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 XXXXXX X. XXXX ("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 xxxx 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 xxxx, 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. xx.xx.
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"
XXXXXX X. XXXX
-------------------------
WITNESSED BY:
-------------------------
Exhibit 1 to Deferred Compensation
Agreement with Xxxxxx X. Xxxx
RELEASE AGREEMENT
THIS RELEASE ("Release') is made and entered into by and between XXXXXX
X. XXXX ("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"
XXXXXX X. XXXX
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
XXXXXX X. XXXX ("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:
====================== =======================
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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
xxxx 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 xxxx, 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. xx.xx.
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 XXXXXX X. XXXX
By:_________________________________ ____________________________
Its:________________________________ Witnessed By:_______________
"SOUTHERN"
THE SOUTHERN COMPANY
By:_________________________________
Its:________________________________
