Exhibit 10(a)99
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered
into by and between GEORGIA POWER COMPANY (the "Company") and XXXXX X. XXXXXX
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
thirty-five (35) years;
WHEREAS, Employee is a highly compensated employee of the Company and
is a member of its management;
WHEREAS, the parties have agreed that Employee's employment with the
Company shall terminate on September 1, 2000;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to such termination of employment, and desire
to reach an accord and satisfaction of all claims arising from Employee's
employment and his termination of employment, with appropriate releases; and
WHEREAS, the Company desires to provide Employee with deferred
compensation for service he has provided or will provide for 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 hereto, intending to be legally bound, hereby covenant and agree as
follows:
1. Termination of Employment. Upon Employee's execution of this
Agreement, voluntary termination of employment with the Company on September 1,
2000 (the Employee's "Termination Date"), and effectiveness of the Release
attached hereto as Exhibit 1, the Company agrees to pay to Employee or his
spouse, if applicable, the amounts described in Paragraph 2 hereof. Employee
covenants and agrees that the consideration set forth in Paragraph 2 is in full
satisfaction of all sums owed to Employee, if any, by the Company, and
constitutes good and complete consideration for his Release attached hereto as
Exhibit 1, those nondisclosure, non-compete and ownership obligations under
Paragraph 4 hereof and all other obligations and covenants of Employee contained
herein. Employee agrees that this Agreement provides him certain benefits to
which he would not otherwise be entitled.
2. Severance Payment to Employee. On the first day of the first month
following both the Employee's Termination Date and the effective date of the
Release attached hereto as Exhibit 1, the Company shall commence payments to
Employee of sixty-five (65) monthly installments in an amount equal to Eleven
Thousand Six Hundred Eighteen Dollars and Ninety-Five Cents ($11,618.95) per
monthly installment payment with the sum of all payments equal to $755,231.75.
In the event of a Southern Change in Control or a Subsidiary Change in Control
affecting Employee as defined in the Southern Company Deferred Compensation
Plan, unpaid installments shall be paid in a lump sum as soon as practicable
after the occurrence of such an event. In the event Employee dies before
receiving payment of the amount described in this Paragraph 2 hereof, it shall
be paid to Employee's spouse, if living, or if not, to the Employee's estate.
Upon application made by the Employee, his spouse, or an authorized legal
representative, as applicable, the Company may in its sole discretion determine
to accelerate installment payments due under this Agreement. In accordance with
Paragraph 15, Employee shall be responsible for all state and federal income
taxes and his share of FICA taxes owed on the foregoing amount, and Company
shall make appropriate withholding of these amounts.
3. Publicity; No Disparaging Statement. Except as otherwise provided in
Paragraph 8 hereof, Employee 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.
4. Non-Disclosure, Non-Solicitation and Non-Competition Provisions.
(a) Preamble. As a material inducement to the Company to enter into
this Agreement, and its recognition of the valuable experience, knowledge and
proprietary information Employee gained from his employment with the Company,
Employee warrants and agrees he will abide by and adhere to the following
Non-Disclosure, Non-Solicitation and Non-Competition Provisions.
(b) Definitions. For purposes of this Paragraph 4, the following terms
shall have the following meanings:
(i) "Confidential Information" shall mean the proprietary
and confidential data or information belonging to or
pertaining to the Company, The Southern Company or
any of its affiliates other than "Trade Secrets" (as
defined below), which is of tangible or intangible
value to the Company, The Southern Company or any of
its affiliates and that is not generally known to the
public but is generally known only to the Company,
The Southern Company or any of its affiliates and
those of its employees, independent contractors or
agents to whom such information must be confided for
business purposes, regarding the products, services,
contractual arrangements, customers, suppliers, and
partners of the Company, The Southern Company or any
of its affiliates gained by Employee as a result of
his employment with the Company, including, but not
limited to, all information known to Employee
regarding any proceedings brought before the Georgia
Public Service Commission during his employment with
the Company. Confidential Information shall also
include other items that the Company may from time to
time xxxx or otherwise identify as confidential.
(ii) "Entity" shall mean any business, individual,
partnership, joint venture, agency, governmental
subdivision, association, firm, corporation or other
entity.
(iii) "Territory" shall include Georgia, Alabama,
Mississippi or Florida.
(iv) "Trade Secrets" shall mean information of the
Company, The Southern Company or any of its
affiliates 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, non-public
information related to the rate making process of the
Company, The Southern Company or its affiliates,
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 or any
other information which is defined as a "trade
secret" under applicable law.
(v) "Work Product" shall mean all tangible work product,
property, data, documentation, "know-how," concepts
or plans, inventions, improvements, techniques and
processes relating to the Company, The Southern
Company or any of its affiliates that were conceived,
discovered, created or developed by Employee pursuant
to his employment with the Company.
(c) Nondisclosure: Ownership of Proprietary Property.
(i) In recognition of the need of the Company to protect
its legitimate business interests, Employee hereby
covenants and agrees that: (a) with regard to each
item constituting all or any portion of a Trade
Secret at all times such information remains a "trade
secret" under applicable law and (b) with regard to
any Confidential Information, for a period of three
(3) years following the Termination Date (hereafter
the "Nondisclosure Period"), Employee shall regard
and treat Trade Secrets and all Confidential
Information as strictly confidential and wholly-owned
by the Company and shall 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 or Entity for any
purpose other than in accordance with this Agreement
or as required by applicable law. Employee shall
exercise all reasonable best efforts to ensure the
continued confidentiality of all Trade Secrets and
Confidential Information of the Company known by,
disclosed to or made available to Employee in
connection with his employment relationship with the
Company or any other past or present relationship
with the Company. 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 of any protection of the Company's rights
to or in any of the Trade Secrets or Confidential
Information.
(ii) All 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 X.X.X.X.xx. 101
et seq., as amended), and Employee hereby
unconditionally and irrevocably transfers and assigns
to the Company all right, title and interest Employee
currently has or may have by operation of law or
otherwise in or to any Work Product, including,
without limitation, all patents, copyrights,
trademarks, trade secrets, service marks 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 vest complete title and ownership of any
and all Work Product, and all associated intellectual
property and other rights therein, exclusively in the
Company.
(iii) Employee represents and agrees that he will keep the
terms and amount of this Agreement completely
confidential, and except to his personal agents or to
the extent required by law, he will not hereafter
disclose this information concerning this Agreement
to anyone, including, but not limited to, any past,
present, or prospective employee or applicant for
employment with the Company. Employee may only
disclose to future, potential employers of Employee
that he participates in a deferred compensation and
consulting arrangement with the Company which imposes
certain restrictions on him related to such future,
potential employment. (d) No Employment.
Employee agrees that he shall not hereafter seek any
re-employment with the Company, its parent, its affiliates or its subsidiaries.
(e) Non-Solicitation Of Employees.
Employee agrees, during the three years following the Employee's
separation from employment, that he will not, either directly or indirectly,
alone or in conjunction with any other person or entity, actively recruit,
engage in passive hiring efforts, solicit, attempt to solicit, or induce any
person who, during such three year period, or within one year prior to
Employee's separation from employment, was an exempt employee of the Company or
any of its subsidiaries, or was an officer of The Southern Company or any of its
affiliates to leave or cease such employment for any reason whatsoever or hire
or engage the services of such person in any business substantially similar or
competitive with that in which The Southern Company and its affiliates were
engaged during the employment.
(f) Non-Solicitation of Customers.
Employee acknowledges that in the course of employment, he has
learned about Company's business, services, materials, programs and products and
the manner in which they are developed, marketed, serviced and provided.
Employee knows and acknowledges that the Company has invested considerable time
and money in developing its programs, agreements, offices, representatives,
services, products and marketing techniques and that they are unique and
original. Employee further acknowledges that the Company must keep secret all
pertinent information divulged to Employee and Company's business concepts,
ideas, programs, plans and processes, so as not to aid Company's competitors.
Accordingly, Company is entitled to the following protection, which Employee
agrees is reasonable:
Employee agrees that for a period of two (2) years following
termination of employment, he will not, on his own behalf or on behalf of any
person, firm, partnership, association, corporation, or other business
organization, entity or enterprise, knowingly solicit, call upon, or initiate
communication or contact with any person or entity or any representative of any
person or entity, with whom Employee had contact during his employment, with a
view toward the sale or the providing of any product, equipment or service sold
or provided or under development by Company during the period of two (2) years
immediately preceding the date of Employee's termination. The restrictions set
forth in this section shall apply only to persons or entities with whom Employee
had actual contact during the two (2) years prior to termination of employment
with a view toward the sale or providing of any product, equipment or service
sold or provided or under development by Company.
(g) Non-Competition.
Employee and Company expressly covenant and agree that the
scope, territorial, time and other restrictions contained in this Agreement
constitute the most reasonable and equitable restrictions possible to protect
the business interest of the Company given: (i) the business of the Company;
(ii) the competitive nature of the Company's industry; and (iii) that Employee's
skills are such that he could easily find alternative, commensurate employment
or consulting work in his field which would not violate any of the provisions of
this Agreement. Therefore, Employee agrees to not engage within the Territory
for a period of two years from the date of separation from employment in any
activity in which Employee has participated in or directed on behalf of the
Company, The Southern Company or any of its affiliates within the past two
years.
5. Return of Materials. Upon the Employee's termination, 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.
6. Cooperation. The parties agree that as a result of Employee's duties
and activities during his employment, Employee's reasonable availability may be
necessary for the Company to meaningfully respond to or address actual or
threatened litigation, or government inquiries or investigations, or required
filings with state, federal or foreign agencies (hereinafter "Company Matters").
Upon request of the Company, and at any point following termination of
employment, Employee will make himself available to the Company for reasonable
periods consistent with his future employment, if any, by other Entities and
will cooperate with its agents and attorneys as reasonably required by such
Company matters. The Company will reimburse Employee for any reasonable
out-of-pocket expenses associated with providing such cooperation.
7. Termination with Cause. In the event of Employee's termination of
employment for Cause at any time, the Employee shall forfeit the entire benefit
provided in Paragraph 2 and the Company shall have no further obligations with
respect to any amount under this Agreement. 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 an affiliate or
subsidiary of the Southern Company (collectively "Southern") or would bring
Southern into contempt, ridicule or would reasonably shock or offend any
community in which Southern is located; a material breach of the fiduciary
obligations owed by an officer and an employee to Southern; or the Employee's
unsatisfactory performance of the duties and services required by his or her
employment.
8. 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.
9. 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).
10. 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.
11. 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.
12. 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.
13. 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 benefit 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.
14. 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.
15. 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.
16. 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, The Southern Company Performance Sharing 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.
17. 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 ________________, 2000.
"COMPANY"
GEORGIA POWER COMPANY
By:
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Its:
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"EMPLOYEE"
XXXXX X. XXXXXX
EXHIBIT 1 to
Deferred Compensation Agreement
with Xxxxx X. Xxxxxx
RELEASE AGREEMENT
THIS RELEASE ("Release') is made and entered into by and between XXXXX
X. XXXXXX ("Employee") and GEORGIA POWER COMPANY, and its successor or assigns
("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Georgia Power Company shall terminate on September 1, 2000;
WHEREAS, Employee and the Company have previously entered into that
certain Deferred Compensation Agreement, dated _________________, 2000
("Agreement"), that this Release is incorporated therein by reference;
WHEREAS, Employee 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
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 the Deferred Compensation
Agreement, the Company agrees to pay the Employee or his spouse, as the case may
be, the amounts provided in Paragraph 2 of the Agreement.
4. No Admission Of Liability. This Release shall not in any way be
construed as an admission by 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.
5. 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.
6. 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:
"COMPANY"
GEORGIA POWER COMPANY
By:
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Its:
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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"
XXXXX X. XXXXXX
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Date
WITNESSED BY:
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Date
