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EXHIBIT 10.12
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered
into by and between The Southern Company ("Southern"), Southern Energy
Resources, Inc. (the "Company") and Xxxxxxx X. Xxxx ("Xx. Xxxx").
WITNESSETH:
WHEREAS, Xx. Xxxx is an Officer of the Company;
WHEREAS, the Company and Southern wish to encourage Xx. Xxxx to
increase the profitability of the Company and to provide Xx. Xxxx an interest in
the Company's overall profitability, and to provide Xx. Xxxx with additional
deferred compensation for service he has or will provide 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. Retention Bonus.
a. General Nature of Award. Subject to the terms and
conditions of this Agreement, the Company shall establish and maintain
on behalf of Xx. Xxxx an account on the Company's books and records
(the "Account") which, if Xx. Xxxx continues to be an employee of the
Company, or any affiliate or subsidiary of Southern (as set forth in
Paragraph 5 hereof), shall entitle Xx. Xxxx to receive on March 1, 2003
(the period from the effective date of the Agreement through March 1,
2003 to be referred to as the "Performance Period") an amount equal to
the then Market Value (as defined below) of the equivalent of Three
Hundred Thousand Dollars ($300,000.00) of Market Value of
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Southern's common stock deemed to have been purchased as of the
effective date of this Agreement, including reinvested dividends
thereon, increased, if certain profitability goals are met, by
estimated income tax expenses.
b. Investment.
(1) As of the date hereof, the Company shall
credit to Xx. Xxxx'x Account that number of deemed shares
(including fractional shares) of Southern's common stock
("Common Stock") as shall equal $300,000.00 in Market Value
(as defined herein) determined as of the effective date of
this Agreement (such hypothetical shares to be referred to
herein as the "Phantom Stock"). For purposes of this
Agreement, "Market Value" shall mean the average closing price
of the Common Stock as reported by the New York Stock Exchange
for the ten trading days immediately preceding the respective
valuation date.
(2) As of the day of each calendar quarter in
which occurs the payment of dividends on Common Stock, there
shall be credited to Xx. Xxxx'x Account such additional shares
of Phantom Stock (including fractional shares) as could have
been purchased at the Market Value on such day as follows:
(a) In the case of cash dividends, such
additional shares of Phantom Stock as could have been
purchased with the dividends payable on the number of
shares of Phantom Stock credited to the Account
immediately prior to the dividend;
(b) In the case of dividends payable in
property other than cash or Common Stock, such
additional shares of Phantom Stock as could have been
purchased with the fair market value of the property
which would have
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been payable as dividends on the number of shares of
Phantom Stock credited to the Account immediately
prior to the dividend; or
(c) In the case of dividends payable in
Common Stock, such additional shares of Phantom Stock
as would have been payable on the number of shares of
Phantom Stock credited to the Account immediately
prior to the dividend.
(3) In the event that the number of outstanding
shares of Common Stock is changed through merger,
consolidation, reorganization, recapitalization,
reincorporation, stock split, stock dividend (in excess of 2%)
or other change in the capital structure of Southern without
consideration, or upon the occurrence of any other
extraordinary corporate event involving the Common Stock
causing a reduction in the value of the Common Stock, such as
a corporate spin off or split up, the number of shares of
Phantom Stock credited to the Account shall be proportionately
adjusted by the Company so as to preserve the value of the
Account immediately prior to such event.
c. Vesting of Account. The Market Value of Xx. Xxxx'x
Account shall vest on March 1, 2003 (the "Vesting Date"), provided Xx.
Xxxx is then an employee of the Company, Southern, or an affiliate or
subsidiary of Southern.
d. Valuation of Account. The value of Xx. Xxxx'x Account
on any date shall be based on the Market Value on such date multiplied
by the number of shares of Phantom Stock then credited to the Account,
provided, however, that if the profitability goals established for the
Company and for Xx. Xxxx by the Chief Executive Officers of Southern
and the Company have been equaled or exceeded during the Performance
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Period as set forth on Exhibit A, and as annually documented on Exhibit
B of this Agreement (the "Profitability Goals"), the value of the
Account shall be increased upon payout to cover Xx. Xxxx'x federal and
state income tax expense as reasonably estimated by the Company for the
year of payout (the "Tax Gross-up"). Failure to meet the Profitability
Goals for the Performance Period shall result in the forfeiture of the
Tax Gross-up, provided, however, that the Chief Executive Officers of
Southern and the Company may, in their sole discretion, determine after
the close of the Performance Period, that as a result of overall
Company profitability and individual performance during the entire
Performance Period, all or a portion of the value of the Tax Gross-up
shall nevertheless be paid.
e. Payment of Account Balance. Provided that Xx. Xxxx is
then an employee of the Company, Southern, or an affiliate or
subsidiary of Southern, and, with respect to the Tax Gross-up amount,
has also achieved the Profitability Goals, the Company shall pay to Xx.
Xxxx the value of his Account, and, if applicable, the Tax Gross-up
amount, in cash within ten (10) days of the Vesting Date.
f. Election to Defer. By written election filed with
Southern's Vice President, Human Resources no less than thirteen (13)
months prior to the Vesting Date, Xx. Xxxx may defer all or a portion
of the amount to be received under this Agreement by having such amount
contributed on his account to The Southern Company Deferred
Compensation Plan, in accordance with the terms and conditions of such
Plan.
g. Death, Permanent Disability, Termination Without
Cause, Termination for Good Reason, or Continued Employment Following a
Change in Control. In the event of Xx. Xxxx'x termination of employment
with the Company prior to the payout of the value of
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the Account for reasons of death, permanent disability, termination by
the Company without Cause, or termination of employment by Xx. Xxxx for
Good Reason following a Change in Control, or, if prior to the payout
of the value of the Account Xx. Xxxx continues 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 following a Change in Control, the Company shall
pay to Xx. Xxxx, or his estate in the event of death, the value of the
Account determined as of the date of such termination or Change in
Control, plus, if the Profitability Goals have been met as of such
date, the Tax Gross-up amount. For purposes of this Paragraph 1.g., the
terms Cause, Change in Control, Good Reason, and Southern Subsidiary
shall have the meaning set forth in that certain Change in Control
Agreement, dated June 17, 1999, as amended from time to time, between
Southern, the Company and Xx. Xxxx (the "Change in Control Agreement"),
the defined terms of which are incorporated in this Paragraph 1.g. by
reference thereto.
h. Assignability. Neither Xx. Xxxx, his estate, his
beneficiaries, nor his legal representative shall have any rights to
commute, sell, assign, transfer or otherwise convey the right to
receive the payment under this Paragraph 1, which payment and the
rights thereto are expressly declared to be nonassignable and
nontransferable. Any attempt to assign or transfer the right to such
payment shall be void and have no effect.
2. Supplemental Pension Payment.
a. Nature of Payment. If Xx. Xxxx remains employed with
the Company until March 1, 2003 (the "Service Requirement") and upon
his termination of employment enters into a release in the form
attached hereto as Exhibit C, the Company shall pay him an amount per
month equal to the difference between the monthly amount payable to him
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under The Southern Company Pension Plan (the "Plan") as it shall then
be in effect at the time and the monthly amount which would have been
payable to him under the Plan if his period of Accredited Service under
the Plan included an additional ten (10) years; provided, however, that
the Plan's 43-year maximum on Accredited Service shall not apply to the
additional service granted under this Agreement, and provided further,
that the Service Requirement shall not apply if Xx. Xxxx is terminated
under circumstances that result in eligibility for severance benefits
under the Change in Control Agreement ("Change in Control
Termination"). Similarly, such additional service shall also be
credited to Xx. Xxxx for purposes of calculating a benefit under The
Southern Company Supplemental Executive Retirement Plan and/or The
Southern Energy Resources, Inc. Supplemental Executive Retirement Plan
(collectively "SERP"). For the purpose of computing a monthly amount
payable to Xx. Xxxx under the Plan, no limitation on benefits imposed
by the Internal Revenue Code as it now exists or is hereafter amended
or any other limiting legislation shall be taken into account. Said
amount shall be recalculated from time to time to reflect any future
increases, if any, in Retirement Income of retirees following Xx.
Xxxx'x retirement. Xx. Xxxx covenants and agrees that the consideration
set forth in this Paragraph 2.a. shall constitute good and complete
consideration for the release attached hereto as Exhibit C, those
nondisclosure and ownership obligations under Paragraph 4 hereof, and
all other obligations and covenants of Xx. Xxxx contained herein.
b. Commencement and Form of Payment. The benefit
provided in accordance with Paragraph 2.a. above shall be paid in
monthly installments on the first day of each month in the same manner
and commence at the same time as Xx. Xxxx'x election to receive
Retirement Income under the Plan. Xx. Xxxx'x benefit under Paragraph
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2.a. shall be subject to such early commencement reduction factors as
would apply to a participant in the Plan based on his benefit
commencement date under Paragraph 2.a. In the event Xx. Xxxx is
married, predeceases his spouse, and his spouse is entitled to payments
as a Provisional Payee, monthly payments shall be made in the same
manner as provided by the Provisional Payee option elected by him under
the Plan taking into account the additional Accredited Service set
forth in Paragraph 2.a. In the event Xx. Xxxx shall not be married or
shall not be survived by his spouse on the date payments commence under
this Paragraph 2, the benefit described in the preceding sentence shall
be forfeited. Xx. Xxxx or his surviving spouse shall not, under any
circumstances, have any option or right to require payments hereunder
otherwise than in accordance with the terms hereof.
c. Company's Option to Enhance Payment. On the second
anniversary of the effective date of this Agreement, the Company shall
have the option in its sole discretion to enhance the benefit under
this Paragraph 2 as follows: beginning September 1, 2002, for each year
of service completed by Xx. Xxxx with the Company after such date, the
Company shall pay him an amount per month equal to the difference
between the monthly amount payable to him under the Plan as it shall
then be in effect at the time and the monthly amount which would have
been payable to him under the Plan if his period of Accredited Service
under the Plan included an additional year, to a maximum of three (3)
additional years. Such additional service shall also be credited to Xx.
Xxxx for purposes of calculating a benefit under the SERP. If the
Company exercises such option, it shall so notify Xx. Xxxx in writing
and all the terms and conditions set forth in Paragraphs 2.a. and 2.b.
with respect to the original grant of supplemental pension credit shall
apply.
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3. Publicity; No Disparaging Statement. Except as otherwise
provided in Paragraph 6 hereof, Xx. Xxxx, Southern 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. Non-Disclosure and Non-Solicitation.
a. Definitions. For purposes of this Paragraph 4, the
following terms shall have the following meanings:
1) "Entity" shall mean any business,
individual, partnership, joint venture, agency, governmental
subdivision, association, firm, corporation or other entity.
2) "Affiliate" shall mean the following
Entities: (a) any Entity which owns an Interest (as defined
below) in the Company either directly or indirectly through
any other Entity, (b) any Entity an Interest in which is owned
directly or indirectly by any Entity which owns directly or
indirectly an Interest in the Company or (c) any Entity in
which the Company owns an Interest either directly or
indirectly through any other Entity. For purposes of this
Agreement, the term "Interest" shall include any equity
interest in an Entity in an amount equal to or greater than
30% of the Entity's total outstanding equity interests.
3) "Confidential Information" shall mean
proprietary and confidential data or information other than
Trade Secrets (as defined below), which is valuable to, and
related to the business of, the Company, its Affiliates or
non-affiliated Entities with whom the Company or its
Affiliates has or have business relationships (collectively,
"Third Parties"), and the details of which are generally
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unknown to the public or to the Company's competitors,
including, without limitation, information regarding the
Company's employees, business strategies, models and systems,
customers, suppliers, partners and affiliates, gained by Xx.
Xxxx as a result of his affiliation with the Company or its
Affiliates, and other items that the Company or its Affiliates
may from time to time xxxx or otherwise identify as
confidential.
4) "Trade Secrets" shall mean information of or
related to the Company, its Affiliates or Third Parties which
(a) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable
by proper means by, other persons who can obtain economic
value from its disclosure or use; and (b) is the subject of
efforts that are reasonable under the circumstances to
maintain its secrecy; it being agreed that such information
includes, without limitation, technical and non-technical
data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans or a list of actual or
potential customers or suppliers.
5) "Intellectual Property" shall mean all work
product, property, data, documentation, "know-how", concepts
or plans, inventions, discovery, compositions, innovations,
computer programs, improvements, techniques, processes,
designs, article of manufacture or information of any kind, or
any new or useful improvements of any of the foregoing and any
Trade Secrets, patents, copyrights, Confidential Information,
mask work, trademark or service xxxx, relating in any way to
the Company or its Affiliates and its or their business
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prepared, conceived, revised, discovered, developed, or
created by Mr. Perhsing for the Company or its Affiliates or
by using the Company's or its Affiliates' time, personnel,
facilities, or material.
b. Nondisclosure: Ownership of Proprietary Property.
1) Nondisclosure. In recognition of the
Company's need to protect its legitimate business interests,
Xx. Xxxx hereby acknowledges that he has been given access to
valuable Trade Secrets and Confidential Information; and he
hereby covenants and agrees that he will use the Trade Secrets
and Confidential Information for the Company's business
purposes only, and that he will not for any reason, in any
fashion, form or manner, other than as instructed by a duly
authorized representative of the Company, copy, disclose,
disseminate, communicate, transfer or otherwise convey to any
Entity any item: (a) which is a Trade Secret, for so long as
such item remains a trade secret under applicable law; or (b)
which is Confidential Information, other than Trade Secrets,
for a period of two (2) years from his termination.
2) Notification of Unauthorized Disclosure.
Xx. Xxxx shall exercise his best efforts to ensure the
continued confidentiality of all Trade Secrets and
Confidential Information known by, disclosed or made available
to him. He shall immediately notify the Company of any
unauthorized disclosure or use of any Trade Secrets or
Confidential Information of which he becomes aware. Xx. Xxxx
shall assist the Company, to the extent necessary, in the
procurement or protection of the Company's or its Affiliates'
rights to or in any Intellectual Property, Trade Secrets or
Confidential Information and, upon the Company's request,
shall assist,
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to the extent necessary, in the procurement or protection of
any Third Party's rights to or in any Intellectual Property,
Trade Secrets or Confidential Information.
3) Ownership. To the greatest extent possible,
any and all Intellectual Property 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.), and Xx. Xxxx hereby unconditionally and
irrevocably transfers and assigns to the Company or its
Affiliates all rights, title and interest he currently has or
in the future may have by operation of law or otherwise in or
to any Intellectual Property, including, without limitation,
all patents, copyrights, trademarks, service marks and other
Intellectual Property rights and agrees that the Company or
its Affiliates shall have the exclusive world-wide ownership
of such Intellectual Property, and that no Intellectual
Property shall be treated as or deemed to be a "joint work"
(as defined by the Copyright Act) of Xx. Xxxx and the Company,
its Affiliates or otherwise. Xx. Xxxx agrees to execute and
deliver to the Company or its Affiliates any transfers,
assignments, documents or other instruments which the Company
or its Affiliates may deem necessary or appropriate to vest
complete title and ownership of any Intellectual Property, and
all rights therein, exclusively in the Company or its
Affiliates, as the case may be.
4) Return of Materials. Upon Xx. Xxxx'x
termination, or at any point after that time upon the specific
request of the Company, he 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 Intellectual Property, Confidential
Information and Trade Secrets, in his possession.
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5. Transfer of Employment to Southern or a Southern Subsidiary or
Affiliate. In the event that Xx. Xxxx'x employment by the Company is terminated
and he shall become immediately re-employed by Southern or a subsidiary or an
affiliate of Southern, the Company shall assign this Agreement to Southern or
such subsidiary or affiliate, Southern shall accept such assignment or cause
such affiliate or subsidiary to accept such assignment, such assignee shall
become the "Company" for all purposes hereunder, including but not limited to
the Release attached hereto and incorporated herein as Exhibit C and the
profitability goals set forth on Exhibit A hereof shall be amended to
appropriately reflect the performance of such assignee. In the event of such
assignment, the expense of this Agreement shall be shared pro rata by the
Company and any such assignee based upon the number of months after the
effective date of this Agreement that Xx. Xxxx is employed by the Company,
and/or Southern and/or such affiliate or subsidiary of Southern, as the case may
be.
6. Confidentiality and Legal Process. Xx. Xxxx represents and
agrees that he will keep the terms, amount and fact of this Agreement
confidential and that he will not hereafter disclose any information concerning
this Agreement to any one other than his personal agents, including, but not
limited to, any past, present, or prospective employee or applicant for
employment with Company. Notwithstanding the foregoing, nothing in this
Agreement is intended to prohibit Xx. Xxxx from performing any duty or
obligation that shall arise as a matter of law. Specifically, Xx. Xxxx 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 Xx. Xxxx'x 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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7. Successors And Assigns; Applicable Law. Except as otherwise
provided in Paragraph 1.h., this Agreement shall be binding upon and inure to
the benefit of Xx. Xxxx and his heirs, administrators, representatives,
executors, successors and assigns, and shall be binding upon and inure to the
benefit of Southern, the Company and their 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 Georgia, United States of America
(without giving effect to principles of conflicts of laws).
8. 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 Xx. Xxxx and
an authorized representative of Southern and the Company.
9. 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.
10. 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
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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.
11. 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 Xx. Xxxx 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.
12. No Effect On Other Arrangements. It is expressly understood
and agreed that the payments made in accordance with this Agreement are in
addition to any other benefits or compensation to which Xx. Xxxx may be entitled
or for which he may be eligible, whether funded or unfunded, by reason of his
employment with the Company.
13. Tax Withholding. There shall be deducted from each 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 Xx. Xxxx.
14. Compensation. Any compensation contributed on behalf of
Xx. Xxxx under this Agreement shall not be considered "compensation," as the
term is defined in The Southern Company Employee Savings Plan, The Southern
Company Employee Stock Ownership Plan, The Southern Company Performance Sharing
Plan or The Southern Company Pension Plan. Payments under this Agreement shall
not be considered wages, salaries or compensation under any other employee
benefit plan.
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15. 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 Xx. Xxxx and the Company.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
first listed above, effective this 5th day of October, 1999.
THE SOUTHERN COMPANY
By: /s/ X. X. Xxxxxxxx
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SOUTHERN ENERGY RESOURCES, INC.
By: /s/ V. N. Xxxxxx
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Xx. Xxxx
/s/ X. X. Xxxx
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Attest:
By: /s/ S. Xxxxx Xxxxxx
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EXHIBIT A
DEFERRED COMPENSATION AGREEMENT
SCHEDULE OF PROFITABILITY GOALS
FOR PERFORMANCE PERIOD
The Company shall achieve a Corporate Performance Factor under the
Southern Energy Resources, Inc. Short Term Incentive Plan of at least 1.0 for
each of the calendar years 2000, 2001 and 2002 and an average of 1.5 for such
three-year period.
Achievement of the goals shall be assessed annually by the Chief
Executive Officers of Southern and the Company and documented in Exhibit B of
this Agreement.
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EXHIBIT B
DEFERRED COMPENSATION AGREEMENT
ANNUAL DOCUMENTATION OF PROFITABILITY GOALS
FOR PERFORMANCE PERIOD
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EXHIBIT C
RELEASE AGREEMENT
THIS RELEASE ("Release') is made and entered into by and between
XXXXXXX X. XXXX ("Employee"), THE SOUTHERN COMPANY ("Southern") and SOUTHERN
ENERGY RESOURCES, INC. and its successor or assigns ("Company").
WHEREAS, Employee, Southern and Company have agreed that Employee's
employment with _________________ shall terminate on ____________, _______;
WHEREAS, Employee, Southern and the Company have previously entered
into that certain Deferred Compensation Agreement, dated __________, 1999
("Agreement"), that this Release is incorporated therein by reference;
WHEREAS, Employee, Southern 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 provide Employee with deferred
compensation 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:
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1. RELEASE. Employee does hereby remise, release and forever
discharge Southern and the Company and their officers, directors, employees,
agents, shareholders, parent corporation and affiliates, and their respective
predecessors, successors, assigns, heirs, executors and administrators
(collectively, "Releasees"), of and from all manner of actions and causes of
action, suits, debts, claims and demands whatsoever at law or in equity, known
or unknown, actual or contingent, including, but not limited to, any claims
which have been asserted, or could be asserted now or in the future, against any
Releasees arising under any and all federal, state or local laws and any common
law claims, and including, but not limited to, any claims Employee may have
pursuant to the Age Discrimination in Employment Act and any claims to benefits
under any and all offer letters, employment or separation agreements, or bonus,
severance, workforce reduction, early retirement, out-placement, or other
similar plans sponsored by the Company, now or hereafter recognized
(collectively, "Claims"), which he ever had or now has or may in the future
have, by reason of any matter, cause or thing arising out of his employment
relationship and privileges, his serving as an employee of the Company or the
separation from his employment relationship or affiliation as an employee of the
Company as of the date of this Release against each of the Releasees.
Notwithstanding the foregoing, Employee does not release any Claims under the
Age Discrimination in Employment Act that may arise after his execution of this
Release.
2. NO ASSIGNMENT OF CLAIM. Employee represents that he has not
assigned or transferred, or purported to assign or transfer, any Claims or any
portion thereof or interest therein to any party prior to the date of this
Release.
3. DEFERRED COMPENSATION. In accordance with the Deferred
Compensation Agreement, the Company agrees to pay the Employee or his spouse, as
the case may be, the amounts provided in Paragraphs 1 and 2 of the Agreement.
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4. NO ADMISSION OF LIABILITY. This Release shall not in any way
be construed as an admission by Southern, the Company or Employee of any
improper actions or liability whatsoever as to one another, and each
specifically disclaims any liability to or improper actions against the other or
any other person, on the part of itself or himself, its or his employees or
agents.
5. VOLUNTARY EXECUTION. Employee warrants, represents and agrees
that he has been encouraged in writing to seek advice from anyone of his
choosing regarding this Release, including his attorney and accountant or tax
advisor prior to his signing it; that this Release represents written notice to
do so; that he has been given the opportunity and sufficient time to seek such
advice; and that he fully understands the meaning and contents of this Release.
He further represents and warrants that he was not coerced, threatened or
otherwise forced to sign this Release, and that his signature appearing
hereinafter is voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP
TO TWENTY-ONE (21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS
RELEASE.
6. ABILITY TO REVOKE AGREEMENT. EMPLOYEE UNDERSTANDS THAT HE MAY
REVOKE THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION
WITHIN SEVEN (7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS
NOT EFFECTIVE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS
THAT UPON THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE
BINDING UPON HIM AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS,
SUCCESSORS AND ASSIGNS AND WILL BE IRREVOCABLE.
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Acknowledged and Agreed To:
"SOUTHERN"
THE SOUTHERN COMPANY
By: /s/ X. X. Xxxxxxxx
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Its:
--------------------------------
"COMPANY"
SOUTHERN ENERGY RESOURCES, INC.
By:
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Its:
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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"
XXXXXXX X. XXXX
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DATE
WITNESSED BY:
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DATE
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