Exhibit 10(a)115
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") made and entered into by and
between The Southern Company ("Southern"), Gulf Power Company (the "Company")
and Xx. Xxxxxx X. Xxxxxxx. ("Xx. Xxxxxxx") (hereinafter collectively referred to
as the "Parties") is effective May 17, 2002.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xx. Xxxxxxx is President and CEO of the Company;
WHEREAS, the Company wishes to provide to Xx. Xxxxxxx certain severance
benefits under certain circumstances following a change in control (as defined
herein) of Southern or the Company;
NOW, THEREFORE, in consideration of the premises, and the agreements of
the Parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Annual Compensation" shall mean Xx. Xxxxxxx'x highest
annual base salary rate for the twelve (12) month period immediately
preceding the date of the Change in Control plus target bonus.
(b) "Beneficial Ownership" shall mean beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Exchange Act.
(c) "Board" shall mean the board of directors of the Company.
(d) "Business Combination" shall mean a reorganization, merger
or consolidation of Southern or sale or other disposition of all or
substantially all of the assets of Southern.
(e) "Change in Control" shall mean any of the following:
(i) The Consummation of an acquisition by any Person
of Beneficial Ownership of 20% or more of Southern's Voting
Securities; provided, however, that for purposes of this
Paragraph 1.(e)(i), the following acquisitions of Southern's
Voting Securities shall not constitute a Change in Control:
(A) any acquisition directly from Southern;
(B) any acquisition by Southern;
(C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by
Southern or any Southern Subsidiary;
(D) any acquisition by a qualified pension
plan or publicly held mutual fund;
(E) any acquisition by a Group composed
exclusively of employees of Southern, or any Southern
Subsidiary;
(F) any acquisition by Xx. Xxxxxxx or any
Group of which Xx. Xxxxxxx is a party; or
(G) any Business Combination which would not
otherwise constitute a change in control because of
the application of clauses (A), (B) and (C) of
Paragraph 1.(e)(iii); (ii) A change in the
composition of the Southern Board whereby individuals
who constitute the Incumbent Board cease for any
reason to constitute at least a majority of the
Southern Board;
(iii) Consummation of a Business Combination,
provided, however, that such a Business Combination shall not
constitute a Change in Control if all three (3) of the
following conditions are met:
(A) all or substantially all of the
individuals and entities who held Beneficial
Ownership, respectively, of Southern's Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
65% or more of the combined voting power of the
Voting Securities of the corporation surviving or
resulting from such Business Combination, (including,
without limitation, a corporation which as a result
of such transaction holds Beneficial Ownership of all
or substantially all of Southern's Voting Securities
or all or substantially all of Southern's assets)
(such surviving or resulting corporation to be
referred to as "Surviving Company"), in substantially
the same proportions as their ownership, immediately
prior to such Business Combination, of Southern's
Voting Securities;
(B) no Person (excluding any corporation
resulting from such Business Combination, any
employee benefit plan (or related trust) of Southern,
any Southern Subsidiary or Surviving Company, Xx.
Xxxxxxx, any Group of which Xx. Xxxxxxx is a party,
any Group composed exclusively of Company employees,
any qualified pension plan (or related trust) or any
publicly held mutual fund) holds Beneficial
Ownership, directly or indirectly, of 20% or more of
the combined voting power of the then outstanding
Voting Securities of Surviving Company except to the
extent that such ownership existed prior to the
Business Combination; and
(C) at least a majority of the members of
the board of directors of Surviving Company were
members of the Incumbent Board at the earlier of the
date of execution of the initial agreement, or of the
action of the Southern Board, providing for such
Business Combination.
(iv) The Consummation of an acquisition by any Person
of Beneficial Ownership of 50% or more of the combined voting
power of the then outstanding Voting Securities of the
Company; provided, however, that for purposes of this
Paragraph 1.(e)(iv), any acquisition by Xx. Xxxxxxx, any Group
composed exclusively of employees of the Company, any Group of
which Xx. Xxxxxxx is a party, any qualified pension plan (or
related trust), any publicly held mutual fund, any employee
benefit plan (or related trust) sponsored or maintained by
Southern or any Southern Subsidiary shall not constitute a
Change in Control;
(v) Consummation of a reorganization, merger or
consolidation of the Company (an "Employing Company Business
Combination"), in each case, unless, following such Employing
Company Business Combination, Southern Controls the
corporation or other entity surviving or resulting from such
Employing Company Business Combination; or
(vi) Consummation of the sale or other disposition of
all or substantially all of the assets of the Company to a
corporation or other entity which Southern does not Control.
Notwithstanding the foregoing, in no event shall "Change in
Control" mean an initial public offering or a spin-off of the
Company.
(f) "COBRA Coverage" shall mean any continuation coverage to
which Xx. Xxxxxxx or his dependents may be entitled pursuant
to Code Section 4980B.
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended. (h) "Company" shall mean Gulf Power Company, its
successors and assigns. (i) "Consummation" shall mean the
completion of the final act necessary to complete a
transaction as a matter of law, including, but not limited to, any
required approvals by the corporation's shareholders and board of
directors, the transfer of legal and beneficial title to securities or
assets and the final approval of the transaction by any applicable
domestic or foreign governments or governmental agencies.
(j) "Control" shall mean, in the case of a corporation,
Beneficial Ownership of more than 50% of the combined voting
power of the corporation's Voting Securities, or in the case
of any other entity, Beneficial Ownership of more than 50% of
such entity's voting equity interests.
(k) "Effective Date" shall mean the date of execution of this
Agreement. (l) "Employee Outplacement Program" shall mean the
program established by the Company from
time to time for the purpose of assisting participants covered by the plan in
finding employment outside of the Company which provides for the following
services:
(i) self-assessment, career decision and goal
setting; (ii) job market research and job sources;
(iii) networking and interviewing skills; (iv)
planning and implementation strategy; (v) resume
writing, job hunting methods and salary negotiation;
and (vi) office support and job search resources.
(m) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended. (n) "Good Reason" shall mean, without Xx.
Xxxxxxx'x express written consent, after written
notice to the Board, and after a thirty (30) day opportunity for the
Board to cure, the continuing occurrence of any of the following
events:
(i) Inconsistent Duties. A meaningful and detrimental
alteration in Xx. Xxxxxxx'x position or in the nature or
status of his responsibilities from those in effect
immediately prior to the Change in Control;
(ii) Reduced Salary. A reduction of five percent (5%)
or more by the Company in either of the following: (i) Xx.
Xxxxxxx'x annual base salary rate as in effect immediately
prior to the Change in Control (except for a less than ten
percent (10%), across-the-board annual base salary rate
reduction similarly affecting at least ninety-five percent
(95%) of the Executive Employees of the Company); or (ii) the
sum of Xx. Xxxxxxx'x annual base salary rate plus target bonus
under the PPP (except for a less than ten percent (10%),
across-the-board reduction of annual base salary rate plus
target bonus under the PPP similarly affecting at least
ninety-five percent (95%) of the Executive Employees of the
Company);
(iii) Pension and Compensation Plans. The failure by
the Company to continue in effect any pension or compensation
plan or agreement in which Xx. Xxxxxxx participates or is a
party as of the date of the Change in Control or the
elimination of Xx. Xxxxxxx'x participation therein, (except
for across-the-board plan changes or terminations similarly
affecting at least ninety-five percent (95%) of the Executive
Employees of the Company). For purposes of this Paragraph
1.(n), a "pension plan or agreement" shall mean any written
arrangement executed by an authorized officer of the Company
which provides for payments upon retirement; and a
"compensation plan or arrangement" shall mean any written
arrangement executed by an authorized officer of the Company
which provides for periodic, non-discretionary compensatory
payments in the nature of bonuses.
(iv) Relocation. A change in Xx. Xxxxxxx'x work
location to a location more than fifty (50) miles from the
office where Xx. Xxxxxxx is located at the time of the Change
in Control, unless such new work location is within fifty (50)
miles from Xx. Xxxxxxx'x principal place of residence at the
time of the Change in Control. The acceptance, if any, by Xx.
Xxxxxxx of employment by the Company at a work location which
is outside the fifty mile radius set forth in this Paragraph
1.(n)(iv) shall not be a waiver of Xx. Xxxxxxx'x right to
refuse subsequent transfer by the Company to a location which
is more than fifty (50) miles from Xx. Xxxxxxx'x principal
place of residence at the time of the Change in Control, and
such subsequent unconsented transfer shall be "Good Reason"
under this Agreement; or
(v) Benefits and Perquisites. The taking of any
action by the Company which would directly or indirectly
materially reduce the benefits enjoyed by Xx. Xxxxxxx under
the Company's retirement, life insurance, medical, health and
accident, disability, deferred compensation or savings plans
in which Xx. Xxxxxxx was participating immediately prior to
the Change in Control; or the failure by the Company to
provide Xx. Xxxxxxx with the number of paid vacation days to
which Xx. Xxxxxxx is entitled on the basis of years of service
with the Company in accordance with the Company's normal
vacation policy in effect immediately prior to the Change in
Control (except for across-the-board plan or vacation policy
changes or plan terminations similarly affecting at least
ninety-five percent (95%) of the Executive Employees of the
Company).
(vi) For purposes of this Paragraph 1.(n), the term
"Executive Employee" shall mean those employees of the Company
of Grade Level 10 or above. (o) "Group" shall have the meaning
set forth in Section 14(d) of the Exchange Act. (p) "Group
Health Plan" shall mean the group health plan covering Xx.
Xxxxxxx, as such plan may be amended from time to time.
(q) "Group Life Insurance Plan" shall mean the group life
insurance program covering Xx. Xxxxxxx, as such plan may be
amended from time to time.
(r) "Incumbent Board" shall mean those individuals who
constitute the Southern Board as of October 19, 1998 plus any
individual who shall become a director subsequent to such date
whose election or nomination for election by Southern's
shareholders was approved by a vote of at least 75% of the
directors then comprising the Incumbent Board. Notwithstanding
the foregoing, no individual who shall become a director of
the Southern Board subsequent to October 19, 1998 whose
initial assumption of office occurs as a result of an actual
or threatened election contest (within the meaning of Rule
14a-11 of the Regulations promulgated under the Exchange Act)
with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Southern Board shall be a
member of the Incumbent Board.
(s) "Month of Service" shall mean any calendar month during
which Xx. Xxxxxxx has worked at least one (1) hour or was on
approved leave of absence while in the employ of the Company
or any affiliate or subsidiary of Southern.
(t) "Omnibus Plan" shall mean the Southern Company Omnibus
Incentive Compensation Plan, and the Design and Administrative
Specifications duly adopted thereunder, [as in effect on the
day before the date of a Change in Control,] as may be amended
from time to time.
(u) "Pension Plan" shall mean The Southern Company Pension
Plan, as such plan may be amended from time to time.
(v) "Performance Dividend Program" shall mean the Performance
Dividend Program under the Omnibus Plan or any replacement
thereto, as such plans may be amended from time to time.
(w) "Person" shall mean any individual, entity or group within
the meaning of Section 13(d)(3) or 14(d)(2) of Act.
(x) "Performance Pay Program" or "PPP" shall mean the
Performance Pay Program under the Omnibus Plan or any
replacement thereto, as such plans may be amended from time to
time.
(y) "Southern" shall mean The Southern Company, its successors
and assigns. (z) "Southern Board" shall mean the board of
directors of Southern. (aa) "Southern Subsidiary" shall mean
any corporation or other entity Controlled by
Southern.
(bb) "Termination for Cause" or "Cause" shall mean the
termination of Xx. Xxxxxxx'x employment by the Company upon
the occurrence of any of the following:
(i) The willful and continued failure by Xx. Xxxxxxx
substantially to perform his duties with the Company (other
than any such failure resulting from Xx. Xxxxxxx'x Total
Disability or from Xx. Xxxxxxx'x retirement or any such actual
or anticipated failure resulting from termination by Xx.
Xxxxxxx for Good Reason) after a written demand for
substantial performance is delivered to him by the Southern
Board, which demand specifically identifies the manner in
which the Southern Board believes that he has not
substantially performed his duties; or
(ii) The willful engaging by Xx. Xxxxxxx in conduct
that is demonstrably and materially injurious to the Company,
monetarily or otherwise, including, but not limited to any of
the following:
(A) any willful act involving fraud or
dishonesty in the course of Xx. Xxxxxxx'x employment
by the Company;
(B) the willful carrying out of any activity
or the making of any statement which would materially
prejudice or impair the good name and standing of the Company,
Southern or any Southern Subsidiary or would bring the
Company, Southern or any Southern Subsidiary into contempt,
ridicule or would reasonably shock or offend any community in
which the Company, Southern or such Southern Subsidiary is
located;
(C) attendance at work in a state of
intoxication or otherwise being found in possession at his
workplace of any prohibited drug or substance, possession of
which would amount to a criminal offense;
(D) violation of the Company's policies on
drug and alcohol usage, fitness for duty requirements or
similar policies as may exist from time to time as adopted by
the Company's safety officer;
(E) assault or other act of violence against
any person during the course of employment; or
(F) indictment of any felony or any
misdemeanor involving moral turpitude. No act or failure to
act by Xx. Xxxxxxx shall be deemed "willful" unless done, or
omitted to be
done, by Xx. Xxxxxxx not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Xx. Xxxxxxx shall not be deemed
to have been terminated for Cause unless and until there shall have
been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three quarters of the entire
membership of the Southern Board at a meeting of the Southern Board
called and held for such purpose (after reasonable notice to Xx.
Xxxxxxx and an opportunity for him, together with counsel, to be heard
before the Southern Board), finding that, in the good faith opinion of
the Southern Board, Xx. Xxxxxxx was guilty of conduct set forth above
in clause (i) or (ii) of this Paragraph 1.(bb) and specifying the
particulars thereof in detail.
(cc) "Termination Date" shall mean the date on which Xx.
Xxxxxxx'x employment with the Company is terminated; provided,
however, that solely for purposes of Paragraph 2.(c) hereof,
the Termination Date shall be the effective date of his
retirement pursuant to the terms of the Pension Plan.
(dd) "Total Disability" shall mean Xx. Xxxxxxx'x total
disability within the meaning of the Pension Plan.
(ee) "Voting Securities" shall mean the outstanding voting
securities of a corporation entitling the holder thereof to
vote generally in the election of such corporation's
directors.
(ff) "Waiver and Release" shall mean the Waiver and Release
attached hereto as Exhibit A. (gg) "Year of Service" shall
mean Xx. Xxxxxxx'x Months of Service divided by twelve (12)
rounded to the nearest whole year, rounding up if the remaining number
of months is seven (7) or greater and rounding down if the remaining
number of months is less than seven (7). If Xx. Xxxxxxx has a break in
his service with the Company, he will receive credit under this
Agreement for service prior to the break in service only if the break
in service is less than five years.
2. Severance Benefits.
(a) Eligibility. Except as otherwise provided in this
Paragraph 2.(a), if Xx. Xxxxxxx'x employment is involuntarily
terminated by the Company at any time during the two year period
following a Change in Control for reasons other than Cause, or if Xx.
Xxxxxxx voluntarily terminates his employment with the Company for Good
Reason at any time during the two year period following a Change in
Control, Xx. Xxxxxxx shall be entitled to receive the benefits
described in this Agreement upon the Company's receipt of an effective
Waiver and Release. Notwithstanding anything to the contrary herein,
Xx. Xxxxxxx shall not be eligible to receive benefits under this
Agreement if Xx. Xxxxxxx:
(i) voluntarily terminates his employment with the
Company for other than Good Reason;
(ii) has his employment terminated by the Company for
Cause;
(iii) accepts the transfer of his employment to
Southern, any Southern Subsidiary or any employer that
succeeds to all or substantially all of the assets of the
Company, Southern or any Southern Subsidiary;
(iv) refuses an offer of continued employment with
the Company, any Southern Subsidiary, or any employer that
succeeds to all or substantially all of the assets of the
Company, Southern, or any Southern Subsidiary under
circumstances where such refusal would not amount to Good
Reason for voluntary termination of employment; or
(v) elects to receive the benefits of any other
voluntary or involuntary severance or separation program, plan
or agreement maintained by the Company in lieu of benefits
under this Agreement; provided however, that the receipt of
benefits under the terms of any retention plan or agreement
shall not be deemed to be the receipt of severance or
separation benefits for purposes of this Agreement.
(b) Severance Benefits. If Xx. Xxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash
severance benefit in an amount equal to three times his Annual
Compensation (the "Severance Amount"). If any portion of the Severance
Amount constitutes an "excess parachute payment" (as such term is
defined under Code Section 280G ("Excess Parachute Payment")), the
Company shall pay to Xx. Xxxxxxx an additional amount calculated by
determining the amount of tax under Code Section 4999 that he otherwise
would have paid on any Excess Parachute Payment with respect to the
Change in Control and dividing such amount by a decimal determined by
adding the tax rate under Code Section 4999 ("Excise Tax"), the
hospital insurance tax under Code Section 3101(b) ("HI Tax") and
federal and state income tax measured at the highest marginal rates
("Income Tax") and subtracting such result from the number one (1) (the
"280G Gross-up"); provided, however, that no 280G Gross-up shall be
paid unless the Severance Amount plus all other "parachute payments" to
Xx. Xxxxxxx under Code Section 280G exceeds three (3) times Xx.
Xxxxxxx'x "base amount" (as such term is defined under Code Section
280G ("Base Amount")) by ten percent (10%) or more; provided further,
that if no 280G Gross-up is paid, the Severance Amount shall be capped
at three (3) times Xx. Xxxxxxx'x Base Amount, less all other "parachute
payments" (as such term is defined under Code Section 280G) received by
Xx. Xxxxxxx, less one dollar (the "Capped Amount"), if the Capped
Amount, reduced by HI Tax and Income Tax, exceeds what otherwise would
have been the Severance Amount, reduced by HI Tax, Income Tax and
Excise Tax.
For purposes of this Paragraph 2.(b), whether any amount would
constitute an Excess Parachute Payment and any other calculations of
tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts,
e.g., Base Amount, Capped Amount, etc., shall be determined by the tax
department of the independent public accounting firm then responsible
for preparing Southern's consolidated federal income tax return, and
such calculations or determinations shall be binding upon the parties
hereto.
(c) Welfare Benefits. If Xx. Xxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof and is not otherwise eligible to
receive retiree medical and life insurance benefits provided to certain
retirees pursuant to the terms of the Pension Plan, the Group Health
Plan and the Group Life Insurance Plan, he shall be entitled to the
benefits set forth in this Paragraph 2.(c).
(i) Xx. Xxxxxxx shall be eligible to participate in
the Company's Group Health Plan, upon payment of both the
Company's and his monthly premium under such plan, for a
period of six (6) months for each of Xx. Xxxxxxx'x Years of
Service, not to exceed five (5) years. If Xx. Xxxxxxx elects
to receive this extended medical coverage, he shall also be
entitled to elect coverage under the Group Health Plan for his
dependents who were participating in the Group Health Plan on
Xx. Xxxxxxx'x Termination Date (and for such other dependents
as may be entitled to coverage under the provisions of the
Health Insurance Portability and Accountability Act of 1996)
for the duration of Xx. Xxxxxxx'x extended medical coverage
under this Paragraph 2.(c)(i) to the extent such dependents
remain eligible for dependent coverage under the terms of the
Group Health Plan.
(A) The extended medical coverage afforded
to Xx. Xxxxxxx pursuant to Paragraph 2.(c)(i), as
well as the premiums to be paid by Xx. Xxxxxxx in
connection with such coverage shall be determined in
accordance with the terms of the Group Health Plan
and shall be subject to any changes in the terms and
conditions of the Group Health Plan as well as any
future increases in premiums under the Group Health
Plan. The premiums to be paid by Xx. Xxxxxxx in
connection with this extended coverage shall be due
on the first day of each month; provided, however,
that if he fails to pay his premium within thirty
(30) days of its due date, such extended coverage
shall be terminated.
(B) Any Group Health Plan coverage provided
under Paragraph 2.(c)(i) shall be a part of and not
in addition to any COBRA Coverage which Xx. Xxxxxxx
or his dependents may elect. In the event that Xx.
Xxxxxxx or his dependents become eligible to be
covered, by virtue of re-employment or otherwise, by
any employer-sponsored group health plan or is
eligible for coverage under any government-sponsored
health plan during the above period, coverage under
the Company's Group Health Plan available to Xx.
Xxxxxxx or his dependents by virtue of the provisions
of Paragraph 2.(c)(i) shall terminate, except as may
otherwise be required by law, and shall not be
renewed. (ii) Xx. Xxxxxxx shall be entitled to
receive cash in an amount equal to the
Company's and Xx. Xxxxxxx'x cost of premiums for three (3)
years of coverage under the Group Health Plan and Group Life
Insurance Plan in accordance with the terms of such plans as
of the date of the Change in Control.
(d) Incentive Plans. If Xx. Xxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof he shall be entitled to the
following benefits under the Omnibus Plan:
(i) Stock Options.
(A) Any of Xx. Xxxxxxx'x Options and Stock
Appreciation Rights under the Omnibus Plan (the
defined terms of which are incorporated in this
Paragraph 2.(d)(i) by reference) which are
outstanding as of the Termination Date and which are
not then exercisable and vested, shall become fully
exercisable and vested to the full extent of the
original grant; provided, that in the case of a Stock
Appreciation Right, if Xx. Xxxxxxx is subject to
Section 16(b) of the Exchange Act, such Stock
Appreciation Right shall not become fully vested and
exercisable at such time if such actions would result
in liability to Xx. Xxxxxxx under Section 16(b) of
the Exchange Act, provided further, that any such
actions not taken as a result of the rules under
Section 16(b) of the Exchange Act shall be effected
as of the first date that such activity would no
longer result in liability under Section 16(b) of the
Exchange Act.
(B) The restrictions and deferral
limitations applicable to any of Xx. Xxxxxxx'x
Restricted Stock and Restricted Stock Units as of the
Termination Date shall lapse, and such Restricted
Stock and Restricted Stock Units shall become free of
all restrictions and limitations and become fully
vested and transferable to the full extent of the
original grant.
(ii) Performance Pay Program. Provided Xx. Xxxxxxx is
not entitled to a Cash-Based Award under the PPP, (the defined
terms of which are incorporated in this Paragraph 2.(d)(ii) by
reference), if the PPP is in place through Xx. Xxxxxxx'x
Termination Date and to the extent Xx. Xxxxxxx is entitled to
participate therein, Xx. Xxxxxxx shall be entitled to receive
cash in an amount equal to a prorated payout of his Cash-Based
Awards under the PPP for the performance period in which the
Termination Date shall have occurred, at target performance
under the PPP and prorated by the number of months which have
passed since the beginning of the performance period until the
Termination Date.
(iii) Performance Dividend Program. Provided Xx.
Xxxxxxx is not entitled to a Cash-Based Award under the
Performance Dividend Program (the defined terms of which are
incorporated in this Paragraph 2.(d)(iii) by reference), if
the Performance Dividend Program is in place through Xx.
Xxxxxxx'x Termination Date and to the extent Xx. Xxxxxxx is
entitled to participate therein, Xx. Xxxxxxx shall be entitled
to receive cash for each such Cash-Based Award under the
Performance Dividend Program held by Xx. Xxxxxxx on his
Termination Date, based on actual performance under the
Performance Dividend Program determined as of the most
recently completed calendar quarter of the performance period
in which the Termination Date shall have occurred, and the
annual dividend declared prior to the Termination Date.
(iv) Other Short Term Incentives Under the Omnibus
Plan. Provided Xx. Xxxxxxx is not entitled to a Performance
Unit/Share award under the Omnibus Plan (the defined terms of
which are incorporated in this Paragraph 2.(d)(iv) by
reference), Xx. Xxxxxxx shall be entitled to receive cash in
an amount equal to a prorated payout of the value of his
Performance Units and/or Performance Shares for the
performance period in which the Termination Date shall have
occurred, at target performance and prorated by the number of
months which have passed since the beginning of the
performance period until the Termination Date.
(v) Other Short Term Incentive Plans. The provisions
of this Paragraph 2.(d)(v) shall apply if and to the extent
that Xx. Xxxxxxx is a participant in any other "short term
compensation plan" not otherwise previously referred to in
this Paragraph 2.(d). Provided Xx. Xxxxxxx is not otherwise
entitled to a plan payout under any change of control
provisions of such plans, if the "short term compensation
plan" is in place as of the Termination Date and to the extent
Xx. Xxxxxxx is entitled to participate therein, Xx. Xxxxxxx
shall receive cash in an amount equal to his award under the
Company's "short term incentive plan" for the annual
performance period in which the Termination Date shall have
occurred, at Xx. Xxxxxxx'x target performance level and
prorated by the number of months which have passed since the
beginning of the annual performance period until his
Termination Date. For purposes of this Paragraph 2.(d)(v) the
term "short term incentive compensation plan" shall mean any
incentive compensation plan or arrangement adopted in writing
by the Company which provides for annual, recurring
compensatory bonuses based upon articulated performance
criteria. (e) Payment of Benefits. Any amounts due under this
Agreement shall be paid in one (1)
lump sum payment as soon as administratively practicable following the
later of: (i) Xx. Xxxxxxx'x Termination Date, or (ii) upon Xx.
Xxxxxxx'x tender of an effective Waiver and Release to the Company in
the form of Exhibit A attached hereto and the expiration of any
applicable revocation period for such waiver. In the event of a dispute
with respect to liability or amount of any benefit due hereunder, an
effective Waiver and Release shall be tendered at the time of final
resolution of any such dispute when payment is tendered by the Company.
(f) Benefits in the Event of Death. In the event of Xx.
Xxxxxxx'x death prior to the payment of all amounts due under this
Agreement, Xx. Xxxxxxx'x estate shall be entitled to receive as due any
amounts not yet paid under this Agreement upon the tender by the
executor or administrator of the estate of an effective Waiver and
Release.
(g) Legal Fees. In the event of a dispute between Xx. Xxxxxxx
and the Company with regard to any amounts due hereunder, if any
material issue in such dispute is finally resolved in Xx. Xxxxxxx'x
favor, the Company shall reimburse Xx. Xxxxxxx'x legal fees incurred
with respect to all issues in such dispute in an amount not to exceed
fifty thousand dollars ($50,000).
(h) Employee Outplacement Services. Xx. Xxxxxxx shall be
eligible to participate in the Employee Outplacement Program, which
program shall not be less than six (6) months duration measured from
Xx. Xxxxxxx'x Termination Date.
(i) Non-qualified Retirement and Deferred Compensation Plans.
The Parties agree that subsequent to a Change in Control, any claims by
Xx. Xxxxxxx for benefits under any of the Company's non-qualified
retirement or deferred compensation plans shall be resolved through
binding arbitration in accordance with the provisions and procedures
set forth in Paragraph 5 hereof and if any material issue in such
dispute is finally resolved in Xx. Xxxxxxx'x favor, the Company shall
reimburse Xx. Xxxxxxx'x legal fees in the manner provided in Paragraph
2.(g) hereof.
3. Transfer of Employment. In the event that Xx. Xxxxxxx'x employment
by the Company is terminated during the two year period following a Change in
Control and Xx. Xxxxxxx accepts employment by Southern, a Southern Subsidiary,
or any employer that succeeds to all or substantially all of the assets of the
Company, Southern or any Southern Subsidiary, the Company shall assign this
Agreement to Southern, such Southern Subsidiary, or successor employer, Southern
shall accept such assignment or cause such Southern Subsidiary or successor
employer to accept such assignment, and such assignee shall become the "Company"
for all purposes hereunder.
4. No Mitigation. If Xx. Xxxxxxx is otherwise eligible to receive
benefits under Paragraph 2 of this Agreement, he shall have no duty or
obligation to seek other employment following his Termination Date and, except
as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Xx.
Xxxxxxx hereunder shall not be reduced or suspended if Xx. Xxxxxxx accepts such
subsequent employment.
5. Arbitration.
(a) Any dispute, controversy or claim arising out of or
relating to the Company's obligations to pay severance benefits under
this Agreement, or the breach thereof, shall be settled and resolved
solely by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") except as
otherwise provided herein. The arbitration shall be the sole and
exclusive forum for resolution of any such claim for severance benefits
and the arbitrators' award shall be final and binding. The provisions
of this Paragraph 5 are not intended to apply to any other disputes,
claims or controversies arising out of or relating to Xx. Xxxxxxx'x
employment by the Company or the termination thereof.
(b) Arbitration shall be initiated by serving a written notice
of demand for arbitration to Xx. Xxxxxxx, in the case of the Company,
or to the Southern Board, in the case of Xx. Xxxxxxx.
(c) The arbitration shall be held in Atlanta, Georgia. The
arbitrators shall apply the law of the State of Georgia, to the extent
not preempted by federal law, excluding any law which would require the
application of the law of another state.
(d) The parties shall appoint arbitrators within fifteen (15)
business days following service of the demand for arbitration. The
number of arbitrators shall be three. One arbitrator shall be appointed
by Xx. Xxxxxxx, one arbitrator shall be appointed by the Company, and
the two arbitrators shall appoint a third. If the arbitrators cannot
agree on a third arbitrator within thirty (30) business days after the
service of demand for arbitration, the third arbitrator shall be
selected by the AAA.
(e) The arbitration filing fee shall be paid by Xx. Xxxxxxx.
All other costs of arbitration shall be borne equally by Xx. Xxxxxxx
and the Company, provided, however, that the Company shall reimburse
such fees and costs in the event any material issue in such dispute is
finally resolved in Xx. Xxxxxxx'x favor and Xx. Xxxxxxx is reimbursed
legal fees under Paragraph 2.(g) hereof.
(f) The parties agree that they will faithfully observe the
rules that govern any arbitration between them, they will abide by and
perform any award rendered by the arbitrators in any such arbitration,
including any award of injunctive relief, and a judgment of a court
having jurisdiction may be entered upon an award.
(g) The parties agree that nothing in this Paragraph 5 is
intended to preclude upon application of either party any court having
jurisdiction from issuing and enforcing in any lawful manner such
temporary restraining orders, preliminary injunctions, and other
interim measures of relief as may be necessary to prevent harm to a
party's interests or as otherwise may be appropriate pending the
conclusion of arbitration proceedings pursuant to this Agreement;
regardless of whether an arbitration proceeding under this Paragraph 5
has begun. The parties further agree that nothing herein shall prevent
any court from entering and enforcing in any lawful manner such
judgments for permanent equitable relief as may be necessary to prevent
harm to a party's interests or as otherwise may be appropriate
following the issuance of arbitral awards pursuant to this Paragraph 5.
6. Miscellaneous.
(a) Funding of Benefits. Unless the Board in its discretion
shall determine otherwise, the benefits payable to Xx. Xxxxxxx under
this Agreement shall not be funded in any manner and shall be paid by
the Company out of its general assets, which assets are subject to the
claims of the Company's creditors.
(b) Withholding. There shall be deducted from the payment of
any benefit due under this Agreement the amount of any tax required by
any governmental authority to be withheld and paid over by the Company
to such governmental authority for the account of Xx. Xxxxxxx.
(c) Assignment. Xx. Xxxxxxx shall have no rights to sell,
assign, transfer, encumber, or otherwise convey the right to receive
the payment of any benefit due hereunder, which payment and the rights
thereto are expressly declared to be nonassignable and nontransferable.
Any attempt to do so shall be null and void and of no effect.
(d) Amendment and Termination. The Agreement may be amended or
terminated only by a writing executed by the parties.
(e) Construction. This Agreement shall be construed in
accordance with and governed by the laws of the State of Georgia, to
the extent not preempted by federal law, disregarding any provision of
law which would require the application of the law of another state.
(f) Pooling Accounting. Notwithstanding anything to the
contrary herein, if, but for any provision of this Agreement, a Change
in Control transaction would otherwise be accounted for as a
pooling-of-interests under XXX Xx.00 ("Pooling Accounting") (after
giving effect to any and all other facts and circumstances affecting
whether such Change in Control transaction would use Pooling
Accounting), such provision or provisions of this Agreement which would
otherwise cause the Change in Control transaction to be ineligible for
Pooling Accounting shall be void and ineffective in such a manner and
to the extent that by eliminating such provision or provisions of this
Agreement, Pooling Accounting would be required for such Change in
Control transaction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this
____ day of __________________, 2002. THE SOUTHERN COMPANY
By: ____________________________________
GULF POWER COMPANY
By: ____________________________________
XX. XXXXXXX
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XXXXXX X. XXXXXXX
Exhibit A
CHANGE IN CONTROL AGREEMENT
Waiver and Release
The attached Waiver and Release is to be given to Xx. Xxxxxx X. Xxxxxxx
upon the occurrence of an event that triggers eligibility for severance benefits
under the Change in Control Agreement, as described in Paragraph 2(a) of such
agreement.
CHANGE IN CONTROL AGREEMENT
Waiver and Release
I, Xxxxxx X. Xxxxxxx, understand that I am entitled to receive the
severance benefits described in Section 2 of the Change in Control Agreement
(the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand
that the benefits I will receive under the Agreement are in excess of those I
would have received from The Southern Company and Gulf Power Company
(collectively, the "Company") if I had not elected to sign this Waiver.
I recognize that I may have a claim against the Company under the Civil
Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the
Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended,
the Americans with Disabilities Act or other federal, state and local laws.
In exchange for the benefits I elect to receive, I hereby irrevocably
waive and release all claims, of any kind whatsoever, whether known or unknown
in connection with any claim which I ever had, may have, or now have against The
Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power
Company, Gulf Power Company, Savannah Electric and Power Company, Southern
Communication Services, Inc., Gulf Power Company, Southern Energy Resources,
Inc., Southern Company Energy Solutions, Inc., Southern Nuclear Operating
Company, Inc., Southern Energy, Inc. and other direct or indirect subsidiaries
of The Southern Company and their past, present and future officers, directors,
employees, agents and attorneys. Nothing in this Waiver shall be construed to
release claims or causes of action under the Age Discrimination in Employment
Act or the Energy Reorganization Act of 1974, as amended, which arise out of
events occurring after the execution date of this Waiver.
In further exchange for the benefits I elect to receive, I understand
and agree that I will respect the proprietary and confidential nature of any
information I have obtained in the course of my service with the Company or any
subsidiary or affiliate of The Southern Company. However, nothing in this Waiver
shall prohibit me from engaging in protected activities under applicable law or
from communicating, either voluntary or otherwise, with any governmental agency
concerning any potential violation of the law.
In signing this Waiver, I am not releasing claims to benefits that I am
already entitled to under any workers' compensation laws or under any retirement
plan or welfare benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is sponsored by or adopted by the
Company and/or any of its direct or indirect subsidiaries; however, I understand
and acknowledge that nothing herein is intended to or shall be construed to
require the Company to institute or continue in effect any particular plan or
benefit sponsored by the Company and the Company hereby reserves the right to
amend or terminate any of its benefit programs at any time in accordance with
the procedures set forth in such plans.
In signing this Waiver, I realize that I am waiving and releasing,
among other things, any claims to benefits under any and all bonus, severance,
workforce reduction, early retirement, outplacement, or any other similar type
plan sponsored by the Company.
I have been encouraged and advised in writing to seek advice from
anyone of my choosing regarding this Waiver, including my attorney, and my
accountant or tax advisor. Prior to signing this Waiver, I have been given the
opportunity and sufficient time to seek such advice, and I fully understand the
meaning and contents of this Waiver.
I understand that I may take up to twenty-one (21) calendar days to
consider whether or not I desire to enter this Waiver. I was not coerced,
threatened or otherwise forced to sign this Waiver. I have made my choice to
sign this Waiver voluntarily and of my own free will.
I understand that I may revoke this Waiver at any time during the seven
(7) calendar day period after I sign and deliver this Waiver to the Company. If
I revoke this Waiver, I must do so in writing delivered to the Company. I
understand that this Waiver is not effective until the expiration of this seven
(7) calendar day revocation period. I understand that upon the expiration of
such seven (7) calendar day revocation period this entire Waiver will be binding
upon me and will be irrevocable.
I understand that by signing this Waiver I am giving up rights I may
have.
IN WITNESS WHEREOF, the undersigned hereby executes this Waiver this ____
day of ____________________, in the year _____.
Xxxxxx X. Xxxxxxx
Sworn to and subscribed to me this
____ day of ____________, _____.
Notary Public
My Commission Expires:
(Notary Seal)
Acknowledged and Accepted by the Company, as defined in the Waiver.
By:
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Date:
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