Exhibit 10.42
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and
between The Southern Company ("Southern"), Southern Company Services, Inc. (the
"Company") and Xx. Xxxxxxx Xxxx Xxxxxx. ("Xx. Xxxxxx") (hereinafter collectively
referred to as the "Parties") is effective May 1, 2001.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xx. Xxxxxx is Executive Vice President of the Company;
WHEREAS, the Company wishes to provide to Xx. Xxxxxx certain severance
benefits under certain circumstances following a change in control (as defined
herein) of Southern or 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 hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Annual Compensation" shall mean Xx. Xxxxxx' highest
annual base salary rate for the twelve (12) month period immediately
preceding the date of the Change in Control plus target bonus.
(b) "Beneficial Ownership" shall mean beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Exchange Act.
(c) "Board" shall mean the board of directors of the
Company.
(d) "Business Combination" shall mean a reorganization, merger
or consolidation of Southern or sale or other disposition of all or
substantially all of the assets of Southern.
(e) "Change in Control" shall mean any of the following:
(i) The Consummation of an acquisition by any Person
of Beneficial Ownership of 20% or more of Southern's Voting
Securities; provided, however, that for purposes of this
Paragraph 1.(e)(i), the following acquisitions of Southern's
Voting Securities shall not constitute a Change in Control:
(A) any acquisition directly from Southern;
(B) any acquisition by Southern;
(C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by Southern or any
Southern Subsidiary;
(D) any acquisition by a qualified pension plan or
publicly held mutual fund;
(E) any acquisition by a Group composed exclusively of
employees of Southern, or any Southern Subsidiary;
(F) any acquisition by Xx. Xxxxxx or any Group of which
Xx. Xxxxxx is a party; or
(G) any Business Combination which would not otherwise
constitute a change in control because of the application of
clauses (A), (B) and (C) of Paragraph 1.(e)(iii);
(ii) A change in the composition of the Southern
Board whereby individuals who constitute the Incumbent Board
cease for any reason to constitute at least a majority of the
Southern Board;
(iii) Consummation of a Business Combination,
provided, however, that such a Business Combination shall not
constitute a Change in Control if all three (3) of the
following conditions are met:
(A) all or substantially all of the
individuals and entities who held Beneficial
Ownership, respectively, of Southern's Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
65% or more of the combined voting power of the
Voting Securities of the corporation surviving or
resulting from such Business Combination, (including,
without limitation, a corporation which as a result
of such transaction holds Beneficial Ownership of all
or substantially all of Southern's Voting Securities
or all or substantially all of Southern's assets)
(such surviving or resulting corporation to be
referred to as "Surviving Company"), in substantially
the same proportions as their ownership, immediately
prior to such Business Combination, of Southern's
Voting Securities;
(B) no Person (excluding any corporation
resulting from such Business Combination, any
employee benefit plan (or related trust) of Southern,
any Southern Subsidiary or Surviving Company, Xx.
Xxxxxx, any Group of which Xx. Xxxxxx is a party, any
Group composed exclusively of Company employees, any
qualified pension plan (or related trust) or any
publicly held mutual fund) holds Beneficial
Ownership, directly or indirectly, of 20% or more of
the combined voting power of the then outstanding
Voting Securities of Surviving Company except to the
extent that such ownership existed prior to the
Business Combination; and
(C) at least a majority of the members of
the board of directors of Surviving Company were
members of the Incumbent Board at the earlier of the
date of execution of the initial agreement, or of the
action of the Southern Board, providing for such
Business Combination.
(iv) The Consummation of an acquisition by any Person
of Beneficial Ownership of 50% or more of the combined voting
power of the then outstanding Voting Securities of the
Company; provided, however, that for purposes of this
Paragraph 1.(e)(iv), any acquisition by Xx. Xxxxxx, any Group
composed exclusively of employees of the Company, any Group of
which Xx. Xxxxxx is a party, any qualified pension plan (or
related trust), any publicly held mutual fund, any employee
benefit plan (or related trust) sponsored or maintained by
Southern or any Southern Subsidiary shall not constitute a
Change in Control;
(v) Consummation of a reorganization, merger or
consolidation of the Company (an "Employing Company Business
Combination"), in each case, unless, following such Employing
Company Business Combination, Southern Controls the
corporation or other entity surviving or resulting from such
Employing Company Business Combination; or
(vi) Consummation of the sale or other disposition of
all or substantially all of the assets of the Company to a
corporation or other entity which Southern does not Control.
Notwithstanding the foregoing, in no event shall "Change in
Control" mean an initial public offering or a spin-off of
the Company.
(f) "COBRA Coverage" shall mean any continuation
coverage to which Xx. Xxxxxx or his dependents may be
entitled pursuant to Code Section 4980B.
(g) "Code" shall mean the Internal Revenue Code of
1986, as amended.
(h) "Company" shall mean Southern Company Services,
Inc., its successors and assigns.
(i) "Consummation" shall mean the completion of the
final act necessary to complete a transaction as a matter of
law, including, but not limited to, any required approvals
by the corporation's shareholders and board of directors,
the transfer of legal and beneficial title to securities or
assets and the final approval of the transaction by any
applicable domestic or foreign governments or governmental
agencies.
(j) "Control" shall mean, in the case of a corporation,
Beneficial Ownership of more than 50% of the combined voting
power of the corporation's Voting Securities, or in the case
of any other entity, Beneficial Ownership of more than 50%
of such entity's voting equity interests.
(k) "Effective Date" shall mean the date of execution
of this Agreement.
(l) "Employee Outplacement Program" shall mean the program
established by the Company from time to time for the purpose of assisting
participants covered by the plan in finding employment outside of the Company
which provides for the following services:
(i) self-assessment, career decision and goal
setting;
(ii) job market research and job sources;
(iii) networking and interviewing skills;
(iv) planning and implementation strategy;
(v) resume writing, job hunting methods and
salary negotiation; and
(vi) office support and job search resources.
(m) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(n) "Good Reason" shall mean, without Xx. Xxxxxx' express
written consent, after written notice to the Board, and after a thirty
(30) day opportunity for the Board to cure, the continuing occurrence
of any of the following events:
(i) Inconsistent Duties. A meaningful and detrimental
alteration in Xx. Xxxxxx' position or in the nature or
status of his responsibilities from those in effect
immediately prior to the Change in Control;
(ii) Reduced Salary. A reduction of five percent (5%)
or more by the Company in either of the following: (i) Xx.
Xxxxxx' annual base salary rate as in effect immediately prior
to the Change in Control (except for a less than ten percent
(10%), across-the-board annual base salary rate reduction
similarly affecting at least ninety-five percent (95%) of the
Executive Employees of the Company); or (ii) the sum of Xx.
Xxxxxx' annual base salary rate plus target bonus under the
PPP (except for a less than ten percent (10%),
across-the-board reduction of annual base salary rate plus
target bonus under the PPP similarly affecting at least
ninety-five percent (95%) of the Executive Employees of the
Company);
(iii) Pension and Compensation Plans. The failure by
the Company to continue in effect any pension or compensation
plan or agreement in which Xx. Xxxxxx participates or is a
party as of the date of the Change in Control or the
elimination of Xx. Xxxxxx' participation therein, (except for
across-the-board plan changes or terminations similarly
affecting at least ninety-five percent (95%) of the Executive
Employees of the Company). For purposes of this Paragraph
1.(n), a "pension plan or agreement" shall mean any written
arrangement executed by an authorized officer of the Company
which provides for payments upon retirement; and a
"compensation plan or arrangement" shall mean any written
arrangement executed by an authorized officer of the Company
which provides for periodic, non-discretionary compensatory
payments in the nature of bonuses.
(iv) Relocation. A change in Xx. Xxxxxx' work
location to a location more than fifty (50) miles from the
office where Xx. Xxxxxx is located at the time of the Change
in Control, unless such new work location is within fifty (50)
miles from Xx. Xxxxxx' principal place of residence at the
time of the Change in Control. The acceptance, if any, by Xx.
Xxxxxx of employment by the Company at a work location which
is outside the fifty mile radius set forth in this Paragraph
1.(n)(iv) shall not be a waiver of Xx. Xxxxxx' right to refuse
subsequent transfer by the Company to a location which is more
than fifty (50) miles from Xx. Xxxxxx' principal place of
residence at the time of the Change in Control, and such
subsequent unconsented transfer shall be "Good Reason" under
this Agreement; or
(v) Benefits and Perquisites. The taking of any
action by the Company which would directly or indirectly
materially reduce the benefits enjoyed by Xx. Xxxxxx under the
Company's retirement, life insurance, medical, health and
accident, disability, deferred compensation or savings plans
in which Xx. Xxxxxx was participating immediately prior to the
Change in Control; or the failure by the Company to provide
Xx. Xxxxxx with the number of paid vacation days to which Xx.
Xxxxxx is entitled on the basis of years of service with the
Company in accordance with the Company's normal vacation
policy in effect immediately prior to the Change in Control
(except for across-the-board plan or vacation policy changes
or plan terminations similarly affecting at least ninety-five
percent (95%) of the Executive Employees of the Company).
(vi) For purposes of this Paragraph 1.(n), the term
"Executive Employee" shall mean those employees of the Company
of Grade Level 10 or above.
(o) "Group" shall have the meaning set forth in Section
14(d) of the Exchange Act.
(p) "Group Health Plan" shall mean the group health plan
covering Xx. Xxxxxx, as such plan may be amended from time to time.
(q) "Group Life Insurance Plan" shall mean the group life
insurance program covering Xx. Xxxxxx, as such plan may be amended from
time to time.
(r) "Incumbent Board" shall mean those individuals who
constitute the Southern Board as of October 19, 1998 plus any
individual who shall become a director subsequent to such date whose
election or nomination for election by Southern's shareholders was
approved by a vote of at least 75% of the directors then comprising the
Incumbent Board. Notwithstanding the foregoing, no individual who shall
become a director of the Southern Board subsequent to October 19, 1998
whose initial assumption of office occurs as a result of an actual or
threatened election contest (within the meaning of Rule 14a-11 of the
Regulations promulgated under the Exchange Act) with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Southern Board shall be a member of the Incumbent Board.
(s) "Month of Service" shall mean any calendar month during
which Xx. Xxxxxx has worked at least one (1) hour or was on approved
leave of absence while in the employ of the Company or any affiliate or
subsidiary of Southern.
(t) "Omnibus Plan" shall mean the Southern Company Omnibus
Incentive Compensation Plan, and the Design and Administrative
Specifications duly adopted thereunder, [as in effect on the day before
the date of a Change in Control,] as may be amended from time to time.
(u) "Pension Plan" shall mean The Southern Company Pension
Plan, as such plan may be amended from time to time.
(v) "Performance Dividend Program" shall mean the Performance
Dividend Program under the Omnibus Plan or any replacement thereto, as
such plans may be amended from time to time.
(w) "Person" shall mean any individual, entity or group
within the meaning of Section 13(d)(3) or 14(d)(2) of Act.
(x) "Performance Pay Program" or "PPP" shall mean the
Performance Pay Program under the Omnibus Plan or any replacement
thereto, as such plans may be amended from time to time.
(y) "Southern" shall mean The Southern Company, its
successors and assigns.
(z) "Southern Board" shall mean the board of directors
of Southern.
(aa) "Southern Subsidiary" shall mean any corporation
or other entity Controlled by Southern.
(bb) "Termination for Cause" or "Cause" shall mean the
termination of Xx. Xxxxxx' employment by the Company upon
the occurrence of any of the following:
(i) The willful and continued failure by Xx. Xxxxxx
substantially to perform his duties with the Company (other
than any such failure resulting from Xx. Xxxxxx' Total
Disability or from Xx. Xxxxxx' retirement or any such actual
or anticipated failure resulting from termination by Xx.
Xxxxxx for Good Reason) after a written demand for substantial
performance is delivered to him by the Southern Board, which
demand specifically identifies the manner in which the
Southern Board believes that he has not substantially
performed his duties; or
(ii) The willful engaging by Xx. Xxxxxx in conduct
that is demonstrably and materially injurious to the Company,
monetarily or otherwise, including, but not limited to any of
the following:
(A) any willful act involving fraud or dishonesty in
the course of Xx. Xxxxxx' employment by the Company;
(B) the willful carrying out of any activity
or the making of any statement which would materially
prejudice or impair the good name and standing of the
Company, Southern or any Southern Subsidiary or would
bring the Company, Southern or any Southern
Subsidiary into contempt, ridicule or would
reasonably shock or offend any community in which the
Company, Southern or such Southern Subsidiary is
located;
(C) attendance at work in a state of
intoxication or otherwise being found in possession
at his workplace of any prohibited drug or substance,
possession of which would amount to a criminal
offense;
(D) violation of the Company's policies on
drug and alcohol usage, fitness for duty requirements
or similar policies as may exist from time to time as
adopted by the Company's safety officer;
(E) assault or other act of violence against any person
during the course of employment; or
(F) indictment of any felony or any misdemeanor
involving moral turpitude. No act or failure to act by Xx.
Xxxxxx shall be deemed "willful" unless done, or omitted to
be done, by Xx. Xxxxxx not in good faith and without
reasonable belief that his action or omission was in the
best interest of the Company.
Notwithstanding the foregoing, Xx. Xxxxxx shall not be deemed
to have been terminated for Cause unless and until there shall have
been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three quarters of the entire
membership of the Southern Board at a meeting of the Southern Board
called and held for such purpose (after reasonable notice to Xx. Xxxxxx
and an opportunity for him, together with counsel, to be heard before
the Southern Board), finding that, in the good faith opinion of the
Southern Board, Xx. Xxxxxx was guilty of conduct set forth above in
clause (i) or (ii) of this Paragraph 1.(bb) and specifying the
particulars thereof in detail.
(cc) "Termination Date" shall mean the date on which Xx.
Xxxxxx' employment with the Company is terminated; provided, however,
that solely for purposes of Paragraph 2.(c) hereof, the Termination
Date shall be the effective date of his retirement pursuant to the
terms of the Pension Plan.
(dd) "Total Disability" shall mean Xx. Xxxxxx' total
disability within the meaning of the Pension Plan.
(ee) "Voting Securities" shall mean the outstanding voting
securities of a corporation entitling the holder thereof to vote
generally in the election of such corporation's directors.
(ff) "Waiver and Release" shall mean the Waiver and
Release attached hereto as Exhibit A.
(gg) "Year of Service" shall mean Xx. Xxxxxx' Months of
Service divided by twelve (12) rounded to the nearest whole year,
rounding up if the remaining number of months is seven (7) or greater
and rounding down if the remaining number of months is less than seven
(7). If Xx. Xxxxxx has a break in his service with the Company, he will
receive credit under this Agreement for service prior to the break in
service only if the break in service is less than five years.
2. Severance Benefits.
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(a) Eligibility. Except as otherwise provided in this
Paragraph 2.(a), if Xx. Xxxxxx' employment is involuntarily terminated
by the Company at any time during the two year period following a
Change in Control for reasons other than Cause, or if Xx. Xxxxxx
voluntarily terminates his employment with the Company for Good Reason
at any time during the two year period following a Change in Control,
Xx. Xxxxxx shall be entitled to receive the benefits described in this
Agreement upon the Company's receipt of an effective Waiver and
Release. Notwithstanding anything to the contrary herein, Xx. Xxxxxx
shall not be eligible to receive benefits under this Agreement if Xx.
Xxxxxx:
(i) voluntarily terminates his employment with the
Company for other than Good Reason; (ii) has his employment
terminated by the Company for Cause;
(iii) accepts the transfer of his employment to
Southern, any Southern Subsidiary or any employer that
succeeds to all or substantially all of the assets of the
Company, Southern or any Southern Subsidiary;
(iv) refuses an offer of continued employment with
the Company, any Southern Subsidiary, or any employer that
succeeds to all or substantially all of the assets of the
Company, Southern, or any Southern Subsidiary under
circumstances where such refusal would not amount to Good
Reason for voluntary termination of employment; or
(v) elects to receive the benefits of any other
voluntary or involuntary severance or separation program, plan
or agreement maintained by the Company in lieu of benefits
under this Agreement; provided however, that the receipt of
benefits under the terms of any retention plan or agreement
shall not be deemed to be the receipt of severance or
separation benefits for purposes of this Agreement.
(b) Severance Benefits. If Xx. Xxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash
severance benefit in an amount equal to three times his Annual
Compensation (the "Severance Amount"). If any portion of the Severance
Amount constitutes an "excess parachute payment" (as such term is
defined under Code Section 280G ("Excess Parachute Payment")), the
Company shall pay to Xx. Xxxxxx an additional amount calculated by
determining the amount of tax under Code Section 4999 that he otherwise
would have paid on any Excess Parachute Payment with respect to the
Change in Control and dividing such amount by a decimal determined by
adding the tax rate under Code Section 4999 ("Excise Tax"), the
hospital insurance tax under Code Section 3101(b) ("HI Tax") and
federal and state income tax measured at the highest marginal rates
("Income Tax") and subtracting such result from the number one (1) (the
"280G Gross-up"); provided, however, that no 280G Gross-up shall be
paid unless the Severance Amount plus all other "parachute payments" to
Xx. Xxxxxx under Code Section 280G exceeds three (3) times Xx. Xxxxxx'
"base amount" (as such term is defined under Code Section 280G ("Base
Amount")) by ten percent (10%) or more; provided further, that if no
280G Gross-up is paid, the Severance Amount shall be capped at three
(3) times Xx. Xxxxxx' Base Amount, less all other "parachute payments"
(as such term is defined under Code Section 280G) received by Xx.
Xxxxxx, less one dollar (the "Capped Amount"), if the Capped Amount,
reduced by HI Tax and Income Tax, exceeds what otherwise would have
been the Severance Amount, reduced by HI Tax, Income Tax and Excise
Tax.
For purposes of this Paragraph 2.(b), whether any amount would
constitute an Excess Parachute Payment and any other calculations of
tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts,
e.g., Base Amount, Capped Amount, etc., shall be determined by the tax
department of the independent public accounting firm then responsible
for preparing Southern's consolidated federal income tax return, and
such calculations or determinations shall be binding upon the parties
hereto.
(c) Welfare Benefits. If Xx. Xxxxxx meets the
eligibility requirements of Paragraph 2.(a) hereof and is
not otherwise eligible to receive retiree medical and life
insurance benefits provided to certain retirees pursuant to
the terms of the Pension Plan, the Group Health Plan and the
Group Life Insurance Plan, he shall be entitled to the
benefits set forth in this Paragraph 2.(c).
(i) Xx. Xxxxxx shall be eligible to participate in
the Company's Group Health Plan, upon payment of both the
Company's and his monthly premium under such plan, for a
period of six (6) months for each of Xx. Xxxxxx' Years of
Service, not to exceed five (5) years. If Xx. Xxxxxx elects to
receive this extended medical coverage, he shall also be
entitled to elect coverage under the Group Health Plan for his
dependents who were participating in the Group Health Plan on
Xx. Xxxxxx' Termination Date (and for such other dependents as
may be entitled to coverage under the provisions of the Health
Insurance Portability and Accountability Act of 1996) for the
duration of Xx. Xxxxxx' extended medical coverage under this
Paragraph 2.(c)(i) to the extent such dependents remain
eligible for dependent coverage under the terms of the Group
Health Plan.
(A) The extended medical coverage afforded
to Xx. Xxxxxx pursuant to Paragraph 2.(c)(i), as well
as the premiums to be paid by Xx. Xxxxxx in
connection with such coverage shall be determined in
accordance with the terms of the Group Health Plan
and shall be subject to any changes in the terms and
conditions of the Group Health Plan as well as any
future increases in premiums under the Group Health
Plan. The premiums to be paid by Xx. Xxxxxx in
connection with this extended coverage shall be due
on the first day of each month; provided, however,
that if he fails to pay his premium within thirty
(30) days of its due date, such extended coverage
shall be terminated.
(B) Any Group Health Plan coverage provided
under Paragraph 2.(c)(i) shall be a part of and not
in addition to any COBRA Coverage which Xx. Xxxxxx or
his dependents may elect. In the event that Xx.
Xxxxxx or his dependents become eligible to be
covered, by virtue of re-employment or otherwise, by
any employer-sponsored group health plan or is
eligible for coverage under any government-sponsored
health plan during the above period, coverage under
the Company's Group Health Plan available to Xx.
Xxxxxx or his dependents by virtue of the provisions
of Paragraph 2.(c)(i) shall terminate, except as may
otherwise be required by law, and shall not be
renewed.
(ii) Xx. Xxxxxx shall be entitled to receive cash in
an amount equal to the Company's and Xx. Xxxxxx' cost of
premiums for three (3) years of coverage under the Group
Health Plan and Group Life Insurance Plan in accordance with
the terms of such plans as of the date of the Change in
Control.
(d) Incentive Plans. If Xx. Xxxxxx meets the
eligibility requirements of Paragraph 2.(a) hereof he shall
be entitled to the following benefits under the Omnibus
Plan:
(i) Stock Options.
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(A) Any of Xx. Xxxxxx' Options and Stock
Appreciation Rights under the Omnibus Plan (the
defined terms of which are incorporated in this
Paragraph 2.(d)(i) by reference) which are
outstanding as of the Termination Date and which are
not then exercisable and vested, shall become fully
exercisable and vested to the full extent of the
original grant; provided, that in the case of a Stock
Appreciation Right, if Xx. Xxxxxx is subject to
Section 16(b) of the Exchange Act, such Stock
Appreciation Right shall not become fully vested and
exercisable at such time if such actions would result
in liability to Xx. Xxxxxx under Section 16(b) of the
Exchange Act, provided further, that any such actions
not taken as a result of the rules under Section
16(b) of the Exchange Act shall be effected as of the
first date that such activity would no longer result
in liability under Section 16(b) of the Exchange Act.
(B) The restrictions and deferral
limitations applicable to any of Xx. Xxxxxx'
Restricted Stock and Restricted Stock Units as of the
Termination Date shall lapse, and such Restricted
Stock and Restricted Stock Units shall become free of
all restrictions and limitations and become fully
vested and transferable to the full extent of the
original grant.
(ii) Performance Pay Program. Provided Xx. Xxxxxx is
not entitled to a Cash-Based Award under the PPP, (the defined
terms of which are incorporated in this Paragraph 2.(d)(ii) by
reference), if the PPP is in place through Xx. Xxxxxx'
Termination Date and to the extent Xx. Xxxxxx is entitled to
participate therein, Xx. Xxxxxx shall be entitled to receive
cash in an amount equal to a prorated payout of his Cash-Based
Awards under the PPP for the performance period in which the
Termination Date shall have occurred, at target performance
under the PPP and prorated by the number of months which have
passed since the beginning of the performance period until the
Termination Date.
(iii) Performance Dividend Program. Provided Xx.
Xxxxxx is not entitled to a Cash-Based Award under the
Performance Dividend Program (the defined terms of which are
incorporated in this Paragraph 2.(d)(iii) by reference), if
the Performance Dividend Program is in place through Xx.
Xxxxxx' Termination Date and to the extent Xx. Xxxxxx is
entitled to participate therein, Xx. Xxxxxx shall be entitled
to receive cash for each such Cash-Based Award under the
Performance Dividend Program held by Xx. Xxxxxx on his
Termination Date, based on actual performance under the
Performance Dividend Program determined as of the most
recently completed calendar quarter of the performance period
in which the Termination Date shall have occurred, and the
annual dividend declared prior to the Termination Date.
(iv) Other Short Term Incentives Under the Omnibus
Plan. Provided Xx. Xxxxxx is not entitled to a Performance
Unit/Share award under the Omnibus Plan (the defined terms of
which are incorporated in this Paragraph 2.(d)(iv) by
reference), Xx. Xxxxxx shall be entitled to receive cash in an
amount equal to a prorated payout of the value of his
Performance Units and/or Performance Shares for the
performance period in which the Termination Date shall have
occurred, at target performance and prorated by the number of
months which have passed since the beginning of the
performance period until the Termination Date.
(v) Other Short Term Incentive Plans. The provisions
of this Paragraph 2.(d)(v) shall apply if and to the extent
that Xx. Xxxxxx is a participant in any other "short term
compensation plan" not otherwise previously referred to in
this Paragraph 2.(d). Provided Xx. Xxxxxx is not otherwise
entitled to a plan payout under any change of control
provisions of such plans, if the "short term compensation
plan" is in place as of the Termination Date and to the extent
Xx. Xxxxxx is entitled to participate therein, Xx. Xxxxxx
shall receive cash in an amount equal to his award under the
Company's "short term incentive plan" for the annual
performance period in which the Termination Date shall have
occurred, at Xx. Xxxxxx' target performance level and prorated
by the number of months which have passed since the beginning
of the annual performance period until his Termination Date.
For purposes of this Paragraph 2.(d)(v) the term "short term
incentive compensation plan" shall mean any incentive
compensation plan or arrangement adopted in writing by the
Company which provides for annual, recurring compensatory
bonuses based upon articulated performance criteria.
(e) Payment of Benefits. Any amounts due under this Agreement
shall be paid in one (1) lump sum payment as soon as administratively
practicable following the later of: (i) Xx. Xxxxxx' Termination Date,
or (ii) upon Xx. Xxxxxx' tender of an effective Waiver and Release to
the Company in the form of Exhibit A attached hereto and the expiration
of any applicable revocation period for such waiver. In the event of a
dispute with respect to liability or amount of any benefit due
hereunder, an effective Waiver and Release shall be tendered at the
time of final resolution of any such dispute when payment is tendered
by the Company.
(f) Benefits in the Event of Death. In the event of Xx.
Xxxxxx' death prior to the payment of all amounts due under this
Agreement, Xx. Xxxxxx' estate shall be entitled to receive as due any
amounts not yet paid under this Agreement upon the tender by the
executor or administrator of the estate of an effective Waiver and
Release.
(g) Legal Fees. In the event of a dispute between Xx. Xxxxxx
and the Company with regard to any amounts due hereunder, if any
material issue in such dispute is finally resolved in Xx. Xxxxxx'
favor, the Company shall reimburse Xx. Xxxxxx' legal fees incurred with
respect to all issues in such dispute in an amount not to exceed fifty
thousand dollars ($50,000).
(h) Employee Outplacement Services. Xx. Xxxxxx shall be
eligible to participate in the Employee Outplacement
Program, which program shall not be less than six (6) months
duration measured from Xx. Xxxxxx' Termination Date.
(i) Non-qualified Retirement and Deferred Compensation Plans.
The Parties agree that subsequent to a Change in Control, any claims by
Xx. Xxxxxx for benefits under any of the Company's non-qualified
retirement or deferred compensation plans shall be resolved through
binding arbitration in accordance with the provisions and procedures
set forth in Paragraph 5 hereof and if any material issue in such
dispute is finally resolved in Xx. Xxxxxx' favor, the Company shall
reimburse Xx. Xxxxxx' legal fees in the manner provided in Paragraph
2.(g) hereof.
3. Transfer of Employment. In the event that Xx. Xxxxxx' employment by
the Company is terminated during the two year period following a Change in
Control and Xx. Xxxxxx accepts employment by Southern, a Southern Subsidiary, or
any employer that succeeds to all or substantially all of the assets of the
Company, Southern or any Southern Subsidiary, the Company shall assign this
Agreement to Southern, such Southern Subsidiary, or successor employer, Southern
shall accept such assignment or cause such Southern Subsidiary or successor
employer to accept such assignment, and such assignee shall become the "Company"
for all purposes hereunder.
4. No Mitigation. If Xx. Xxxxxx is otherwise eligible to receive
benefits under Paragraph 2 of this Agreement, he shall have no duty or
obligation to seek other employment following his Termination Date and,
except as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts
due Xx. Xxxxxx hereunder shall not be reduced or suspended if Xx. Xxxxxx
accepts such subsequent employment.
5. Arbitration.
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(a) Any dispute, controversy or claim arising out of or relating to
the Company's obligations to pay severance benefits under this Agreement,
or the breach thereof, shall be settled and resolved solely by arbitration
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") except as otherwise provided herein. The
arbitration shall be the sole and exclusive forum for resolution of any
such claim for severance benefits and the arbitrators' award shall be final
and binding. The provisions of this Paragraph 5 are not intended to apply
to any other disputes, claims or controversies arising out of or relating
to Xx. Xxxxxx' employment by the Company or the termination thereof.
(b) Arbitration shall be initiated by serving a written notice of
demand for arbitration to Xx. Xxxxxx, in the case of the Company, or to the
Southern Board, in the case of Xx. Xxxxxx.
(c) The arbitration shall be held in Atlanta, Georgia. The arbitrators
shall apply the law of the State of Georgia, to the extent not preempted by
federal law, excluding any law which would require the application of the
law of another state.
(d) The parties shall appoint arbitrators within fifteen (15) business
days following service of the demand for arbitration. The number of
arbitrators shall be three. One arbitrator shall be appointed by Xx.
Xxxxxx, one arbitrator shall be appointed by the Company, and the two
arbitrators shall appoint a third. If the arbitrators cannot agree on a
third arbitrator within thirty (30) business days after the service of
demand for arbitration, the third arbitrator shall be selected by the AAA.
(e) The arbitration filing fee shall be paid by Xx. Xxxxxx. All other
costs of arbitration shall be borne equally by Xx. Xxxxxx and the Company,
provided, however, that the Company shall reimburse such fees and costs in
the event any material issue in such dispute is finally resolved in Xx.
Xxxxxx' favor and Xx. Xxxxxx is reimbursed legal fees under Paragraph 2.(g)
hereof.
(f) The parties agree that they will faithfully observe the rules that
govern any arbitration between them, they will abide by and perform any
award rendered by the arbitrators in any such arbitration, including any
award of injunctive relief, and a judgment of a court having jurisdiction
may be entered upon an award.
(g) The parties agree that nothing in this Paragraph 5 is intended to
preclude upon application of either party any court having jurisdiction
from issuing and enforcing in any lawful manner such temporary restraining
orders, preliminary injunctions, and other interim measures of relief as
may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant
to this Agreement; regardless of whether an arbitration proceeding under
this Paragraph 5 has begun. The parties further agree that nothing herein
shall prevent any court from entering and enforcing in any lawful manner
such judgments for permanent equitable relief as may be necessary to
prevent harm to a party's interests or as otherwise may be appropriate
following the issuance of arbitral awards pursuant to this Paragraph 5.
6. Miscellaneous.
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(a) Funding of Benefits. Unless the Board in its discretion
shall determine otherwise, the benefits payable to Xx. Xxxxxx under
this Agreement shall not be funded in any manner and shall be paid by
the Company out of its general assets, which assets are subject to the
claims of the Company's creditors.
(b) Withholding. There shall be deducted from the payment of any
benefit due 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 Xx. Xxxxxx.
(c) Assignment. Xx. Xxxxxx shall have no rights to sell, assign,
transfer, encumber, or otherwise convey the right to receive the payment of
any benefit due hereunder, which payment and the rights thereto are
expressly declared to be nonassignable and nontransferable. Any attempt to
do so shall be null and void and of no effect.
(d) Amendment and Termination. The Agreement may be amended or
terminated only by a writing executed by the parties.
(e) Construction. This Agreement shall be construed in
accordance with and governed by the laws of the State of Georgia, to
the extent not preempted by federal law, disregarding any provision of
law which would require the application of the law of another state.
(f) Pooling Accounting. Notwithstanding anything to the
contrary herein, if, but for any provision of this Agreement, a Change
in Control transaction would otherwise be accounted for as a
pooling-of-interests under XXX Xx.00 ("Pooling Accounting") (after
giving effect to any and all other facts and circumstances affecting
whether such Change in Control transaction would use Pooling
Accounting), such provision or provisions of this Agreement which would
otherwise cause the Change in Control transaction to be ineligible for
Pooling Accounting shall be void and ineffective in such a manner and
to the extent that by eliminating such provision or provisions of this
Agreement, Pooling Accounting would be required for such Change in
Control transaction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this ____ day of __________________, 2002.
THE SOUTHERN COMPANY
By: ____________________________________
SOUTHERN COMPANY SERVICES, INC.
By: ____________________________________
XX. XXXXXX
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XXXXXXX XXXX XXXXXX
