Exhibit 10(e)27
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") made and entered into by and
between MISSISSIPPI POWER COMPANY (the "Company") and XXXXX X. XXXXXXXXX, III
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
thirty-nine (39) 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 must terminate employment with the Company on
January 1, 2004;
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 January 1,
2004 (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 amount 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 6, 7, 8, 9 and 10 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. Severance Payment to Employee.
(a) On the first day of the first month following both the Employee's
Termination Date and 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 pay to Employee an amount equal to Seven Hundred
Twenty-Five Thousand Dollars and No Cents ($725,000.00). 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 amount 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 amount 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 amount described in this Paragraph 2(a) hereof, such amount shall
be paid to Employee's spouse, if living, or if not, to the Employee's estate. In
accordance with Paragraph 21, Employee shall be responsible for all state and
federal income taxes and his share of FICA taxes owed on the foregoing amount,
and Company shall make appropriate withholding of these amounts.
(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 payment described in Paragraph 2(a) above, Company may
not make the payment to Employee under this Paragraph 2, and Company shall have
no further obligations under this Agreement. For purposes of this Paragraph
2(b), "Misconduct" shall mean (i) the final conviction of any felony, (ii) the
carrying out of any activity or the making of any public statement which
materially diminishes or materially and untruthfully brings the Southern Company
or any of its affiliates or subsidiaries into contempt, ridicule or materially
and reasonably shocks or offends the community in which the Southern Company or
its affiliate or subsidiary is located, or (iii) a material breach of any of his
obligations under this Agreement.
3. Publicity; No Disparaging Statement. Except as otherwise provided in
Paragraph 14 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. Except as otherwise provided in Paragraph 5 hereof,
Employee agrees that he shall not seek re-employment as an employee, temporary
employee, leased 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. Except as otherwise provided in Paragraph 5 hereof, the Company or
any member of The Southern Company System shall not rehire the Employee as an
employee, temporary employee, leased 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 Senior Vice President, Human Resources, approves of such rehiring.
5. Consulting Services. Upon Employee's voluntary termination of
employment with the Company on his Termination Date and effectiveness of the
Release attached hereto as Exhibit 1, Employee agrees to execute the Consulting
Agreement attached hereto as Exhibit 2 and provide consulting services to the
Company as an independent contractor in accordance with such Consulting
Agreement.
6. 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 00 xxxxxx.
(x) Definitions. For purposes of Paragraphs 6, 7, 8, 9 and 10 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 Entities before the Mississippi 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.
7. 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
Separation Agreement with the Company which imposes certain
restrictions on him.
8. 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 8(A) in any business
substantially similar or competitive with that in which the Southern Entities
were engaged during his employment.
9. 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.
10. 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 payment described in
Paragraph 2 is also in consideration of his covenants and agreements contained
in Paragraphs 6 through 10 hereof.
(b) In the event Employee and the Company do not enter into the
Consulting Agreement attached hereto as Exhibit 2, 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.
11. 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. Notwithstanding the foregoing, in the event Company and Employee enter
into the Consulting Agreement attached hereto as Exhibit 2, Employee may retain
Company materials necessary to provide the services contemplated by such
Consulting Agreement.
12. 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.
13. 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, the Company shall not be obligated to enter into the
Consulting Agreement attached hereto as Exhibit 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.
14. 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
anyone 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.
15. 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 Mississippi, United States of America
(without giving effect to principles of conflicts of laws).
16. 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.
17. Severability. The unenforceability or invalidity of any particular
provision of this Agreement shall not affect its other provisions, and to the
extent necessary to give such other provisions effect, they shall be deemed
severable. The judicial body interpreting this Agreement shall be authorized and
instructed to rewrite any of the sections which are enforceable as written in
such a fashion so that they may be enforced to the greatest extent legally
possible. 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 00, 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 predicated upon this Agreement or any other
contract, shall not constitute a defense to the enforcement by Company of said
covenants and agreements.
18. 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.
19. Unsecured General Creditor. The Company shall neither reserve nor
specifically set aside funds for the payment of its obligations under this
Agreement, and such obligations shall be paid solely from the general assets of
the Company. Notwithstanding that Employee may be entitled to receive the value
of his benefit under the terms and conditions of this Agreement, the assets from
which such amount may be paid shall at all times be subject to the claims of the
Company's creditors.
20. No Effect On Other Arrangements. It is expressly understood and
agreed that the payment made in accordance with this Agreement is 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.
21. Tax Withholding. There shall be deducted from the payment under
this Agreement the amount of any tax required by any governmental authority to
be withheld and paid over by the Company to such governmental authority for the
account of Employee.
22. 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, or The Southern Company Pension Plan. The payment under this
Agreement shall not be considered wages, salaries or compensation under any
other employee benefit plan.
23. 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.
24. 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 5th day of December, 2003.
"COMPANY"
MISSISSIPPI POWER COMPANY
By: /s/Xxxx Xxxxxxx
Its: President & CEO
"EMPLOYEE"
XXXXX X. XXXXXXXXX, III
/s/H. E. Xxxxxxxxx, III
EXHIBIT 1 to
Separation Agreement
with Xxxxx X. Xxxxxxxxx, III
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between XXXXX
X. XXXXXXXXX, III ("Employee") and MISSISSIPPI POWER COMPANY, and its successor
or assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Mississippi Power Company shall terminate on January 1, 2004;
WHEREAS, Employee and the Company have previously entered into that
certain Separation Agreement, dated _________________, 2003 ("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 or
the Xxxxxxxx-Xxxxx Act of 2002, 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 Separation Agreement, the
Company agrees to pay the Employee, his spouse or his estate, as the case may
be, the amount 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"
MISSISSIPPI 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"
XXXXX X. XXXXXXXXX, III
--------------------------- -----------------------------
Date
WITNESSED BY:
Date
EXHIBIT 2 to
Separation Agreement
with Xxxxx X. Xxxxxxxxx, III
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this ______ day of _________________, ____ 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:
-------------------------------
Title:
----------------------------
"CONTRACTOR"
XXXXX X. 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.
