Exhibit 10(e)2
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") is made and entered into by and
between MISSISSIPPI POWER COMPANY (the "Company") and XXX X. XXXXX ("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, 2005;
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,
2005 (the Employee's "Termination Date"), and effectiveness of the Release
attached hereto as Exhibit 1 (such effectiveness being no earlier than
Employee's last day of employment), 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, the obligation to enter into a consulting
arrangement with the Company under Paragraph 5 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 last day of
employment), the Company shall pay to Employee an amount equal to Three Hundred
Seventy-Five Thousand Dollars and No Cents ($375,000.00). 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.
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(a) (1) In exchange for Employee's agreement to forego any eligibility
for payment in March 2005, under the Company's 2004 Performance Pay Plan (PPP),
Employee will be eligible to receive a Supplemental Termination Payment ("STP")
up to what he otherwise would have been eligible for under PPP. The decision to
pay the STP at all, and the amount of the STP, will be within the sole
discretion of the President of Mississippi Power Company. The STP will be
subject to the same payment conditions set forth in Paragraph 2(a), except that
the STP will be paid, if at all, no later than March 30, 2005.
(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
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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 (such effectiveness being no earlier than
Employee's last day of employment), 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 the terms of 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.
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(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"), including but not limited to
lobbying on behalf of, or acting as a representative for, any
other Entity engaged in generating, transmitting, distributing
or selling electricity, except as approved in advance by the
President of Mississippi Power Company.
(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
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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 service territory of Entergy in
Louisiana and Arkansas, as well as the entire States of
Georgia, Alabama, Mississippi and 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
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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)
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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 immediate family, legal advisors or to the extent required by
law, and Employee further agrees that he will not disclose the terms, provisions
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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 the 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,
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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.
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(b) Employee covenants and agrees to not obtain or work in a
Competitive Position within the Territory for a period of eighteen (18) months
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, and any time
spent by employee pursuant to this contract shall be compensated at the rate of
$750 / day.
13. Termination with Cause. In the event of Employee's termination of
employment for Cause, as described in Paragraph 2(b), and below, the Employee
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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 immediate family and 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.
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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
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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.
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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 26th day of July, 2004.
"COMPANY"
MISSISSIPPI POWER COMPANY
By: /s/Xxxxxxx X. Xxxxxx
Its President
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"EMPLOYEE"
XXX X. XXXXX
/s/Xxx X. Xxxxx
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EXHIBIT 1 to
Separation Agreement
with Xxx X. Xxxxx
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between XXX X.
XXXXX ("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, 2005;
WHEREAS, Employee and the Company have previously entered into that
certain Separation Agreement, dated _________________, 2004 ("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,
2004 Performance Pay Plan, 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
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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.
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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"
XXX X. XXXXX
--------------------------- ------------------------------------
Date
WITNESSED BY:
Date
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EXHIBIT 2 to
Separation Agreement
with Xxx X. Xxxxx
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this ______ day of _________________, 2005 by and between MISSISSIPPI POWER
COMPANY ("Company"), and XXX X. XXXXX ("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 hereto 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. In
addition, Contractor shall comply with the Company's Independent Contractor Site
Rules and Standards of Behavior set forth in Exhibit B attached hereto and
incorporated herein by reference.
3. Compensation.
(a) Subject to the terms and conditions set forth in this Agreement,
and as compensation for the Services, Company shall pay to Contractor, and
Contractor shall accept a fee of Seven Hundred Fifty Dollars and No Cents
($750.00) per day worked.
(b) Contractor shall invoice Company for days worked on a monthly
basis. Invoices shall be directed to the Chief Executive Officer of the Company,
and Company shall pay Contractor within 15 days of receipt of such invoice.
(c) Contractor shall be reimbursed by 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.
(d) Because Contractor is an independent contractor, Company shall not
deduct any federal, state or local taxes or other withholdings from any sums
paid to Contractor under this Agreement, and Contractor hereby acknowledges and
agrees to fully and timely pay, and indemnify and hold harmless Company from any
liability for, any and all federal, state and local taxes or assessments of any
kind arising out of any payment made by Company to Contractor. Contractor shall
be responsible for all tax reporting, tax payments, withholdings, social
security taxes, unemployment taxes, insurance and other payments, expenses and
filings required to be made or paid by it.
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4. Term and Termination.
(a) Unless sooner terminated pursuant to Section 4(b), (c), or (d)
hereof, the term of this Agreement shall be for approximately eighteen (18)
months, commencing on the later of January 1, 2005 or the effective date of the
Release Agreement between Contractor and the Company and expiring on June 30,
2006 ("Term").
(b) Notwithstanding anything herein to the contrary, Company may cancel
and terminate this Agreement for any reason by giving Contractor fourteen (14)
days' prior written notice of such termination.
(c) Notwithstanding anything herein to the contrary, either party
hereto, in addition to any other rights and remedies such party may have against
the other party hereto at law, in equity or hereunder, may cancel and terminate
this Agreement if the other party fails to correct or cure any material breach
hereunder after ten (10) days' prior written notice of such breach from the
non-breaching party.
(d) Notwithstanding anything herein to the contrary, Company may
immediately cancel and terminate this Agreement in the event Contractor violates
Company's Independent Contractor Site Rules and Standards of Behavior set forth
in Exhibit B attached hereto and incorporated herein by reference.
(e) In the event this Agreement is terminated pursuant to Section 4(b),
(c), or (d) above, Contractor shall only be entitled to fees for days worked
through the date of the termination of this Agreement. Company shall have no
further obligations with respect to the payment of any compensation hereunder
after Contractor's termination pursuant to Section 4(b), (c) or (d), except as
provided in this Section 4(e).
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5. 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 is not authorized to bind Company to any liability or
obligation or to represent that Contractor has any such authority.
(b) Contractor shall obtain and maintain (at Contractor's own cost) any
required insurance or other protection required for the performance of the
Services under this Agreement.
(c) 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 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(d), above), except for the reimbursement of expenses as
described in Section 3(c) of this agreement.
(d) 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.
(e) Contractor shall complete the Services required under this
Agreement according to Contractor's own means and methods of work which shall be
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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.
(f) Contractor shall not be subject to Company's employee personnel
policies and procedures. 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.
(g) Company and Contractor acknowledge and agree that Contractor shall
not provide the Services to Company on a full-time basis. Nothing in this
Agreement shall prevent Contractor from engaging in other activities for and on
behalf of other clients during the Term of this Agreement. However, Contractor
acknowledges that Contractor is subject to certain non-disclosure and
non-interference obligations under Paragraphs 6, 7, 8, 9 and 10 of that certain
Separation Agreement entered into by and between Contractor and Company dated
___________, 2004, as well as certain non-disclosure obligations under Section 6
hereof.
6. Confidentiality and Ownership of Proprietary Property.
(a) For purposes of this Agreement, the following terms shall have the
following respective meanings:
(i) "Confidential Information" shall mean the proprietary or
confidential data, information, documents or materials
5
(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.
(ii) "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.
(iii) "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
6
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.
(iv) "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.
(b) In recognition of the need of Company to protect its legitimate
business interests, Contractor hereby covenants and agrees that Contractor 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.
(c) Contractor shall exercise its best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information of Company or
7
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) 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 to Company all rights, title and interest Contractor 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 Work Product rights. Contractor agrees 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.
7. 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 to Company, all written or descriptive
materials of any kind belonging or relating to the Company or its affiliates,
8
including, without limitation, any Work Product, Confidential Information and
Trade Secrets, in Contractor's possession or control.
8. Public Statements and Press Releases. Company shall issue all public
statements concerning the work hereunder. Contractor shall not 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.
9. Remedies. The parties represent and agree that any disclosure or use
of any Trade Secrets or Confidential Information by Contractor, except as
otherwise permitted under this Agreement or authorized by Company in writing, or
any other violation of Sections 6, 7 and 8, would be wrongful and cause
immediate, significant, continuing and irreparable injury and damage to Company
and the subsidiaries or affiliates of Southern Company that is not fully
compensable by monetary damages. Should Contractor breach or threaten to breach
any provision of Sections 6, 7 and 8, Company and any subsidiary or affiliate of
Southern Company 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 subsidiaries or affiliates
of Southern Company may be entitled by this Agreement, at law or in equity.
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),
9
settlements, suits, actions, expenses, liabilities and claims of any kind 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. Xxx X. Xxxxx
0 Xxxxxxx Xxxx Xxxxx
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
10
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 conflict 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.
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(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 6, 7, 8, 9 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 written above.
"COMPANY"
MISSISSIPPI POWER COMPANY
By:
-----------------------
Title:
--------------------
12
"CONTRACTOR"
XXX X. XXXXX
--------------------------
13
EXHIBIT A TO CONSULTING AGREEMENT
Services
Contractor shall manage, perform and provide professional consulting
services and advice, including, but not limited to, providing political lobbying
services, as may be requested in writing by the Chief Executive Officer of the
Company or his designee from time to time ("Services").
EXHIBIT B TO CONSULTING AGREEMENT
MISSISSIPPI POWER COMPANY
INDEPENDENT CONTRACTOR
SITE RULES AND STANDARDS OF BEHAVIOR
All independent contractors who are providing services to Mississippi
Power Company ("Company") are expected and required to refrain from engaging in
certain types of misbehavior. The following list contains some (but by no means
all) behaviors which independent contractors are required to refrain from
engaging in:
(a) Theft or destruction of the property of Company or its
employees, managers, customers or other doing business with
Company;
(b) Abusing, threatening or intimidating employees, managers,
customers, or others doing business with Company;
(c) Sexual or other harassment or discrimination;
(d) Unauthorized disclosure of confidential information;
(e) Providing services to Company in a manner which compromises
the health and safety of the general public or Company's
employees, managers, customers, or others doing business with
Company, or failing to report any known, unsafe conditions;
(f) Unauthorized use or possession of weapons, firearms, or
explosives on Company's property or while conducting business
on behalf of Company;
(g) Dishonesty or falsification of documents or records submitted
to or maintained by Company;
(h) Providing services to or on behalf of Company while under the
influence of alcohol or illegal drugs;
(i) Manufacturing, selling, distributing, dispensing, possessing,
or using illegal drugs (or any paraphernalia associated with
such illegal drugs) on Company property, while conducting
business on behalf of the Company or while traveling in
Company vehicles, or reporting to provide services on behalf
of the Company while under the influence of any illegal drugs;
(j) Unauthorized use of alcohol on Company property, while
conducting business on behalf of the Company or while
traveling in Company vehicles, or reporting to provide
services on behalf of the Company while under the influence of
alcohol (including any legal drug that contains alcohol);
(k) Fighting on Company's property or while providing services to
or on behalf of Company;
(l) Violating Company's Electronic Communication Acceptable Use
Policy;
(m) Violating any applicable law or regulation; or
(n) Use of obscene, disruptive, hostile or abusive language while
on the premises of Company or while providing services to
Company.
