Exhibit 10(a)95
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered
into by and between THE SOUTHERN COMPANY (the "Company") and XXXXXX X. XXXXXXXX,
III ("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
forty-one (41) 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 or about April 1, 2001;
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 and other severance benefits 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 or about
April 1, 2001 (the Employee's "Termination Date"), and effectiveness of the
Release attached hereto as Exhibit 1 (such effectiveness being no earlier than
the Employee's Termination Date), the Company agrees to pay to Employee or his
spouse, if applicable, the amounts described in Paragraphs 3, 4, 5, 6, 8 and 9
hereof. Employee covenants and agrees that the consideration set forth in
Paragraphs 2(b), 3, 4, 5, 6, 8 and 9 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 11 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. Stock Option Grant for Year 2001.
(a) Company has granted to Employee an Award of Non-Qualified Stock
Options ("Options") under The Southern Company Performance Stock Plan
("Performance Stock Plan") that when multiplied by The Southern Company's stock
price at the time of grant equals or exceeds Six Million Six Hundred Forty
Thousand Dollars and No Cents ($6,640,000.00).
(b) In addition, Company has granted to Employee 350,000 Options which
represents approximately thirty-three percent (33%) of Employee's outstanding
and unexercised options granted prior to January 1, 2001. The amount of Options
granted in accordance with the preceding sentence was based on the projected
adjustment that the Company intends to make to all outstanding options on
account of the anticipated spin-off of Mirant Corporation from the Southern
Company. The adjustment is designed to provide option holders with a similar
aggregate value in options before and after such transaction.
(c) Options granted in accordance with 2(a) and (b) above shall be used
to calculate Employee's Awards under The Southern Company Performance Dividend
Plan and Supplemental Performance Dividend Payments under Paragraph 9 herein.
3. Severance Payment to Employee. Subject to Paragraph 1, on the
effective date of the Release (such effective date being no earlier than the
Employee's Termination Date), the Company shall pay to Employee a lump sum
amount equal to Two Hundred Thousand Dollars and No Cents ($200,000.00) for
miscellaneous perquisites. In accordance with Paragraph 22, 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.
4. Supplemental Pension Payments. Subject to the terms and conditions
of this Agreement, including Paragraph 1 hereof, beginning the first day of the
first month following both Employee's Termination Date and the effective date of
the Release (such effective date being no earlier than the Employee's
Termination Date), the Company shall pay to Employee an Employee Replacement
Benefit adjusted pursuant to subparagraph 4(c) below.
(a) "Employee Replacement Benefit" shall mean a monthly amount
equal to the difference between Employee's Monthly Retirement Benefit and the
Monthly Retirement Benefit which would have been payable to Employee if:
(i) Employee's Accrued Retirement Income under
The Southern Company Pension Plan ("Pension
Plan"), SERP Benefit under The Southern
Company Supplemental Executive Retirement
Plan ("SERP") and Pension Benefit under The
Southern Company Supplemental Benefit Plan
("Supplemental Benefit Plan") were not
reduced for Early Retirement;
(ii) Employee's Retirement Income under the
Pension Plan, SERP Benefit under the SERP
and Pension Benefit under the Supplemental
Benefit Plan were calculated as if:
(x) Employee's period of Accredited Service
under the Pension Plan included an
additional year and one month of Accredited
Service;
(y) Employee's Average Monthly Earnings were
determined as if Employee received Earnings
through April 30, 2002, with a three percent
(3%) increase (or, if greater, his actual
awarded increase) in base salary for the
immediately preceding year on March 1, 2001,
and a three percent (3%) increase in base
salary on March 1, 2002; and
(z) Employee received (i) an Incentive Pay Award
for the 2001 Performance Period under The
Southern Company Performance Pay Plan
(Shareholder Approved) ("Performance Pay
Plan"), or any other similar plans in which
the Employee participates, equal to the
greater of 150% of target as established by
the Compensation and Management Succession
Committee of the Board of Directors of The
Southern Company ("Compensation Committee"),
or the actual Awards which would have been
paid to Employee under such plans if
Employee had continued employment through
the last day of the 2001 Performance Period
and if Employee's 2001 Annual Salary was
calculated taking into consideration the
increase in base salary contemplated under
subsection (y) immediately above, and (ii)
an Incentive Pay Award for the 2002
Performance Period under the Performance Pay
Plan, or any other similar plans in which
the Employee participates, equal to the
greater of 150% of target as established by
the Compensation Committee or the actual
Awards which would have been paid to
Employee under such plans if Employee
continued employment until, and retired on,
April 30, 2002, and if Employee's 2002
Annual Salary was calculated taking into
consideration the increases in base salary
contemplated under subsection (y)
immediately above. (b) "Monthly Retirement
Benefit" shall mean the sum of the monthly
amount payable to Employee as of his
Termination Date under each of the Pension
Plan, the SERP and the Supplemental Benefit
Plan.
(c) The benefits provided in this Paragraph 4 and Paragraph 5
below shall be adjusted to reflect the provisional payee option selected under
the Pension Plan. For purposes of calculating the Retirement Income in these
Paragraphs, no limitation on benefits imposed by the Internal Revenue Code as it
now exists or is hereinafter amended, or any limiting legislation, shall be
taken into account. Any amounts payable in accordance with this Paragraph 4 and
Paragraph 5 below shall be recalculated from time to time to reflect future
increases, if any, in Retirement Income of retirees following the Employee's
retirement.
5. Minimum Pension Payments. Notwithstanding the terms of this
Agreement, in no event shall the sum of the payments to Employee under the
Pension Plan, the SERP, the Supplemental Benefit Plan and Paragraph 4 of this
Agreement (collectively, "Pension Payments"), equal less than a single life
annuity of One Million Seven Hundred Thirty-Three Thousand Dollars and No Cents
($1,733,000.00) per year ("Pension Payment Floor"), as adjusted to reflect the
provisional payee option selected. Subject to Paragraph 1, if Employee's Pension
Payments are less than the Pension Payment Floor, Company shall pay to Employee,
commencing on the first day of the first month following both the Employee's
Termination Date and the effective date of the Release (such effective date
being no earlier than the Employee's Termination Date), and thereafter on the
first day of each succeeding month during the lifetime of the Employee, an
amount equal to the difference between the Pension Payments actually payable to
Employee and the Pension Payment Floor, as adjusted pursuant to Paragraph 4(c).
6. Payments to Provisional Payee in the Event of Employee's Death.
Employee shall only be entitled to the benefit payments set forth in Paragraphs
4 and 5 above that become due and payable between the Employee's Termination
Date and his death. Upon the death of Employee, the provisional payee designated
by the Employee (or designated for him by default) under the Pension Plan, if
living, shall be entitled to the following amounts:
(a) Provisional Payee Payments. Beginning on the first day of
the first month following the Employee's Termination Date, the effective date of
the Release and the Employee's death, the Company agrees to pay to such
provisional payee (i) a monthly benefit determined pursuant to Paragraph 4
herein, and (ii) payments determined, if any, pursuant to Paragraph 5 herein.
All payments to the Employee's provisional payee pursuant to this Paragraph 6(a)
shall be adjusted pursuant to Paragraph 4(c).
(b) Provisional Payee's Death. Upon the death of such
provisional payee following the death of Employee, a Lump Sum Death Benefit
shall be payable to such provisional payee's heirs or assigns. For purposes of
the preceding sentence, "Lump Sum Death Benefit" means the Present Value of the
Employee Replacement Benefit under Paragraph 4, plus any payments under
Paragraph 5 herein less the amount of the Employee Replacement Benefit and any
payments under Paragraph 5 actually paid to Employee and his provisional payee.
For purposes of the preceding sentence, the "Present Value" of the Employee
Replacement Benefit, plus any payments under Xxxxxxxxx 0, xxxxx xx calculated
using seven and one-half percent (7 1/2%) interest and the 1983 Group Annuity
Mortality Table with male and female rates averaged determined as of the
Employee's Termination Date.
7. Lump Sum Payments. Notwithstanding the terms of this Agreement, the
Company may, in its sole discretion, at any time, pay a Lump Sum Payment to the
Employee or his provisional payee, as applicable, in lieu of the benefits
provided in Paragraphs 4 and 5. "Lump Sum Payment" shall mean the present value
of the unpaid Employee Replacement Benefit under Paragraph 4 hereof, plus unpaid
payments under Paragraph 5, if any, determined as of the date such Lump Sum
Payment is paid to Employee. Present value shall be determined using seven and
one-half percent (7 1/2%) interest and the 1983 Group Annuity Mortality Table
with male and female rates averaged.
8. Supplemental Incentive Pay Award. Subject to Paragraph 1, Company
shall credit to Employee's Account under the Southern Company Deferred
Compensation Plan ("Deferred Compensation Plan") an amount equal to the
difference between the Incentive Pay Award for the 2001 Performance Period
payable to Employee in accordance with the terms of The Southern Company
Performance Pay Plan (Shareholder Approved) (hereinafter referred to as the
"Performance Pay Plan"), or any other similar plan in which Employee
participates, and the amount which would have been payable to Employee under the
Performance Pay Plan if Employee had been employed through December 31, 2001 at
the same rate of salary he was receiving on his Termination Date ("Supplemental
Incentive Pay Award"), and such Supplemental Pay Award shall be invested
pursuant to Section 6.2 of the Deferred Compensation Plan. The Company shall
credit such Supplemental Incentive Pay Award to Employee's Account under the
Deferred Compensation Plan for investment pursuant to Section 6.2 of the
Deferred Compensation Plan on the same date Employee's 2001 Incentive Pay Award
under the Performance Pay Plan is credited to Employee's Account under the
Deferred Compensation Plan. In the event Employee dies prior to the date the
benefit provided under this Paragraph 8 is payable, the benefit in this
Paragraph shall be paid pursuant to the terms of the Performance Pay Plan.
Moreover, in the event Employee dies after the date the benefit provided under
this Paragraph 8 is payable but before the benefit is fully distributed under
the terms of the Deferred Compensation Plan, such benefit shall be paid under
the terms of the Deferred Compensation Plan.
9. Performance Dividend Payments. Subject to Paragraph 1, Company shall
pay to Employee (i) an amount equal to the Award Employee would have received
under The Southern Company Performance Dividend Plan ("Performance Dividend
Plan") based on its terms in effect as of the execution of this Agreement, if
Employee were eligible to receive Awards under the Performance Dividend Plan for
an additional Computation Period and if the Compensation Committee increased the
Payout Percentage by a factor of two (2) for Employee pursuant to Section 4.1 of
such Plan (i.e., total opportunity equals two times dividends) for the
additional Computation Period; and (ii) amounts equal to the difference, if any,
between each Award the Employee receives under the Performance Dividend Plan
after his Termination Date as a retired Participant and the Award the Employee
would have received under the Performance Dividend Plan based on its terms in
effect as of the execution of this Agreement if the Compensation Committee
increased the Payout Percentage by a factor of two (2) for Employee pursuant to
Section 4.1 of such Plan (i.e., total opportunity provided by Performance
Dividend Plan and this Agreement equals two times dividends). Payments under (i)
and (ii) of this Paragraph 9 are collectively referred to herein as,
"Supplemental Performance Dividend Payments". Company shall pay such
Supplemental Performance Dividend Payments on the date such Payments would have
been made under the Performance Dividend Plan if Employee were eligible or if
such amounts were payable, as applicable. In the event Employee dies prior to
the date the benefits provided under this Paragraph 9 are payable, the benefits
in this Paragraph shall be paid pursuant to the terms of the Performance
Dividend Plan. In the event, the Company's common stock is no longer traded on a
United States securities exchange, Employee shall not be entitled to a payment
under this Paragraph 9 except as may be provided under the Company's change in
control program as incorporated by the Performance Dividend Plan.
10. Publicity; No Disparaging Statement. Except as otherwise provided
in Paragraph 15 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.
11. Non-Disclosure, Non-Solicitation and Non-Competition Provisions.
(a) Preamble. As a material inducement to the Company to enter into
this Agreement and provide the benefits set forth in Paragraphs 2(b), 3, 4, 5,
6, 8 and 9, 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 11, 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, or any of its affiliates other
than "Trade Secrets" (as defined below),
which is of tangible or intangible value to
the Company, or any of its affiliates and
that is not generally known to the public
but is generally known only to the 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, 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 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,
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 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
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, other than Mirant
Corporation
(e) Non-Solicitation of Employees.
Employee agrees, during the three (3) 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 (3) year period, or within one (1) 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 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 (2) years from the date of separation from employment, other
than on behalf of Mirant Corporation or an acquiror of Mirant Corporation, in
any activity in which Employee has participated in or directed on behalf of the
Company or any of its affiliates within the past two (2) years.
12. 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.
13. 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.
14. 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 Paragraphs 2(b), 3, 4, 5, 6, 8 and 9, 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 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 his
employment.
15. 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.
16. 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).
17. 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 the Company.
18. 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.
19. 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 including, but not limited to, the
Company's right to recover amounts paid and/or to cease making payments under
Paragraphs 2(b), 3, 4, 5, 6, 8 and 9. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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 ________________, 2001.
"COMPANY"
THE SOUTHERN COMPANY
By:
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Its:
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"EMPLOYEE"
XXXXXX X. XXXXXXXX, III
EXHIBIT 1 to
Deferred Compensation Agreement
with XXXXXX X. XXXXXXXX, III
RELEASE AGREEMENT
THIS RELEASE ("Release') is made and entered into by and between XXXXXX
X. XXXXXXXX, III ("Employee") and THE SOUTHERN COMPANY, and its successor or
assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with The Southern Company shall terminate on or about April 1, 2001;
WHEREAS, Employee and the Company have previously entered into that
certain Deferred Compensation Agreement, dated _________________, 2001
("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 Paragraphs 3, 4, 5, 6, 8 and 9 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"
THE SOUTHERN 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"
XXXXXX X. XXXXXXXX, III
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Date
WITNESSED BY:
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Date
