Exhibit 10(b)26
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") made and entered
into by and between ALABAMA POWER COMPANY (the "Company") and XXXXX XXXXXXX
XXXXXX ("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company and its affiliates
for approximately forty-four (44) 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 and resign from all positions he holds with the
Company, its parent and its affiliates, including, but not limited to,
memberships on the Boards of Directors of the Company and The Southern Company,
on January 11, 2002;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to such termination of employment and
resignation from positions held with the Company, its parent and its affiliates,
and desire to reach an accord and satisfaction of all claims arising from
Employee's employment, his termination of employment and his resignation from
positions held with the Company, its parent and its affiliates, with appropriate
releases; and
WHEREAS, the Company desires to provide deferred compensation to
Employee for service he has provided 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 and Resignation. Subject to the terms of this Agreement,
upon Employee's execution of this Agreement, voluntary termination of employment
with the Company and resignation from all positions he holds with the Company,
its parent and its affiliates, including, but not limited to, his memberships on
the Boards of Directors of the Company and The Southern Company, on January 11,
2002 (the Employee's "Termination Date"), and effectiveness of the Release
attached hereto as Exhibit 1 (such effectiveness being no earlier than
Employee's Termination Date), the Company agrees to pay to Employee or his
spouse or his estate, as applicable, the amounts 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 5, 6, 7, 8 and 9 hereof and all other obligations
and covenants of Employee contained herein, including, but not limited to,
Paragraph 4. Employee agrees that this Agreement provides him certain benefits
to which he would not otherwise be entitled.
2. Deferred Compensation Payments to Employee.
(a) Lump Sum Payment. Subject to the terms of Paragraph 1
hereof, as soon as practicable following the effective date of the Release
attached hereto as Exhibit 1 (such effective date being no earlier than
Employee's Termination Date), the Company shall pay to Employee a lump sum
amount equal to Two Million Five Hundred Thousand and No Cents ($2,500,000.00).
(b) Installments. Subject to the terms of Paragraph 1 hereof,
beginning as soon as practicable following the effective date of the Release
attached hereto as Exhibit 1 (such effective date being no earlier than
Employee's Termination Date), the Company shall commence payment to Employee of
eighty-seven (87) monthly installments in an amount equal to Seventeen Thousand
Six Hundred Forty Dollars and No Cents ($17,640.00) per monthly installment
payment. In the event of a Southern Change in Control or a Subsidiary Change in
Control affecting Employee as defined in the Southern Company Change in Control
Benefit Plan Determination Policy, any unpaid installments shall be paid in a
lump sum as soon as practicable after the occurrence of such an event. The lump
sum shall be equal to the present value of the remaining monthly installments
based on an effective interest rate of 7.5% per annum (0.6045% per month). In
the event Employee dies before receiving payment of the amounts described in
this Paragraph 2(b) hereof, such amounts shall be paid to Employee's spouse, if
living, or if not, to the Employee's estate. Upon application made by the
Employee, his spouse, or an authorized legal representative, as applicable, the
Company may in its sole discretion determine to accelerate installment payments
due under this Agreement.
(c) Notwithstanding the foregoing, in the event Employee
engages in Misconduct, as defined below, before or after Employee's Termination
Date but prior to receiving all of the payments described in Paragraph 2(b)
above, Company may cease making payments to Employee under this Paragraph 2, and
Company shall have no further obligations with respect to any amounts under this
Agreement. For purposes of this Paragraph 2(c), "Misconduct" shall mean (i) the
final conviction of any felony, or (ii) the carrying out of any activity or the
making of any public statement which materially diminishes or materially and
untruthfully brings Southern into contempt, ridicule or materially and
reasonably shocks or offends the community in which the Southern affiliate is
located.
(d) In accordance with Paragraph 19, Employee shall be
responsible for all state and federal income taxes and his share of FICA taxes
owed on the amounts described in subparagraphs (a) and (b) above, and Company
shall make appropriate withholding of these amounts.
3. Publicity; No Disparaging Statement. Except as otherwise provided
in Paragraph 12 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. Employee agrees that he shall not hereafter seek any
re-employment with the Company, its parent, its affiliates or its subsidiaries.
5. 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
and its affiliates, Employee warrants and agrees he will abide by and adhere to
the following business protection provisions in Xxxxxxxxxx 0, 0, 0, 0 xxx 0
xxxxxx.
(x) Definitions. For purposes of Paragraphs 5, 6, 7, 8 and 9 herein,
the following terms shall have the following meanings:
(i) "Competitive Position" shall mean any
employment, consulting, advisory,
directorship, agency, promotional or
independent contractor arrangement between
the Employee and any person or Entity
engaged wholly or in material part in the
business that the Company is engaged in (the
"Business") whereby the Employee is required
to or does perform services on behalf of or
for the benefit of such person or Entity
which are substantially similar to the
services Employee participated in or
directed while employed by the Company, The
Southern Company or any of their respective
affiliates (collectively the "Southern
Entities").
(ii) "Confidential Information" shall mean the
proprietary or confidential data,
information, documents or materials (whether
oral, written, electronic or otherwise)
belonging to or pertaining to the Company or
other Southern Entities, other than "Trade
Secrets" (as defined below), which is of
tangible or intangible value to any of the
Southern Entities and the details of which
are not generally known to the competitors
of the Southern Entities. Confidential
Information shall also include: (A) any
items that any of the Southern Entities have
marked "CONFIDENTIAL" or some similar
designation or are otherwise identified as
being confidential; and (B) all non-public
information known by or in the possession of
Employee related to or regarding any
proceedings involving or related to the
Southern Entities before the Alabama Public
Service Commission or other Entities.
(iii) "Entity" or "Entities" shall mean any
business, individual, partnership, joint
venture, agency, governmental agency, body
or subdivision, association, firm,
corporation, limited liability company or
other entity of any kind.
(iv) "Territory" shall include the States of
Georgia, Alabama, Mississippi or Florida.
(v) "Trade Secrets" shall mean information or
data of or about any of the Southern
Entities, including, but not limited to,
technical or non-technical data, formulas,
patterns, compilations, programs, devices,
methods, techniques, drawings, processes,
financial data, financial plans, product
plans or lists of actual or potential
customers or suppliers that: (A) derives
economic value, actual or potential, from
not being generally known to, and not being
readily ascertainable by proper means by,
other persons who can obtain economic value
from its disclosure or use; and (B) is the
subject of efforts that are reasonable under
the circumstances to maintain its secrecy.
The Employee agrees that trade secrets
include non-public information related to
the rate making process of the Southern
Entities and any other information which is
defined as a "trade secret" under applicable
law.
(vi) "Work Product" shall mean all tangible work
product, property, data, documentation,
"know-how," concepts or plans, inventions,
improvements, techniques and processes
relating to the Southern Entities that were
conceived, discovered, created, written,
revised or developed by Employee during the
term of his employment with the Southern
Entities.
6. Nondisclosure: Ownership of Proprietary Property.
(a) In recognition of the need of the Southern Entities to
protect their 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 Southern Entities and shall not, for any reason, in any
fashion, either directly or indirectly, use, sell, lend, lease, distribute,
license, give, transfer, assign, show, disclose, disseminate, reproduce, copy,
misappropriate or otherwise communicate any such item or information to any
third party or Entity for any purpose other than in accordance with this
Agreement or as required by applicable law: (i) with regard to each item
constituting a Trade Secret, at all times such information remains a "trade
secret" under applicable law, and (ii) with regard to any Confidential
Information, for a period of three (3) years following the Termination Date
(hereafter the "Restricted Period").
(b) Employee shall exercise best efforts to ensure the
continued confidentiality of all Trade Secrets and Confidential Information, and
he shall immediately notify the Company of any unauthorized disclosure or use of
any Trade Secrets or Confidential Information of which Employee becomes aware.
Employee shall assist the Southern Entities, 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
Southern Entities. To the greatest extent possible, any Work Product shall be
deemed to be "work made for hire" (as defined in the Copyright Act, 17 U.S.C.A.
ss. 101 et seq., as amended), and Employee hereby unconditionally and
irrevocably transfers and assigns to the Company all right, title and interest
Employee currently has or may have by operation of law or otherwise in or to any
Work Product, including, without limitation, all patents, copyrights, trademarks
(and the goodwill associated therewith), trade secrets, service marks (and the
goodwill associated therewith) and other intellectual property rights. Employee
agrees to execute and deliver to the Company any transfers, assignments,
documents or other instruments which the Company may deem necessary or
appropriate, from time to time, to protect the rights granted herein or to vest
complete title and ownership of any and all Work Product, and all associated
intellectual property and other rights therein, exclusively in the Company.
(d) Employee represents and agrees that he will keep all terms
and provisions of this Agreement completely confidential, except for possible
disclosures to his legal or financial advisors or to the extent required by law,
and Employee further agrees that he will not disclose the terms, provisions or
information contained in or concerning this Agreement to anyone, including, but
not limited to, any past, present, or prospective employee or applicant for
employment with the Company. Employee agrees that he may only disclose to
future, potential employers of Employee that he participates in a Deferred
Compensation Agreement with the Company which imposes certain restrictions on
him.
7. 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 any of the Southern
Entities 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 7(A) in any business
substantially similar or competitive with that in which the Southern Entities
were engaged during his employment.
8. Non-Interference With Customers.
(a) Employee acknowledges that in the course of employment, he
has learned about the Southern Entities' business, services, materials, programs
and products and the manner in which they are developed, marketed, serviced and
provided. Employee knows and acknowledges that the Southern Entities have
invested considerable time and money in developing their programs, agreements,
offices, representatives, services, products and marketing techniques and that
they are unique and original. Employee further acknowledges that the Southern
Entities must keep secret all pertinent information divulged to Employee and the
Southern Entities' business concepts, ideas, programs, plans and processes, so
as not to aid the Southern Entities' competitors. Accordingly, the Southern
Entities are 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 the Southern
Entities during the period of two (2) years immediately preceding the date of
Employee's termination and resignation. 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 the Southern Entities.
9. 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
payments described in Paragraph 2 are also in consideration of his covenants and
agreements contained in Paragraphs 5 through 9 hereof.
(b) Employee covenants and agrees to not obtain or work in a
Competitive Position within the Territory for a period of two (2) years from the
Termination Date.
10. Return of Materials. Upon the Employee's termination and
resignation, 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.
11. 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 Southern Entities 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 and resignation from all positions, Employee will make himself
available to any of the Southern Entities for reasonable periods and will
cooperate with its agents and attorneys as reasonably required by such Company
Matters. The Southern Entities will reimburse Employee for any reasonable
out-of-pocket expenses associated with providing such cooperation.
12. 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
any one other than his personal agents, including, but not limited to, any past,
present, or prospective employee or applicant for employment with the Southern
Entities. 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.
13. 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 Alabama, United States of America
(without giving effect to principles of conflicts of laws).
14. 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.
15. 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 0, xxxxx xx construed as
covenants and agreements independent of each other or any other contract between
the parties hereto and that the existence of any claim or cause of action by
Employee against any of the Southern Entities, whether predicated upon this
Agreement or any other contract, shall not constitute a defense to the
enforcement by Company of said covenants and agreements.
16. 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. The prevailing party shall
recover reasonable attorney fees and expenses.
17. 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 amounts may be paid shall at all times be subject to the claims of
the Company's creditors.
18. 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 Employee may be entitled or for
which he may be eligible, whether funded or unfunded, by reason of his
employment with the Company.
19. 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 Employee.
20. Compensation. Any compensation contributed 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, 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.
21. 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 ___ day of ________________, -----. "COMPANY"
ALABAMA POWER COMPANY
By:
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Its:
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"EMPLOYEE"
XXXXX XXXXXXX XXXXXX
EXHIBIT 1 to
Deferred Compensation Agreement
with Xxxxx Xxxxxxx Xxxxxx
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between XXXXX
XXXXXXX XXXXXX ("Employee") and ALABAMA POWER COMPANY, and its successor or
assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee shall
voluntarily terminate employment with the Company and resign from all positions
he holds with the Company, its parent and its affiliates, including, but not
limited to, his memberships on the Boards of Directors of the Company and The
Southern Company, on January 11, 2002;
WHEREAS, Employee and the Company have previously entered into that
certain Deferred Compensation Agreement, dated _________________, _____
("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 resignation and
desire to reach an accord and satisfaction of all claims arising from Employee's
employment, his termination of employment and his resignation from all positions
he holds with the Company, its parent and its affiliates, 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 and any claims to benefits under any and all offer letters,
employment or Deferred Compensation Agreements, or bonus, severance, workforce
reduction, early retirement, out-placement, or other similar plans sponsored by
the Company, now or hereafter recognized (collectively, "Claims"), which he ever
had or now has or may in the future have, by reason of any matter, cause or
thing arising out of his employment relationship and privileges, his serving as
an employee of the Company or the separation from his employment relationship or
affiliation as an employee of the Company as of the date of this Release against
each of the Releasees. Notwithstanding the foregoing, Employee does not release
any Claims under the Age Discrimination in Employment Act that may arise after
his execution of this Release.
2. No Assignment of Claim. Employee represents that he has not
assigned or transferred, or purported to assign or transfer, any Claims or any
portion thereof or interest therein to any party prior to the date of this
Release.
3. Compensation. In accordance with the Deferred Compensation
Agreement, the Company agrees to pay the Employee, his spouse or his estate, as
the case may be, the amounts provided in Paragraph 2 of the Agreement.
4. No Admission Of Liability. This Release shall not in any way be
construed as an admission by the Company or Employee of any improper actions or
liability whatsoever as to one another, and each specifically disclaims any
liability to or improper actions against the other or any other person, on the
part of itself or himself, its or his employees or agents.
5. Voluntary Execution. Employee warrants, represents and agrees that
he has been encouraged in writing to seek advice from anyone of his choosing
regarding this Release, including his attorney and accountant or tax advisor
prior to his signing it; that this Release represents written notice to do so;
that he has been given the opportunity and sufficient time to seek such advice;
and that he fully understands the meaning and contents of this Release. He
further represents and warrants that he was not coerced, threatened or otherwise
forced to sign this Release, and that his signature appearing hereinafter is
voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE
(21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS RELEASE.
6. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE
THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN
(7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE
UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS THAT UPON THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON HIM
AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND
ASSIGNS AND WILL BE IRREVOCABLE.
Acknowledged and Agreed To:
"COMPANY"
ALABAMA POWER COMPANY
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"
XXXXX XXXXXXX XXXXXX
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Date_____ _________
WITNESSED BY:
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Date
