location. Employee's services shall be performed in
an office located at 00 Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx, or any other office or location
prescribed by the Southern CEO.
4. Work Standard and Compliance with Laws. Employee
hereby agrees that he will at all times comply with
and abide by all terms and conditions set forth in
this Agreement, and all applicable work policies,
procedures and rules as may be issued by Company.
Employee further agrees that he shall comply with all
federal, state, and local statutes, regulations, and
ordinances governing the performance of his duties
hereunder.
5. Compensation. Subject to the terms and conditions set
forth in this Agreement, Company shall pay Employee
and Employee shall accept a base salary at a monthly
rate of Forty Thousand Four Hundred Eighty-One
Dollars and Seventy Cents ($40,481.70) ("Base
Salary") during the Term of this Agreement. The Base
Salary shall be paid in accordance with Company's
normal payroll practices. Employee's Base Salary
shall be subject to increase at the discretion of
management, but in no event shall Employee's Base
Salary be decreased. All compensation payable to
Employee pursuant to this Agreement shall be subject
to, and Company will deduct and withhold, all
applicable federal, state and local withholding,
employment, social security, and other similar taxes.
6. Benefits. During the Term of Employee's employment
under this Agreement, Employee shall receive benefits
under the various Company and Southern Company plans
generally provided to other similarly situated
employees of Company which shall include, but shall
not be limited to, pension and capital accumulation
plans and welfare benefit plans ("Benefit Plans"), in
accordance with the terms and conditions of such
Benefit Plans. Company shall not by reason of this
Section 6 be obligated to institute, maintain, or
refrain from changing, amending or discontinuing, any
such Benefit Plans.
7. Termination for Cause. Notwithstanding anything
herein to the contrary, Employee's employment under
this Agreement may be immediately terminated at any
time by Company without any liability owing to
Employee or Employee's beneficiaries under this
Agreement, except for any vested benefits under any
other plan or agreement covering Employee which shall
be governed by the terms of such plan or agreement,
under the following conditions, each of which shall
constitute "Cause" or "Termination for Cause":
(a) Employee's conviction of or pleading no contest to a
felony or misdemeanor involving moral turpitude;
(b) Employee's violation of Section 12 of this Agreement;
(c) Employee's breach or default in the performance of
any provision of this Agreement;
(d) The determination by the Southern CEO in his sole
discretion that Employee has engaged in any conduct
or made any statement that is detrimental to or would
prejudice the reputation, character or standing of
Company, Southern Company or any of the subsidiaries
or affiliates of Southern Company (collectively,
"Southern Entities") or would bring any of the
Southern Entities into contempt or ridicule or would
reasonably shock or offend any community in which any
of the Southern Entities is located; or
(e) The determination by the Southern CEO that in his
sole discretion Employee has engaged in misconduct,
insubordination, unacceptable performance or
fraudulent or unethical conduct.
8. Termination Upon Death. Notwithstanding anything
herein to the contrary, this Agreement shall
terminate immediately upon Employee's death, and
Company shall have no further liability to Employee
or his beneficiaries under this Agreement, except for
any vested benefits under any other plan or agreement
covering Employee which shall be governed by the
terms of such plan or agreement.
9. Other Termination of Employment.
(a) Notwithstanding anything herein to the contrary,
Company may terminate Employee's employment under
this Agreement at any time without Cause with thirty
(30) days prior written notice to Employee.
(b) Notwithstanding anything herein to the contrary,
Employee may terminate his employment under this
Agreement at any time with thirty (30) days prior
written notice to Company.
(c) Upon Employee's termination under this Section 9,
Company shall have no further liability to Employee
or to his beneficiaries under the terms of this
Agreement, except for any vested benefits under any
other plan or agreement covering Employee which shall
be governed by the terms of such plan or agreement.
(d) If Employee tenders a resignation under the terms of
Section 9(b), Company may elect, at its sole
discretion, to terminate Employee's employment at any
time after receipt of Employee's notice of
resignation and, upon exercise of such option, shall
be obligated to pay to Employee only that portion of
the Base Salary which has been earned by him through
the effective date of such termination. Employee will
otherwise be entitled to all other payments or
benefits as set forth in Section 6.
10. Publicity; No Disparaging Statement. Except as
otherwise provided in Section 11 hereof, Employee
covenants and agrees not to engage in any internal or
external communications which shall disparage the
Company or interfere with the Company's existing or
prospective business relationships, or otherwise
negatively impact Company employees or operations, as
to be determined by the Southern CEO.
11. 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
former, 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 or prohibit
Employee from engaging in any other protected
activities under applicable law (including protected
activities described in Section 211 of the Energy
Reorganization Act).
12. Non-Disclosure.
(a) Definitions. For purposes of this Section 12, the
following terms shall have the following meanings:
(i) "Confidential Information" shall mean the
proprietary and confidential data, information,
documents or materials (whether oral, written,
electronic or otherwise) belonging to or
pertaining to the Southern Entities other than
"Trade Secrets" (as defined below), which is of
tangible or intangible value to the Southern
Entities and that is not generally known to the
public or the Southern Entities' competitors but
is known only to the Southern Entities and those of
their employees, independent contractors or agents
to whom such information must be confided for
business purposes, including, without limitation,
information regarding the Southern Entities'
customers, suppliers, partners and affiliates and
other items that the Southern Entities may from
time to time xxxx or otherwise identify as
confidential, which are gained by Employee as a
result of his affiliation with Company, and all
non-public information known by or in the
possession of Employee related to or regarding any
regulatory proceedings involving or related to the
Southern Entities .
(ii) "Trade Secrets" shall mean all knowledge, data and
information of Company which is defined as a "trade
secret" under applicable law.
(b) As the Chairman, Employee will be exposed to and have
access to certain Trade Secrets and Confidential
Information. Employee acknowledges and agrees that
the Trade Secrets and Confidential Information
represent a substantial investment by Company and
that any unauthorized disclosure or use of any of the
Trade Secrets or Confidential Information or any
other violation of the confidentiality provisions of
this Section 12, would be wrongful and could cause
immediate and irreparable injury to Company.
(c) Except as required in order to perform its
obligations under this Agreement, or ordered by a
court or regulatory agency, Employee shall regard and
treat Trade Secrets and all Confidential Information
as strictly confidential and wholly-owned by Company
and shall not, for any reason, in any fashion, either
directly or indirectly, use, sell, lend, lease,
distribute, license, give, publish, market, transfer,
assign, show, disclose, divulge, disseminate,
reproduce, copy, misappropriate or otherwise
communicate in any way to or for any person or
entity:
(i) any Confidential Information during the term of this
Agreement and for a period of three (3) years
thereafter; or
(ii) any Trade Secret at any time during which such
information constitutes a trade secret under
applicable law.
(d) Employee shall exercise his best efforts to ensure
the continued confidentiality of all Trade Secrets
and Confidential Information of Company known by,
disclosed to or made available to Employee, whether
in connection with this Agreement or any other past
or present relationship with Company. Employee shall
immediately notify Company of any unauthorized
disclosure or use of any Trade Secrets or
Confidential Information of which Employee becomes
aware. Employee shall assist Company, to the extent
necessary, in the procurement or any protection of
Company's rights to or in any of the Trade Secrets or
Confidential Information.
(e) Immediately upon termination of this Agreement or at
any point prior to or after that time upon the
specific request of the Company, Employee shall
return to Company, all written or descriptive
materials of any kind or any Confidential Information
or Trade Secrets in his possession, and the
confidentiality obligations described in this
Agreement shall continue until their expiration under
the terms of this Agreement.
13. Work Product. All work product, property, data,
documentation, "know-how," concepts or plans,
inventions, improvements, techniques, processes or
information or materials conceived, discovered,
written, revised, developed or created by Employee
pursuant to his previous, current and ongoing
relationship with, or employment by, Company
(collectively, the "Work Product") shall be owned
exclusively by the Company. To the greatest extent
possible, any Work Product shall be deemed to be
"work made for hire" (as defined in the Copyright
Act, 17 U.S.C.A. ss. 101 et seq., as amended).
Employee hereby unconditionally and irrevocably
transfers and assigns to the Company all rights,
title and interest Employee currently has or in the
future may have by operation of law or otherwise in
or to any Work Product, including, without
limitation, all patents including extensions,
copyrights, trade secrets, trademarks and service
marks and the goodwill associated with each
respective xxxx, and other intellectual property
rights. Employee agrees to execute and deliver to the
Company any transfers, assignments, documents or
other instruments which the Company may deem
necessary or appropriate, from time to time, to
protect the rights granted herein or to vest complete
title and ownership of any Work Product, and all
rights therein, exclusively in the Company.
14. Return of Materials. Employee agrees to return all of
Company's property to Company prior to the
termination of this Agreement for any reason, except
as otherwise approved by the Southern CEO. Such
property includes, but is not limited to, the
original and any copy (regardless of the manner in
which it is recorded) of all information, materials
and documents provided by Company to Employee or
which Employee has developed or collected in the
scope of Employee's employment, as well as all
Company-issued equipment, supplies, accessories,
computers and computer disks, computer files, keys,
access cards, credit cards, parking cards,
identification cards, fax machines, beepers,
Blackberries, and telephones. The parties agree that
upon the termination of Employee's employment,
Company is authorized to deduct from final
compensation or other monies due to Employee any
debts or financial obligations owed to Company by
Employee.
15. General Provisions.
(a) Approval. The terms and conditions of this Agreement
are subject to approval by the Compensation and
Management Succession Committee of the Southern
Company Board of Directors, and upon such approval,
this Agreement shall become effective as of the date
set forth above.
(b) Amendment. This Agreement may be amended or modified
only by a writing signed by both of the parties
hereto.
(c) Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon Employee (including
his heirs and personal representatives) and Company
(including its successors and assigns).
(d) Waiver Of Breach; Specific Performance. The waiver of
a breach of any provision of this Agreement shall not
be construed as or operate 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.
(e) 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 Company.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the
State of Alabama, without giving effect to conflict
of law provisions.
(g) Entire Agreement. This Agreement contains the full
and complete understanding of the parties hereto with
respect to the subject matter contained herein and
this Agreement supercedes and replaces any prior
agreement, either oral or written, which Employee may
have with Company that relates generally to the same
subject matter.
(h) Severability. If any one or more of the terms,
provisions, covenants or restrictions of this
Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable,
then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall
remain in full force and effect, and to that end the
provisions hereof shall be deemed severable.
(i) Assignment. This Agreement may not be assigned by
Employee without the prior written consent of
Company, and any attempted assignment not in
accordance herewith shall be null and void and of no
force or effect.
(j) Survival. Sections 10, 11, 12, 13 and 14 of this
Agreement shall survive any termination of this
Agreement.
(k) Section Headings. The section headings set forth
herein are for convenience of reference only and
shall not affect the meaning or interpretation of
this Agreement whatsoever.
(l) Notices.
(i) All notices and all other communications provided for
herein shall be in writing and delivered personally
to the other designated party, or mailed by certified
or registered mail, return receipt requested, or
delivered by a recognized national overnight courier
service, or sent by facsimile, as follows:
If to Company to: Southern Nuclear Operating
Company,Inc.
c/o Xxxxxxxxxxx X. Xxxxxx
VP Employee Relations & Associate
General Counsel
Southern Company Services, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
If to Employee to: Xx. Xxxxxxx Xxxxxx Xxxxxxxx III
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
(ii) All notices sent under this Agreement shall be deemed given
twenty-four (24) hours after sent by facsimile or courier,
three (3) business days after sent by certified or registered
mail and when delivered if personal delivery.
(iii) Either party hereto may change the address to which notice is
to be sent hereunder by written notice to the other party in
accordance with the provisions of this Section.
(m) 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.
(n) Voluntary Agreement. Employee and Company represent and agree
that each has reviewed all aspects of this Agreement, has
carefully read and fully understands all provisions of this
Agreement, and is voluntarily entering into this Agreement.
Each party represents and agrees that such party has had the
opportunity to review any and all aspects of this Agreement
with legal, tax or other adviser(s) of such party's choice
before executing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their
duly authorized representative to execute, this Agreement as of the dates below
written.
"COMPANY"
SOUTHERN NUCLEAR OPERATING COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxxxx 12/22/04
---------------------------------------------------------
Date
Title: VP Human Resources
-----------------------------------------------------
"EMPLOYEE"
/s/ Xxxxxxx Xxxxxx Xxxxxxxx III 12/21/04
------------------------------------------------------------
Xxxxxxx Xxxxxx Xxxxxxxx III Date
