Exhibit 10(e)28
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this 5th day of December, 2003 by and between MISSISSIPPI POWER COMPANY
("Company"), and XXXXX X. XXXXXXXXX, III ("Contractor").
BACKGROUND:
Company desires to retain Contractor to provide certain services to
Company, and Contractor desires to provide such services to Company, all subject
to the terms and conditions set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premise, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Services. Subject to the terms and conditions set forth in this
Agreement, Company hereby retains Contractor to provide to Company the services
more particularly described on Exhibit A attached hereto (the "Services"), and
Contractor agrees to render the Services to Company.
2. Obligations of Contractor. In its performance of the Services
hereunder, Contractor shall at all times comply with and abide by the terms and
conditions set forth in this Agreement. Contractor shall further perform the
Services in accordance with all applicable laws, rules and regulations and by
following and applying the highest professional guidelines and standards.
Contractor must obtain prior written approval from Company before Contractor
contracts with or in any other way employs any agents or subcontractors to
perform work in any way related to this Agreement. Contractor 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, Contractor 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 knowingly assist, in
any way, a competitor of Company.
3. Compensation.
(a) Subject to the terms and conditions set forth in this Agreement,
and as full and complete compensation for the Services, Company shall pay to
Contractor, and Contractor shall accept the fees calculated in accordance with
Exhibit B attached hereto ("Fees").
(b) Contractor hereby acknowledges and agrees that Contractor shall be
solely and exclusively responsible and liable for withholding taxes, social
security taxes, unemployment taxes, sales/use taxes and workers' compensation
insurance premiums.
4. Independent Contractor. In the performance of this Agreement, both
Contractor and Company will be acting in their own separate capacities and not
as agents, employees, partners, joint venturers or associates of one another. It
is expressly understood and agreed that Contractor is an independent contractor
of Company in all manners and respects. The parties further agree that:
(a) Contractor and its agents, employees and subcontractors are not
authorized to bind Company to any liability or obligation or to represent that
they have any such authority.
(b) Contractor shall be solely and exclusively responsible and liable
for all expenses, costs, liabilities, assessments, taxes, maintenance,
insurance, undertakings and other obligations incurred by Contractor and 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 Contractor
(including, but not limited to, the taxes and insurance premiums described in
Section 3(b), above).
(c) Contractor shall be solely and exclusively responsible for
obtaining and providing (at Contractor's own cost) whatever computer, training,
software or other equipment Contractor believes is necessary to complete the
Services required under this Agreement.
(d) Contractor shall complete the Services required under this
Agreement according to Contractor's own means and methods of work which shall be
in the exclusive charge and control of Contractor and which shall not be subject
to the control or supervision of Company, except as to the results of the work.
Contractor shall determine Contractor's own working hours and schedule for
itself and its agents, employees and subcontractors.
(e) Contractor shall not be subject to Company's personnel policies and
procedures except for Company's Code of Ethics. Contractor also shall not be
eligible to receive any employee benefits or participate in any employee benefit
plan sponsored by Company as a result of performing services under this
Agreement, 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.
(f) Contractor hereby waives and relinquishes any right of subrogation
it might have against Company under the provisions of the Workers' Compensation
Act of Mississippi 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.
Contractor 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.
5. Business Protection Provision Definitions. For purposes of this
Agreement, the following terms shall have the following respective 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 Company, the Southern
Company 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 Contractor, its agents and employees related to or regarding any proceedings
involving or related to the Southern Entities before the Mississippi 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) derive 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. Contractor 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 Contractor for 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 Contractor 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 7 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.
6. Nondisclosure: Ownership of Proprietary Property.
(a) Nondisclosure. In recognition of the need of Company to protect its
legitimate business interests, Contractor hereby covenants and agrees that
Contractor, 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 Section 6(a) hereof,
Contractor 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 Contractor to perform its
obligations under this Agreement. Contractor 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. Contractor shall remain
responsible for every person to whom it provides Trade Secrets or Confidential
Information.
(c) Notification of Unauthorized Disclosure. Contractor 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 Contractor, whether in connection with
this Agreement or any other past or present relationship with Company or any of
the Southern Entities. Contractor shall immediately notify Company of any
unauthorized disclosure or use of any Trade Secrets or Confidential Information
of which Contractor becomes aware. Contractor 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 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 Contractor 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 Contractor 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. Contractor 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 this
Agreement, or at any point prior to or after that time upon the specific request
of Company, Contractor 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
Contractor's or such persons' possession or control.
(f) Public Statements and Press Releases. Company shall issue all
public statements concerning the work hereunder. Neither Contractor 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 Company.
7. Non-Interference with Employees, Customers and Business.
(a) Contractor 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 Contractor, 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; or (iv) seek or accept a Competitive Position with
a Customer. In addition, Contractor 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. Contractor
agrees to require each of its agents, employees and subcontractors who will
perform services pursuant to this Agreement for a Customer to execute an
agreement regarding non-interference with employees, customers and business in a
form reasonably acceptable to Company and shall use its best efforts to cause
such persons to comply with such agreement.
(b) Contractor 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 Contractor 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 Contractor participated in or directed for the Company, the Southern
Company or any of their respective affiliates during the Term (as defined in
Paragraph 9(a)) of this Agreement.
(c) Contractor 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
Contractor'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.
8. Remedies. The parties represent and agree that any disclosure or use
of any Trade Secrets or Confidential Information by Contractor, its agents,
employees or subcontractors except as otherwise authorized by Company in
writing, or any other violation of Sections 5, 6, and 7, 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 Contractor breach or threaten to breach any provision
of Sections 5, 6 and 7, 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
Contractor'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.
9. Term and Termination.
(a) The term of this Agreement shall be for a period of no more than
four (4) months, commencing on the later of January 1, 2004 or the date on which
the Release Agreement is effective and expiring on May 1, 2004 ("Term"), unless
the Agreement is terminated prior to the expiration of the Term pursuant to
Paragraph 9(b), (c), or (e) below.
(b) Notwithstanding Paragraph 9(a), either party may terminate this
Agreement at any time by providing fourteen (14) days advance written notice of
termination to the other party hereto. If either Company or Contractor
terminates this Agreement pursuant to this Paragraph 9(b), Contractor shall be
entitled to his Pro Rata Compensation (as defined in Paragraph 9(d)) through the
date of termination of this Agreement and Contractor shall be obligated to
return to Company any Fees which may have been paid to Contractor and that are
unearned on the date of termination. The Company shall have no further
obligations with respect to the payment of any compensation under this Agreement
after Contractor's termination.
(c) Notwithstanding Paragraphs 9(a) and (b), Company may immediately
terminate the Agreement at any time for Cause (as defined in Paragraph 9(d)). In
this case, Contractor shall be entitled only to his Pro Rata Compensation (as
defined in Paragraph 9(d)) through the date of the termination of this Agreement
and Contractor shall be obligated to return to Company any Fees which may have
been paid to Contractor and that are unearned on the date of termination. The
Company shall have no further obligations with respect to the payment of any
compensation under this Agreement after Contractor's termination.
(d) "Pro Rata Compensation" shall mean the sum of any (i) Fees paid to
Contractor for months during the Term prior to the month in which the
termination occurs, and (ii) the Fee set forth in Exhibit A attached hereto for
the month in which the termination occurs multiplied by a fraction, the
numerator of which is the days expired within such month and the denominator of
which is the number of days in the month.
"Cause" or "Termination for Cause" shall include the following
conditions:
1. Failure to Discharge Duties. Contractor 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. Contractor shall have committed any material breach or
repeated or continued (after written warning) any breach of his obligations
hereunder;
3. Gross Misconduct. The Contractor 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 employment; or (v)
Conviction of any felony or misdemeanor involving moral turpitude. (e) If
Contractor dies during the Term of this Agreement, the Agreement shall
terminate, and Company shall pay the Contractor's Pro Rata Compensation through
the date of death to Contractor's spouse, if living, or if not, to his estate.
The Company shall have no further obligations with respect to the payment of any
compensation under this Agreement after Contractor's death.
10. Indemnification. Contractor hereby indemnifies and agrees to defend
and hold harmless Company and its employees, officers, directors, agents,
affiliates and independent contractors from and against any and all damages,
losses, costs (including, without limitation, court costs and attorneys' fees),
settlements, suits, actions, expenses, liabilities and claims of any kind (each
a "Loss") caused by or resulting from any breach of this Agreement by Contractor
or any other act or omission of Contractor.
11. Notices.
(a) All notices provided for or required by this Agreement shall be in
writing and shall be delivered personally to the other designated party, or
mailed by certified or registered mail, return receipt requested, or delivered
by a recognized international courier service, as follows:
If to Company: Mississippi Power Company
Attention: Xxxxxx Xxxxxxxxxx
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to Contractor: Xx. Xxxxx X. Xxxxxxxxx, III
00 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(b) All notices provided for or required by this Agreement shall be
effective when delivered or on the third date following the date upon which such
notice is deposited, postage prepaid, in the mail pursuant to Section 11(a)
above.
(c) Either party hereto may change the address to which notice is to be
sent by written notice to the other party in accordance with the provisions of
this Section 11.
12. Miscellaneous.
(a) This Agreement, including all Exhibits hereto (which are
incorporated herein by this reference), contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
No waiver, termination or discharge of this Agreement, or any of the terms or
provisions hereof, shall be binding upon either party hereto unless confirmed in
writing. This Agreement may not be modified or amended, except by a writing
executed by both parties hereto. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's rights thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Mississippi, United States of America, without
giving effect to conflicts of law provisions.
(c) Contractor may not assign this Agreement, in whole or in part,
without the prior written consent of Company, and any attempted assignment not
in accordance herewith shall be null and void and of no force or effect.
(d) This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(e) The headings contained herein are for the convenience of the
parties only and shall not be interpreted to limit or affect in any way the
meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute the same Agreement. Any signature page of any such counterpart, or
any electronic facsimile thereof, may be attached or appended to any other
counterpart to complete a fully executed counterpart of this Agreement, and any
facsimile transmission of any signature shall be deemed an original and shall
bind such party.
(g) If any provision of this Agreement shall be held void, voidable,
invalid or inoperative, no other provision of this Agreement shall be affected
as a result thereof, and accordingly, the remaining provisions of this Agreement
shall remain in full force and effect as though such void, voidable, invalid or
inoperative provision had not been contained herein.
(h) This Agreement shall not be construed more strongly against either
party hereto regardless of which party is responsible for its preparation.
(i) Upon the reasonable request of the other party, each party hereto
agrees to take any and all actions, including, without limitation, the execution
of certificates, documents or instruments, necessary or appropriate to give
effect to the terms and conditions set forth in this Agreement.
(j) Notwithstanding any expiration or termination of this Agreement,
the provisions of Sections 5, 6, 7, 8, and 10 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.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representatives to execute, this Agreement as of the day and year
first above written.
"COMPANY"
MISSISSIPPI POWER COMPANY
By:/s/Xxxx Xxxxxxx
Title: President & CEO
"CONTRACTOR"
XXXXX X. XXXXXXXXX, III
/s/H. E. Xxxxxxxxx, III
EXHIBIT A TO CONSULTING AGREEMENT
Services
Contractor shall manage, perform and provide professional consulting
services and advice, including, but not limited to, assisting with case
preparation and preparing for and providing testimony in any rate case brought
before the Mississippi Public Service Commission during the Term ("Services").
EXHIBIT B TO CONSULTING AGREEMENT
Compensation and Expense Reimbursement
On the business day coinciding with or immediately following each of
February 1, 2004, March 1, 2004, April 1, 2004 and May 1, 2004, the Company
shall pay to Contractor a fee equal to Five Thousand Dollars and No Cents
($5,000.00) ("Fee"), as consideration for the Services provided by Contractor
during the immediately preceding month through the date of payment pursuant to
Section 1 of the Agreement. Contractor shall be reimbursed by the Company, upon
remittance of receipts to the Company, for reasonable expenses incurred while
conducting work as an independent contractor under this Agreement which are
approved by the Company in advance.
