Exhibit 10(d)30
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered into by
and between GULF POWER COMPANY (the "Company") and XXXXXX XXXXXXX XXXXXX
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
twenty-six (26) years; WHEREAS, Employee is a highly compensated employee of the
Company and is a member of its management; WHEREAS, in order to be eligible for
benefits under this Agreement, the parties have agreed that Employee will
terminate employment with the Company on June 1, 2002;
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 compensate Employee 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 June 1, 2002 (the Employee's "Termination Date"), and
effectiveness of the Release attached hereto as Exhibit 1 (such effectiveness
being no earlier than Employee's Termination Date), the Company agrees to pay to
Employee or his spouse or his estate, as applicable, the amounts described in
Paragraph 2 hereof. Employee covenants and agrees that the consideration set
forth in Paragraph 2 is in full satisfaction of all sums owed to Employee, if
any, by the Company, and constitutes good and complete consideration for his
Release attached hereto as Exhibit 1, those non-disclosure and non-interference
obligations under Paragraphs 5, 6, 7, 8 and 9 hereof and all other obligations
and covenants of Employee contained herein, including, but not limited to,
Paragraph 4. Employee agrees that this Agreement provides him certain benefits
to which he would not otherwise be entitled.
2. Payments to Employee.
(a) As soon as practicable following the effective date of the Release attached
hereto as Exhibit 1 (such effective date being no earlier than Employee's
Termination Date), the Company shall commence payment to Employee of five (5)
annual installments in an amount equal to Two Hundred Twenty-Seven Thousand Five
Hundred Sixty Dollars and No Cents ($227,560.00) per annual installment payment.
In the event of a Southern Change in Control or a Subsidiary Change in Control
affecting Employee as defined in the Southern Company Change in Control Benefit
Plan Determination Policy, any unpaid amounts shall be paid in a lump sum as
soon as practicable after the occurrence of such an event. The lump sum shall be
equal to the present value of any unpaid amounts based on an effective interest
rate of 7.5% per annum (0.6045% per month). In the event Employee dies before
receiving payment of the amounts described in this Paragraph 2(a) hereof, such
amounts shall be paid to Employee's spouse, if living, or if not, to the
Employee's estate. In accordance with Paragraph 20, Employee shall be
responsible for all state and federal income taxes and his share of FICA taxes
owed on the foregoing amounts, and Company shall make appropriate withholding of
these amounts.
(b) Notwithstanding the foregoing, in the event Employee engages in Misconduct,
as defined below, before or after Employee's Termination Date but prior to
receiving the payments described in Paragraph 2(a) above, Company may not make
the payments to Employee under this Paragraph 2, and Company shall have no
further obligations with respect to any amounts under this Agreement. For
purposes of this Paragraph 2(b), "Misconduct" shall mean (i) the final
conviction of any felony, or (ii) the carrying out of any activity or the making
of any public statement which materially diminishes or materially and
untruthfully brings Southern into contempt, ridicule or materially and
reasonably shocks or offends the community in which the Southern affiliate is
located.
3. Publicity; No Disparaging Statement.
Except as otherwise provided in Paragraph 13 hereof, Employee and the Company
covenant and agree that they shall not engage in any communications which shall
disparage one another or interfere with their existing or prospective business
relationships.
4. No Employment. Employee agrees that he shall not seek re-employment as an
employee or independent contractor with the Company or The Southern Company or
any of its subsidiaries or affiliates (collectively, for purposes of this
Paragraph 4, "The Southern Company System"), for a period of twenty-four (24)
months following the execution of the Release attached hereto as Exhibit 1. The
Company or any member of The Southern Company System shall not rehire the
Employee as an employee or independent contractor for a period of twenty-four
(24) months following the Employee's execution of the Release attached hereto as
Exhibit 1, unless an exceptional business reason exists for rehiring the
Employee and a committee, comprised of (i) an officer from the business unit
seeking to rehire the Employee and (ii) the Southern Company Vice President,
Employee Relations & Associate General Counsel, approves of such rehiring.
5. Business Protection Provision Definitions.
(a) Preamble. As a material inducement to the Company to enter into this
Agreement, and its recognition of the valuable experience, knowledge and
proprietary information Employee gained from his employment with the
Company, Employee warrants and agrees he will abide by and adhere to the
following business protection provisions in Xxxxxxxxxx 0, 0, 0, 0 xxx 0
xxxxxx.
(x) Definitions. For purposes of Paragraphs 5, 6, 7, 8 and 9 herein, the
following terms shall have the following meanings:
(i) "Competitive Position" shall mean any employment, consulting,
advisory, directorship, agency, promotional or independent contractor
arrangement between the Employee and any person or Entity engaged
wholly or in material part in the business that the Company is engaged
in (the "Business") whereby the Employee 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 Employee
participated in or directed while employed by the Company, The
Southern Company or any of their respective affiliates (collectively
the "Southern Entities").
(ii) "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 or
other 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 Employee related to or
regarding any proceedings involving or related to the Southern
Affiliates before the Florida Public Service Commission or other
Entities.
(iii) "Entity" or "Entities" 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.
(iv) "Territory" shall include the States of Georgia, Alabama, Mississippi
or Florida.
(v) "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. The Employee 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.
(vi) "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 Employee during the term of his employment with the
Company.
6. Nondisclosure: Ownership of Proprietary Property.
(a) In recognition of the need of the Company to protect its legitimate
business interests, Confidential Information and Trade Secrets, Employee
hereby covenants and agrees that 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: (i) with regard to each item
constituting a Trade Secret, at all times such information remains a "trade
secret" under applicable law, and (ii) with regard to any Confidential
Information, for a period of three (3) years following the Termination Date
(hereafter the "Restricted Period").
(b) Employee shall exercise best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information, and he
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
protection of or procurement of any intellectual property protection or
other rights in any of the Trade Secrets or Confidential Information.
(c) 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. ss. 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 (and the
goodwill associated therewith), trade secrets, service marks (and the
goodwill associated therewith) 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 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 the Company.
(d) Employee represents and agrees that he will keep all terms and provisions
of this Agreement completely confidential, except for possible disclosures
to his legal advisors or to the extent required by law, and Employee
further agrees that he will not disclose the terms, provisions or
information contained in or concerning this Agreement to anyone, including,
but not limited to, any past, present, or prospective employee or applicant
for employment with the Company. Employee agrees that he may only disclose
to future, potential employers of Employee that he participates in a
Deferred Compensation Agreement with the Company which imposes certain
restrictions on him.
7. Non-Interference With Employees.
Employee covenants and agrees that during the Restricted Period he will
not, either directly or indirectly, alone or in conjunction with any other
person or Entity: (A) actively recruit, solicit, attempt to solicit, or induce
any person who, during such Restricted Period, or within one year prior to the
Termination Date, was an exempt employee of the Company or any of its
subsidiaries, or was an officer of any of the other Southern Entities to leave
or cease such employment for any reason whatsoever; or (B) hire or engage the
services of any such person described in Paragraph 7(A) in any business
substantially similar or competitive with that in which the Southern Entities
were engaged during his employment.
8. Non-Interference With Customers.
(a) 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:
(b) Employee covenants and agrees that for a period of two (2) years following
the Termination Date, he will not, on his own behalf or on behalf of any person
or Entity, solicit, direct, appropriate, 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.
9. Non-Interference With Business.
(a) Employee 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 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. The Employee further acknowledges that the payments described in
Paragraph 2 are also in consideration of his covenants and agreements contained
in Paragraphs 5 through 9 hereof. (b) Employee covenants and agrees to not
obtain or work in a Competitive Position within the Territory for a period of
two (2) years from the Termination Date.
10. 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 originals,
copies and abstracts containing any Work Product, intellectual property,
Confidential Information and Trade Secrets in Employee's possession or control.
11. 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.
12. Termination with Cause. In the event of Employee's termination of employment
for Cause at any time, the Employee shall forfeit the entire benefit provided in
Paragraph 2 and the Company shall have no further obligations with respect to
any amount under this Agreement. As used in this Agreement, the term "Cause"
shall mean gross negligence or willful misconduct in the performance of the
duties and services required in the course of employment by the Company; the
final conviction of a felony or misdemeanor involving moral turpitude; the
carrying out of any activity or the making of any statement which would
prejudice the good name and standing of any of the Southern Entities or would
bring any of the Southern Entities into contempt, ridicule or would reasonably
shock or offend any community in which any of the Southern Entities is located;
a material breach of the fiduciary obligations owed by an officer and an
employee to any of the Southern Entities; or the Employee's unsatisfactory
performance of the duties and services required by his or her employment.
13. 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.
14. 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 the Company and its 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 Florida, United States of America
(without giving effect to principles of conflicts of laws).
15. 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.
16. 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.
Employee acknowledges and agrees that the covenants and agreements contained in
this Agreement, including, without limitation, the covenants and agreements
contained in Xxxxxxxxxx 0, 0, 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 Employee
against Company, whether predicted upon this Agreement or any other contract,
shall not constitute a defense to the enforcement by Company of said covenants
and agreements.
17. Waiver Of Breach; Specific Performance. The waiver of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other breach. Each of the parties to this Agreement will be entitled to enforce
its or his rights under this Agreement, specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its or his favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its or his sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
18. 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 amounts may be paid shall at all times be subject to the claims of
the Company's creditors.
19. 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.
20. Tax Withholding. There shall be deducted from the payments 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.
21. Compensation. Any compensation paid 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. The payments under this Agreement shall not be considered
wages, salaries or compensation under any other employee benefit plan.
22. 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.
23. Interpretation. The judicial body interpreting this Agreement shall not more
strictly construe the terms of this Agreement against one party, it being agreed
that both parties and/or their attorneys or agents have negotiated and
participated in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, this
___ day of ________________, 2002.
"COMPANY"
GULF POWER COMPANY
By:
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Its:
"EMPLOYEE"
XXXXXX XXXXXXX XXXXXX
EXHIBIT 1 to
Deferred Compensation Agreement
with Xxxxxx Xxxxxxx Xxxxxx
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between XXXXXX
XXXXXXX XXXXXX ("Employee") and GULF POWER COMPANY, and its successor or assigns
("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Gulf Power Company shall terminate on June 1, 2002;
WHEREAS, Employee and the Company have previously entered into that
certain Deferred Compensation Agreement, dated _________________, 2002
("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 compensate Employee 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 its 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. Compensation. In accordance with the Deferred Compensation Agreement, the
Company agrees to pay the Employee, his spouse or his estate, as the case may
be, the amounts provided in Paragraph 2 of the Agreement. 4. No Admission Of
Liability. This Release shall not in any way be construed as an admission by the
Company or Employee of any improper actions or liability whatsoever as to one
another, and each specifically disclaims any liability to or improper actions
against the other or any other person, on the part of itself or himself, its or
his employees or agents.
5. Voluntary Execution. Employee warrants, represents and agrees that he has
been encouraged in writing to seek advice from anyone of his choosing regarding
this Release, including his attorney and accountant or tax advisor prior to his
signing it; that this Release represents written notice to do so; that he has
been given the opportunity and sufficient time to seek such advice; and that he
fully understands the meaning and contents of this Release. He further
represents and warrants that he was not coerced, threatened or otherwise forced
to sign this Release, and that his signature appearing hereinafter is voluntary
and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE (21) DAYS TO
CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS RELEASE. 6. Ability to
Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE THIS RELEASE BY
NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN (7) DAYS OF HIS
EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE UNTIL THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS THAT UPON THE EXPIRATION
OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON HIM AND HIS
HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND ASSIGNS AND
WILL BE IRREVOCABLE.
Acknowledged and Agreed To:
"COMPANY"
GULF POWER COMPANY
By:
--------------------------
Its:
--------------------------
I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE. I
UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE.
"EMPLOYEE"
XXXXXX XXXXXXX XXXXXX
------------------------------------ -----------------------------------
Date_____
WITNESSED BY:
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