Exhibit 10(d)6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into by and between
GULF POWER COMPANY (the "Company") and XXXX X. XXXXXX ("Consultant").
W I T N E S S E T H
WHEREAS, the Southern Company ("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, Consultant and Company have entered
into that certain Separation Agreement, dated [ ] , 2003 (the "Separation
Agreement") pursuant to which Consultant has been provided a Release Agreement
(the "Release");
WHEREAS, the Company desires 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.
(a) The term of this Agreement shall be for two (2) years, commencing
on the later of July 1, 2003 or the date on which the Release is effective and
expiring on June 30, 2005 ("Term"), unless the Agreement is terminated prior to
the expiration of the Term pursuant to Paragraph 2(b), (c), or (d) below. Each
twelve-month period, commencing on July 1, 2003 and each anniversary thereafter
during the Term of this Agreement, shall be considered, for purposes of this
Agreement, a "Contract Year."
(b) Notwithstanding Paragraph 2(a), either party may terminate this
Agreement at any time by providing a thirty (30) day written notice of intent to
terminate. If Company terminates this Agreement pursuant to this Paragraph 2(b),
Consultant shall be entitled to keep the Retainer Fees under Paragraph 5 hereof
which have already been paid to Consultant, and Company shall have no further
obligation to pay any unpaid Retainer Fees under this Agreement to Consultant.
If Consultant terminates this Agreement pursuant to this Paragraph 2(b),
Consultant shall be entitled only to his Pro Rata Compensation (as defined
below) through the date of the termination of this Agreement and Consultant
shall return to the Company the amount of any paid, but unearned, Retainer Fee.
For purposes of the preceding sentence and Paragraph 2(c), "Pro Rata
Compensation" shall mean the sum of (i) any Retainer Fees paid to Consultant for
Contract Years prior to the Contract Year in which the termination occurs, and
(ii) the Retainer Fee set forth in Paragraph 5 for the Contract Year in which
the termination occurs multiplied by a fraction, the numerator of which is the
number of whole months which have expired within such Contract Year plus the
month in which termination occurs if at least 15 days of such month have elapsed
and the denominator of which is 12.
(c) Notwithstanding Paragraphs 2(a) and (b), Company may immediately
terminate the Agreement at any time for Cause (as defined below). In this case,
Consultant shall be entitled only to his Pro Rata Compensation (as defined in
Paragraph 2(b)) through the date of the termination of this Agreement, and
Consultant shall return to the Company the amount of any paid, but unearned,
Retainer Fee. The Company shall have no further obligations with respect to the
payment of any compensation under this Agreement after Consultant's termination
except as provided in this Paragraph 2. "Cause" or "Termination for Cause" shall
include the following conditions:
1.Failure to Discharge Duties. Consultant willfully neglects
or refuses to discharge his duties hereunder or refuses to comply with
any lawful or reasonable instructions given to him by Company without
reasonable excuse;
2.Breach. Consultant shall have committed any material breach
or repeated or continued (after written warning) any breach of his
obligations hereunder;
3.Gross Misconduct. The Consultant is guilty of gross
misconduct. For the purposes of this Agreement, the following acts
shall constitute gross misconduct:
(i) Any act involving fraud or dishonesty or breach
of appropriate regulations of competent authorities in
relation to trading or dealing with stocks, securities,
investments and the like;
(ii) The carrying out of any activity or the making
of any statement which would prejudice and/or reduce the good
name and standing of Company, Southern or any of its
affiliates or would bring any one of these into contempt,
ridicule or would reasonably shock or offend any community in
which these companies are located;
(iii) Attendance at work in a state of intoxication
or otherwise being found in possession at his place of work of
any prohibited drug or substance, possession of which would
amount to a criminal offense;
(iv) Assault or other act of violence against any
employee of Company or other person during the course of his
engagement; or
(v) Conviction of any felony or misdemeanor involving
moral turpitude.
(d) If Consultant dies during the Term of this Agreement, the Agreement
shall terminate and Company shall have no further obligation to pay any unpaid
Retainer Fees under this Agreement to Consultant or his estate.
3.Duties. Consultant shall manage, perform, and provide professional
consulting services and advice ("Consulting Services") as Company may request in
writing from time to time. Consultant shall be available to provide Consulting
Services for the Company which, without limiting the foregoing, shall include
providing assistance to his successor in the form of historical context and
institutional knowledge regarding matters in which the Consultant was involved
while employed by Company. Consultant shall specifically be available to provide
such Consulting Services during the legislative session of the State of Florida.
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 Florida 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.
(a) As soon as administratively feasible after July 1, 2003 and the
effectiveness of the Release and on July 1, 2004, the Company shall pay to
Consultant an annual retainer fee equal to Twenty-Five Thousand Dollars and No
Cents ($25,000.00) ("Retainer Fee"), as consideration for the Consulting
Services to be provided by Consultant each Contract Year during the Term of this
Agreement pursuant to Paragraph 3 hereof. Consultant shall be reimbursed by the
Company for reasonable expenses incurred while conducting work as a 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.
0.Xxxxxxxx Protection Provision Definitions. For purposes of Paragraphs
6, 7 and 8, the following terms shall have the following meanings:
(a) "Confidential Information" shall mean the proprietary or
confidential data, information, documents or materials (whether oral, written,
electronic or otherwise) belonging to or pertaining to the Company, Southern or
their respective affiliates (collectively, "Southern Entities"), other than
"Trade Secrets" (as defined below), which is of tangible or intangible value to
any of the Southern Entities and the details of which are not generally known to
the competitors of the Southern Entities. Confidential Information shall also
include: (A) any items that any of the Southern Entities have marked
"CONFIDENTIAL" or some similar designation or are otherwise identified as being
confidential; and (B) all non-public information known by or in the possession
of Consultant, its agents and employees related to or regarding any proceedings
involving or related to the Southern Entities before the Florida Public Service
Commission or other Entities.
(b) "Trade Secrets" shall mean information or data of or about any of
the Southern Entities, including, but not limited to, technical or non-technical
data, formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists of
actual or potential customers or suppliers that: (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. Consultant agrees
that trade secrets include non-public information related to the rate making
process of the Southern Entities and any other information which is defined as a
"trade secret" under applicable law.
(c) "Work Product" shall mean all tangible work product, property,
data, documentation, "know-how," concepts or plans, inventions, improvements,
techniques and processes relating to the Southern Entities that were conceived,
discovered, created, written, revised or developed by Consultant for the Company
or any of the Southern Entities or their clients or Customers or by using any
Southern Entity's time, personnel, facilities, equipment, knowledge,
information, resources or material.
(d) "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 any other Southern Entity pursuant to the terms of this
Agreement.
(e) "Customer" shall have the meaning ascribed by Section 8 hereof.
(f) "Entity" shall mean any business, individual, partnership, joint
venture, agency, governmental agency, body or subdivision, association, firm,
corporation, limited liability company or other entity of any kind.
7. Nondisclosure: Ownership of Proprietary Property.
(a) Nondisclosure. In recognition of the need of Company to protect its
legitimate business interests, Consultant hereby covenants and agrees that
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 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: (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, 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.
(b) Allowed Disclosures. Notwithstanding Paragraph 7(a) 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.
(c) 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 any of the Southern Entities
known by, disclosed or made available to Consultant, whether in connection with
this Agreement or any other past or present relationship with Company or any of
the Southern Entities. 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 any of
the other Southern Entities, to the extent necessary, in the procurement or
protection of the Southern Entities' rights to or in any Work Product, Trade
Secrets or Confidential Information.
(d) Ownership. 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 U.S.C.A. xx.xx. 101 et
seq., as amended), 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 all rights,
title and interest Consultant or such persons currently have or may have by
operation of law or otherwise in or to any Work Product, including, without
limitation, all patents, copyrights, trademarks (and the goodwill associated
therewith), trade secrets, service marks (and the goodwill associated therewith)
and other Work Product rights. 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, from time to time, to protect the rights granted
herein or to vest complete title and ownership of any and all Work Product and
all associated intellectual property, and other rights therein, exclusively in
Company.
(e) 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, Consultant shall return and shall cause its agents, employees and
subcontractors to return to Company all written or descriptive materials of any
kind belonging or relating to the Company or its affiliates, including, without
limitation, any Work Product, Confidential Information and Trade Secrets, in
Consultant's or such persons' possession or control. The confidentiality
obligations described in this Agreement shall continue until their expiration
under the terms of this Agreement.
(f) 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 any of the other Southern Entities without the prior written
consent of the Company.
8. Non-Interference with Employees, Customers and Business.
(a) Consultant covenants and agrees that during the Term of this
Agreement, and for a period of two (2) 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: (i)
solicit, divert or appropriate or attempt to solicit, divert or appropriate any
customer or actively sought prospective customer of Company or any other
Southern Entity whom Consultant, its agents, employees or subcontractors, has
solicited, provided service to or otherwise had significant contact with while
providing services to Company or any other Southern Entity pursuant to this
Agreement (hereinafter "Customer"); (ii) refer, recommend or otherwise suggest
to any Customer the services of any Entity other than Company or any other
Southern Entity with respect to those types of services which the Southern
Entities are regularly in the business of providing; (iii) 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 the Southern Entities are
in the business of providing; (iv) seek or accept a Competitive Position with a
Customer. In addition, 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 solicit,
divert or appropriate or attempt to solicit, divert or appropriate any employee
or other contractor of Company or any other Southern Entity. 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-interference
with employees, customers and business agreement in a form reasonably acceptable
to Company and shall use its best efforts to cause such persons to comply with
such agreement.
(b) Consultant covenants and agrees that for a period of two (2) years
following the expiration or termination of this Agreement within the States of
Georgia, Alabama, Mississippi and Florida, it shall not obtain or work in any
employment, consulting, advisory, directorship, agency, promotional or
independent contractor arrangement or position with any person or Entity engaged
wholly or in material part in the business that the Company is engaged in
whereby the Consultant is required to or does perform services on behalf of or
for the benefit of such person or Entity which are substantially similar to the
services Consultant participated in or directed for the Company, the Southern
Company or any of their respective affiliates during the Term of this Agreement.
(c) Consultant and Company expressly covenant and agree that the scope,
territorial, time and other restrictions contained in this entire 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
Consultant's skills are such that it could easily find alternative, commensurate
work in its field which would not violate any of the provisions of this
Agreement.
9.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 Paragraphs 6, 7 and 8 would be wrongful and
cause immediate, significant, continuing and irreparable injury and damage to
Company and the other Southern Entities that is not fully compensable by
monetary damages. Should Consultant breach or threaten to breach any provision
of Paragraphs 6, 7 and 8, Company and any other Southern Entity 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 the other Southern Entities 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. 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:
If to Consultant: If to Company:
Xxxx X. Xxxxxx Xxxxx Xxxxx
0000 Xxx Xxxxx Xxxxx Gulf Power Company
Xxxxxx, XX 00000 Xxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
12. Indemnification. Consultant shall and does hereby expressly agree
to indemnify and hold harmless the 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.
13. 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.
14. 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.
15. Survival. Notwithstanding any expiration or termination of this
Agreement, the provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18
and 19 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.
16. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida, without giving effect to
conflicts of law provisions.
17. 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. The judicial body interpreting this Agreement shall be authorized and
instructed to rewrite any of the sections which are enforceable as written in
such a fashion so that they may be enforced to the greatest extent legally
possible. Consultant acknowledges and agrees that the covenants and agreements
contained in this Agreement, including, without limitation, the covenants and
agreements contained in Xxxxxxxxxx 0, 0, xxx 0, xxxxx xx construed as covenants
and agreements independent of each other or any other contract between the
parties hereto and that the existence of any claim or cause of action by
Consultant against Company, whether predicated upon this Agreement or any other
contract, shall not constitute a defense to the enforcement by Company of said
covenants and agreements.
18. 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.
19. 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 ________________, 2003.
"COMPANY" "CONSULTANT"
GULF POWER COMPANY XXXX X. XXXXXX
By:______________________________________ _____________________________
Its:_____________________________________ Witnessed By:________________
