Exhibit 10.1
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") made and entered into by and
between GEORGIA POWER COMPANY (the "Company") and XXXXXXX X. XXXXXX, III
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
thirty-five (35) 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 separate from service with the Company on
March 19, 2006;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to such separation from service, and desire to
reach an accord and satisfaction of all claims arising from Employee's
employment and his separation from service, 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. Separation from Service. Upon Employee's execution of this
Agreement, voluntary separation from service with the Company on March 19, 2006
(the Employee's "Separation Date"), execution of the Release attached hereto as
Exhibit 1 on his Separation Date, and allowing such Release to become effective,
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, upon separation of service
and constitutes good and complete consideration for his Release attached hereto
as Exhibit 1, those non-disclosure and non-interference obligations under
Paragraphs 6, 7, 8, 9 and 10 hereof and all other obligations and covenants of
Employee contained herein, including, but not limited to, Paragraph 4.
Notwithstanding anything in this Paragraph 1 to the contrary, this Agreement is
not intended to impair any rights Employee presently has under The Southern
Company Pension Plan, The Southern Company Employee Stock Ownership Plan, The
Southern Company Employee Savings Plan, The Southern Company Deferred
Compensation Plan, or The Southern Company Omnibus Incentive Compensation Plan.
Employee agrees that this Agreement provides him certain benefits to which he
would not otherwise be entitled.
2. Severance Payment to Employee.
(a) Upon fulfilling the eligibility requirements set forth in Paragraph
1 hereof, the Company shall pay to Employee an amount equal to Seven Hundred
Eighty-Nine Thousand Four Hundred Dollars and No Cents ($789,400.00) as soon as
practicable following the Separation Date. 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
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amount described in this Paragraph 2(a) shall be paid in a lump sum as soon as
practicable after the occurrence of such an event. The lump sum shall be equal
to the present value of any such unpaid amount based on an effective interest
rate of 7.5% per annum (0.6045% per month). In the event Employee dies before
receiving payment of the amount described in this Paragraph 2(a) hereof, such
amount shall be paid to Employee's spouse, if living, or if not, to the
Employee's estate. In accordance with Paragraph 20, Employee shall be
responsible for all state and federal income taxes and his share of FICA taxes
owed on the foregoing amount, and Company shall make appropriate withholding of
these amounts.
(b) Notwithstanding the foregoing, in the event Employee engages in
Misconduct, as defined below, before or after Employee's Separation 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 with respect to any amounts under this Agreement. For
purposes of this Paragraph 2(b), "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.
3. Publicity; No Disparaging Statement. Except as otherwise provided in
Paragraph 13 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.
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4. No Employment. Except as otherwise provided in Paragraph 5 hereof,
Employee agrees that he shall not seek re-employment as an employee, leased
employee or independent contractor with the Company or The Southern Company or
any of its subsidiaries or affiliates (individually, a "Southern Entity", and
collectively, the "Southern Entities"), for a period of twenty-four (24) months
following the effective date 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, leased
employee or independent contractor for a period of twenty-four (24) months
following the effective date 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 separation from
service with the Company on his Separation Date and effectiveness of the Release
attached hereto as Exhibit 1, Employee agrees to provide consulting services to
the Company as an independent contractor in accordance with the Consulting
Agreement attached hereto as Exhibit 2.
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 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 Entity which are substantially similar to the
services Employee participated in or directed while
employed by the Company or any other Southern Entity.
(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
any other Southern Entity, 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
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by or in the possession of Employee related to or
regarding any proceedings involving or related to the
Southern Entities before the Georgia Public Service
Commission or any other federal, state or local
governmental regulatory agency.
(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 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 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
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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 or any other Southern Entity.
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 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
Separation Date (hereafter the "Restricted Period").
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(b) Employee shall exercise best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information, and he shall
immediately notify the Company of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of which Employee becomes aware.
Employee shall assist the Company, to the extent necessary, in the protection of
or procurement of any intellectual property protection or other rights in any of
the Trade Secrets or Confidential Information.
(c) All Work Product shall be owned exclusively by the Company. To the
greatest extent possible, any Work Product shall be deemed to be "work made for
hire" (as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et seq., as
amended), and Employee hereby unconditionally and irrevocably transfers and
assigns to the Company all right, title and interest Employee currently has or
may have by operation of law or otherwise in or to any Work Product, including,
without limitation, all patents, copyrights, trademarks (and the goodwill
associated therewith), trade secrets, service marks (and the goodwill associated
therewith) and other intellectual property rights. Employee agrees to execute
and deliver to the Company any transfers, assignments, documents or other
instruments which the Company may deem necessary or appropriate, from time to
time, to protect the rights granted herein or to vest complete title and
ownership of any and all Work Product, and all associated intellectual property
and other rights therein, exclusively in the Company.
(d) Employee represents and agrees that he will keep all terms and
provisions of this Agreement completely confidential, except for possible
disclosures to his legal advisors or to the extent required by law, and Employee
further agrees that he will not disclose the terms, provisions or information
contained in or concerning this Agreement to anyone, including, but not limited
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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 Separation Date, was an exempt employee
of the Company or any of its subsidiaries, or was an officer of any of the other
Southern Entities, to leave or cease such employment for any reason whatsoever;
or (B) hire or engage the services of any such person described in Paragraph
8(A) in any business substantially similar or competitive with that in which the
Southern Entities were engaged during his employment.
9. Non-Interference With Customers.
(a) Employee acknowledges that in the course of employment, he has
learned about Company's business, services, materials, agreements, 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 business concepts, ideas,
services, materials, programs, agreements, products, processes and marketing
techniques and that they are unique and original. Employee further acknowledges
that the Company must keep secret all pertinent information divulged to Employee
and Company's business concepts, ideas, services, materials, programs,
agreements, products, plans, processes, and marketing techniques so as not to
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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 Separation Date, he will not, on his own behalf or on behalf of
any Entity, solicit, direct, appropriate, call upon, or initiate communication
or contact with any Entity or any representative of any 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 Separation Date. The restrictions set forth in this section shall apply only
to Entities with whom Employee had actual contact during the two (2) years prior
to the Separation Date 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 payments described in
Paragraph 2 are also in consideration of his covenants and agreements contained
in Paragraphs 6 through 10 hereof.
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(b) In the event Employee and the Company do not enter into the
Consulting Agreement attached hereto as Exhibit 2, Employee covenants and agrees
not to obtain or work in a Competitive Position within the Territory for a
period of two (2) years from the Separation Date.
11. Return of Materials. Upon the Employee's separation from service,
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.
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, 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 the Separation Date,
Employee will make himself available to the Company for reasonable periods
consistent with his future employment, if any, by other Entities and will
cooperate with its agents and attorneys as reasonably required by such Company
Matters. The Company will reimburse Employee for any reasonable out-of-pocket
expenses associated with providing such cooperation.
13. 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
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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
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.
14. 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 Georgia, United States of America
(without giving effect to principles of conflicts of laws).
15. 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.
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16. Severability. The unenforceability or invalidity of any particular
provision of this Agreement shall not affect its other provisions, and to the
extent necessary to give such other provisions effect, they shall be deemed
severable. The judicial body interpreting this Agreement shall be authorized and
instructed to rewrite any of the sections which are enforceable as written in
such a fashion so that they may be enforced to the greatest extent legally
possible. Employee acknowledges and agrees that the covenants and agreements
contained in this Agreement, including, without limitation, the covenants and
agreements contained in Xxxxxxxxxx 0, 0, 0, 0 xxx 00, xxxxx xx construed as
covenants and agreements independent of each other or any other contract between
the parties hereto and that the existence of any claim or cause of action by
Employee against Company, whether predicted upon this Agreement or any other
contract, shall not constitute a defense to the enforcement by Company of said
covenants and agreements.
17. 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.
18. Unsecured General Creditor. The Company shall neither reserve nor
specifically set aside funds for the payment of its obligations under this
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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.
19. 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.
20. 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.
21. 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 or The Southern Company Pension Plan. Payments
under this Agreement shall not be considered wages, salaries or compensation
under any other employee benefit plan.
22. 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.
23. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
this 4th day of January, 2006.
"COMPANY"
GEORGIA POWER COMPANY
By: /s/Xxxxxxx Xxxxxxx
President & CEO
"EMPLOYEE"
XXXXXXX X. XXXXXX, III
/s/Xxxxxxx X. Xxxxxx, III
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EXHIBIT 1 to
Separation Agreement
with Xxxxxxx X. Xxxxxx, III
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between
XXXXXXX X. XXXXXX, III ("Employee") and GEORGIA POWER COMPANY, and its successor
or assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Georgia Power Company shall terminate on March 19, 2006;
WHEREAS, Employee and the Company have previously entered into that
certain Separation Agreement, dated January ___, 2006 ("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 separation from service and
desire to reach an accord and satisfaction of all claims arising from Employee's
employment, and his separation from service, 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 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. Claims Not Released. Employee is not releasing claims to benefits
that he is already entitled to receive under The Southern Company Pension Plan,
The Southern Company Employee Stock Ownership Plan, The Southern Company
Employee Savings Plan, The Southern Company Omnibus Incentive Compensation Plan
or under any workers' compensation laws. However, Employee understands and
acknowledges that nothing herein is intended to or shall be construed to require
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the Company to institute or continue in effect any particular plan or benefit
sponsored by the Company and the Company hereby reserves the right to amend or
terminate any of its benefit programs at any time in accordance with the
procedures set forth in such plans.
3. 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.
4. 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.
5. 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.
6. 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.
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7. 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"
GEORGIA 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"
XXXXXXX X. XXXXXX, III
------------------ ----------------------------
Date____
WITNESSED BY:
--------------------------------------------
--------------------------------------------
Date
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EXHIBIT 2
to Separation Agreement
with Xxxxxxx X. Xxxxxx, III
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into by and between
GEORGIA POWER COMPANY (the "Company") and XXXXXXX X. XXXXXX, III ("Consultant").
W I T N E S S E T H
WHEREAS, The Southern Company ("Southern") and the Company conduct
business in the electric utility industry;
WHEREAS, Consultant has expertise with respect to this industry and
about Southern and the Company;
WHEREAS, the Company desires to retain certain consulting services of
Consultant, and Consultant desires to provide such consulting services to the
Company in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. Engagement as an Independent Contractor. The Company hereby agrees
to engage Consultant as an independent contractor, and Consultant hereby accepts
such engagement as an independent contractor, upon the terms and conditions set
forth in this Agreement.
2. Term.
(a) The term of this Agreement shall be for three (3) years, commencing
on March 20, 2006 and expiring on March 19, 2009 ("Term"), unless the Agreement
is terminated prior to the expiration of the Term pursuant to Paragraph 2(b),
(c), or (d) below. Each twelve-month period, commencing on March 20, 2006 and
each anniversary thereafter during the Term of this Agreement, shall be
considered, for purposes of this Agreement, a "Contract Year."
(b) Notwithstanding Paragraph 2(a), either party may terminate this
Agreement at any time by providing a thirty (30) day written notice of intent to
terminate. If either the Company or Consultant terminates this Agreement
pursuant to this Paragraph 2(b), Consultant shall be entitled to keep the
Retainer Fees under Paragraph 5 hereof which have already been paid to
Consultant, and the Company shall have no further obligation to pay any unpaid
Retainer Fees under this Agreement to Consultant.
(c) Notwithstanding Paragraphs 2(a) and (b), the Company may
immediately terminate the Agreement at any time for Cause (as defined below). In
this case, Consultant shall be entitled only to his Pro Rata Compensation
through the date of the termination of this Agreement, and Consultant shall
return to the Company the amount of any paid, but unearned, Retainer Fee. For
purposes of the preceding sentence, Pro Rata Compensation shall mean the sum of
(i) any Retainer Fees paid to Consultant for Contract Years prior to the
Contract Year in which the termination occurs, and (ii) the greater of (A) the
Retainer Fee set forth in Paragraph 5 for the Contract Year in which the
termination occurs multiplied by a fraction, the numerator of which is the whole
months expired within such Contract Year and the denominator of which is 12, or
(B) the Retainer Fee set forth in Paragraph 5 for the Contract Year in which the
termination occurs multiplied by a fraction, the numerator of which is the
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number of days the Consultant has provided Consulting Services to the Company
within such Contract Year (as mutually agreed upon by the Company and
Consultant) and the denominator of which is 40. The Company shall have no
further obligations with respect to the payment of any compensation under this
Agreement after the termination of this Agreement except as provided in this
Paragraph 2. "Cause" or "Termination for Cause" shall include the following
conditions:
1. Failure to Discharge Duties. Consultant willfully neglects or
refuses to discharge his duties hereunder or refuses to comply with any
lawful or reasonable instructions given to him by the Company without
reasonable excuse;
2. Breach. Consultant shall have committed any material breach or
repeated or continued (after written warning) any breach of his obligations
hereunder;
3. Gross Misconduct. The Consultant is guilty of gross misconduct. For
the purposes of this Agreement, the following acts shall constitute gross
misconduct:
(i) Any act involving fraud or dishonesty or breach of
appropriate regulations of competent authorities in relation to
trading or dealing with stocks, securities, investments and the like;
(ii) The carrying out of any activity or the making of any
statement which would prejudice and/or reduce the good name and
standing of the Company, The Southern Company or any of its affiliates
or would bring any one of these into contempt, ridicule or would
reasonably shock or offend any community in which these companies are
located;
(iii) Attendance at work in a state of intoxication or otherwise
being found in possession at his place of work of any prohibited drug
or substance, possession of which would amount to a criminal offense;
(iv) Assault or other act of violence against any employee of the
Company or other person during the course of his employment; or
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(v) Conviction of any felony or misdemeanor involving moral
turpitude.
(d) If Consultant dies during the Term of this Agreement, the
Agreement shall terminate, and the Company shall pay all unpaid Retainer
Fees under Paragraph 5 hereof to Consultant's spouse, if living, or if not,
to his estate.
3. Duties. Unless otherwise detailed in a specific letter or
memorandum, Consultant shall manage, perform, and provide professional
consulting services and advice ("Consulting Services") as the Company may
request in writing from time to time. Consultant shall be available to provide
Consulting Services for the Company for forty (40) days during each Contract
Year during the Term of this Agreement. Consultant must obtain prior written
approval from the Company before Consultant contracts with or in any other way
employs any agents or subcontractors to perform work in any way related to this
Agreement. Consultant shall cause its agents, employees and subcontractors to
perform such duties in a professional and competent manner which shall be
consistent with the Company's Code of Ethics. Additionally, during the Term of
this Agreement, Consultant agrees to promote the best interests of the Company
and to take no actions that in any way damage the public image or reputation of
the Company or its affiliates or to knowingly assist, in any way, a competitor
of the Company.
4. Consultant as an Independent Contractor.
(a) The parties acknowledge and intend that the relationship of
Consultant, and its agents, employees and subcontractors, to the Company under
this Agreement shall be that of independent contractors. In performing his
duties under this Agreement, Consultant shall cause the services required to be
completed according to his own means and methods of work which shall be in the
exclusive charge and control of Consultant and which shall not be subject to the
control or supervision of the Company, except as to the results of his work.
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Consultant shall determine his own working hours and schedule for his agents,
employees and subcontractors and shall not be subject to the Company's personnel
policies and procedures except for the Company's Code of Ethics.
Consultant shall be entirely and solely responsible for his actions or
in-actions and the actions or in-actions of his agents, employees or
subcontractors, if any, while performing services hereunder. Consultant agrees
that neither it nor any of his agents, employees or subcontractors shall, in any
form or fashion, maintain, hold out, represent, state or imply to any other
individual or entity that an employer/employee relationship exists between the
Company and Consultant, his agents and employees, or between the Company and any
subcontractor or its agents and employees, and neither Consultant nor his
agents, employees or subcontractors are granted nor shall they represent that
they are granted any right or authority to make any representation or warranty
or assume or create any obligation or responsibility, express or implied, for,
on behalf of or in the name of the Company, to incur debts for the Company or to
bind the Company in any manner whatsoever.
Additionally, Consultant hereby waives and relinquishes any right of
subrogation it might have against the Company under the provisions of the
Workers' Compensation Act of Georgia on account of any injury to his employees
or employees of his subcontractors, if any, caused in whole or in part by any
negligence of the Company. Consultant further agrees that it will require his
Workers' Compensation insurer, if any, to likewise waive and relinquish such
subrogation rights and furnish evidence of such waiver to the Company.
(b) Consultant agrees that neither his agents, employees or
subcontractors nor the agents or employees of his subcontractors shall be
5
eligible to participate in any employee benefit plan sponsored by the Company or
its affiliates, 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 the Company for its employees.
5. Compensation.
(a) On March 20, 2006, March 20, 2007, and March 20, 2008, the Company
shall pay to Consultant an annual retainer fee equal to Two Hundred Thousand
Dollars and No Cents ($200,000.00) ("Retainer Fee"), as consideration for the
Consulting Services to be provided by Consultant each Contract Year during the
Term of this Agreement pursuant to Paragraph 3 hereof. In addition, the Company
shall pay or reimburse the Consultant's (i) monthly Atlanta Athletic Club dues
for each Contract Year during the Term of this Agreement to be paid following
the end of each Contract Year upon presentation of the previous twelve monthly
bills and (ii) executive financial planning fees of Six Thousand Dollars and No
Cents ($6,000.00) for the Contract Years ending March 19, 2008 and March 19,
2009 to be paid on March 20, 2007 and March 20, 2008, respectively. Consultant
shall be reimbursed by the Company for reasonable expenses incurred while
conducting work as a consultant under this Agreement up to a maximum of Five
Thousand Dollars ($5,000.00) for each Contract Year during the Term of this
Agreement. In order to be reimbursed pursuant to the preceding sentence, the
expenses must be approved by the Company in advance. With respect to expenses
exceeding Fifty Dollars ($50.00), Consultant must provide a receipt evidencing
such expenses to the Company in order to be reimbursed pursuant to this
Paragraph 5(a).
(b) Consultant hereby recognizes, covenants and agrees that, except as
specifically set forth to the contrary in this Agreement, Consultant shall be
solely and exclusively responsible and liable for all expenses, costs,
liabilities, assessments, taxes, maintenance, insurance, undertakings and other
6
obligations incurred by Consultant, his agents, employees and all subcontractors
at any time and for any reason as a result of this Agreement or the performance
of services by Consultant including, but not limited to, withholding taxes,
social security taxes, unemployment taxes, sales/use taxes and workers'
compensation insurance premiums.
6. Business Protection Provision Definitions. For purposes of
Paragraphs 6, 7 and 8, the following terms shall have the following meanings:
(a) "Confidential Information" shall mean the proprietary or
confidential data, information, documents or materials (whether oral, written,
electronic or otherwise) belonging to or pertaining to the Company, Southern 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 Consultant, his agents and employees related to or regarding any proceedings
involving or related to the Southern Entities before the Georgia Public Service
Commission or other Entities.
(b) "Trade Secrets" shall mean information or data of or about any of
the Southern Entities, including, but not limited to, technical or non-technical
data, formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists of
actual or potential customers or suppliers that: (A) derives economic value,
actual or potential, from not being generally known to, and not being readily
7
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. Consultant agrees
that trade secrets include non-public information related to the rate making
process of the Southern Entities and any other information which is defined as a
"trade secret" under applicable law.
(c) "Work Product" shall mean all tangible work product, property,
data, documentation, "know-how," concepts or plans, inventions, improvements,
techniques and processes relating to the Southern Entities that were conceived,
discovered, created, written, revised or developed by Consultant for the Company
or any of the Southern Entities or their clients or Customers or by using any
Southern Entity's time, personnel, facilities, equipment, knowledge,
information, resources or material.
(d) "Competitive Position" shall mean any employment or independent
contractor arrangement with any Customer whereby Consultant will serve such
Customer in the same or substantially similar capacity as that which it performs
for the Company or any other Southern Entity pursuant to the terms of this
Agreement.
(e) "Customer" shall have the meaning ascribed by Section 8 hereof.
(f) "Entity" shall mean any business, individual, partnership, joint
venture, agency, governmental agency, body or subdivision, association, firm,
corporation, limited liability company or other entity of any kind.
7. Nondisclosure: Ownership of Proprietary Property.
(a) Nondisclosure. In recognition of the need of the Company to protect
its legitimate business interests, Consultant hereby covenants and agrees that
Consultant, his agents, employees and subcontractors shall regard and treat all
Trade Secrets and all Confidential Information as strictly confidential and
8
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: (A) with regard to each item
constituting all or any portion of a Trade Secret, at all times such information
remains a "trade secret" under applicable law; and (B) with regard to any
Confidential Information, at all times during this Agreement and for a period of
three (3) years following the expiration or termination of this Agreement for
any reason.
(b) Allowed Disclosures. Notwithstanding Paragraph 7(a) hereof,
Consultant may disclose Confidential Information and Trade Secrets to those of
his agents, employees and subcontractors who need to know such particular Trade
Secrets or Confidential Information in order for Consultant to perform his
obligations under this Agreement. Consultant shall require each and every person
to whom it discloses any Trade Secrets or Confidential Information to execute
confidentiality agreements in a form reasonably acceptable to the Company and
shall use his best efforts to cause such persons to comply with the restrictions
contained in such confidentiality agreements. Consultant shall remain
responsible for every person to whom it provides Trade Secrets or Confidential
Information.
(c) Notification of Unauthorized Disclosure. Consultant shall exercise
his best efforts and shall cause his agents, employees and subcontractors to
exercise their best efforts to ensure the continued confidentiality of all Trade
Secrets and Confidential Information of the Company or any of the Southern
Entities known by, disclosed or made available to Consultant, whether in
connection with this Agreement or any other past or present relationship with
9
the Company or any of the Southern Entities. Consultant shall immediately notify
the Company of any unauthorized disclosure or use of any Trade Secrets or
Confidential Information of which Consultant becomes aware. Consultant shall
assist the Company and any of the other Southern Entities, to the extent
necessary, in the procurement or protection of the Southern Entities' rights to
or in any Work Product, Trade Secrets or Confidential Information.
(d) Ownership. All Work Product shall be owned exclusively by 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. xx.xx. 101 et
seq., as amended), and Consultant hereby unconditionally and irrevocably
transfers and assigns and shall cause his agents, employees and subcontractors
to unconditionally and irrevocably transfer and assign to the Company all
rights, title and interest Consultant or such persons currently have or may have
by operation of law or otherwise in or to any Work Product, including, without
limitation, all patents, copyrights, trademarks (and the goodwill associated
therewith), trade secrets, service marks (and the goodwill associated therewith)
and other Work Product rights. Consultant agrees to execute and deliver and to
cause his agents, employees and subcontractors 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.
(e) Return of Materials. Immediately upon termination of this
Agreement, or at any point prior to or after that time upon the specific request
of the Company, Consultant shall return and shall cause his agents, employees
and subcontractors to return to the Company all written or descriptive materials
of any kind belonging or relating to the Company or its affiliates, including,
10
without limitation, any Work Product, Confidential Information and Trade
Secrets, in Consultant's or such persons' possession or control. The
confidentiality obligations described in this Agreement shall continue until
their expiration under the terms of this Agreement.
(f) Public Statements and Press Releases. The Company shall issue all
public statements concerning the work hereunder. Neither Consultant nor his
agents, employees or subcontractors shall issue any press releases, publications
or other public communications describing or concerning any acknowledged project
of the Company or any of the other Southern Entities without the prior written
consent of the Company.
8. Non-Interference with Employees, Customers and Business.
(a) Consultant covenants and agrees that during the Term of this
Agreement, and for a period of three (3) years thereafter, he shall not, nor
shall his agents, employees or subcontractors either directly or indirectly, for
himself or themselves or in conjunction with or on behalf of any Entity: (i)
solicit, divert or appropriate or attempt to solicit, divert or appropriate any
customer or actively sought prospective customer of the Company or any other
Southern Entity whom Consultant, his agents, employees or subcontractors, has
solicited, provided service to or otherwise had significant contact with while
providing services to the Company or any other Southern Entity pursuant to this
Agreement (hereinafter "Customer"); (ii) refer, recommend or otherwise suggest
to any Customer the services of any Entity other than the Company or any other
Southern Entity with respect to those types of services which the Southern
Entities are regularly in the business of providing; (iii) refer, recommend or
otherwise suggest to any Entity to provide or seek to provide services to any
Customer with respect to those types of services which the Southern Entities are
in the business of providing; (iv) seek or accept a Competitive Position with a
Customer; or (v) solicit, divert or appropriate or attempt to solicit, divert or
11
appropriate any employee or other contractor of the Company or any other
Southern Entity. Consultant agrees to require each of his agents, employees or
subcontractors who will perform services pursuant to this agreement for a
Customer to execute a non-interference with employees, customers and business
agreement in a form reasonably acceptable to the Company and shall use his best
efforts to cause such persons to comply with such agreement.
(b) Consultant covenants and agrees that for a period of two (2) years
following the expiration or termination of this Agreement within the States of
Georgia, Alabama, Mississippi and Florida, it shall not obtain or work in any
employment, consulting, advisory, directorship, agency, promotional or
independent contractor arrangement or position with any person or Entity engaged
wholly or in material part in the business that the Company is engaged in
whereby the Consultant 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 Consultant participated in or directed for the Company, The Southern
Company or any of their respective affiliates during the Term of this Agreement.
(c) Consultant and the 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
Consultant's skills are such that it could easily find alternative, commensurate
work in his field which would not violate any of the provisions of this
Agreement.
9. Remedies. The parties represent and agree that any disclosure or use
of any Trade Secrets or Confidential Information by Consultant, his agents,
employees or subcontractors except as otherwise authorized by the Company in
writing, or any other violation of Paragraphs 6, 7 and 8 would be wrongful and
12
cause immediate, significant, continuing and irreparable injury and damage to
the Company and the other Southern Entities that is not fully compensable by
monetary damages. Should Consultant breach or threaten to breach any provision
of Paragraphs 6, 7 and 8, the Company and any other Southern Entity shall be
entitled to obtain immediate relief and remedies in a court of competent
jurisdiction (including but not limited to damages, preliminary or permanent
injunctive relief and an accounting for all profits and benefits arising out of
Consultant's breach), cumulative of and in addition to any other rights or
remedies to which the Company and the other Southern Entities may be entitled by
this Agreement, at law or in equity.
10. Laws, Regulations and Public Ordinances. Consultant shall comply
with all federal, state, and local statutes, regulations, and public ordinances
governing his work hereunder and shall indemnify, defend and hold the Company
and Southern harmless from any and all liability, damage, cost, fine, penalty,
fee and expense arising from Consultant's failure to do so.
11. Notices. All notices required, necessary or desired to be given
pursuant to this Agreement shall be in writing and shall be effective when
delivered or on the third day following the date upon which such notice is
deposited, postage prepaid, in the United States mail, certified return receipt
requested, and addressed to the party at the address set forth below:
If to Consultant: If to Company:
Xxxxxxx X. Xxxxxx, III Xxxxxxx X. Xxxxxxx
X.X. Xxx 00 Xxxxx Xxxxxxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000 Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
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12. Indemnification. Consultant shall and does hereby expressly agree
to indemnify and hold harmless the Company, its officers, directors,
shareholders, employees, parent and affiliates against any and all suits,
actions, judgments, costs (including, without limitation, all court costs and
attorneys' fees), losses, damages, or claims of whatever nature arising out of
or related to any acts or omissions of Consultant, his agents, employees or
subcontractors, including, but not limited to, any injuries to or deaths of
persons or any damage to property or equipment. Consultant further agrees to
defend any and all such actions in any court or in arbitration.
13. Waiver of Breach. The waiver by any party to this Agreement of a
breach of any provision, section or paragraph of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of the same, or of
a different provision, section or paragraph, by any party hereto.
14. Assignment by Consultant. Consultant may not assign, transfer or
subcontract any of his rights or obligations under this Agreement to any party
without the prior written consent of the Company. Consultant's obligations under
this Agreement shall be binding on Consultant's successors and permitted
assigns. Any assignment, transfer or subcontracting in violation of this
provision shall be null and void.
15. Survival. Notwithstanding any expiration or termination of this
Agreement, the provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18
and 19 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.
14
16. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
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. Consultant acknowledges and agrees that the covenants and agreements
contained in this Agreement, including, without limitation, the covenants and
agreements contained in Xxxxxxxxxx 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
Consultant against the Company, whether predicted upon this Agreement or any
other contract, shall not constitute a defense to the enforcement by the Company
of said covenants and agreements.
18. Interpretation. Should a provision of this Agreement require
judicial interpretation, it is agreed that the judicial body interpreting or
construing the Agreement shall not apply the assumption that the terms hereof
shall be more strictly construed against one party by reason of the rule of
construction that an instrument is to be construed more strictly against the
party which itself or through its or his agents prepared the agreement, it being
agreed that all parties and/or their agents have participated in the preparation
hereof.
19. Entire Agreement. This Agreement embodies the entire agreement of
the parties and supersedes all prior agreements between the parties hereto
relating to the subject matter hereof. It may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this ____ day of ________________, 2006.
"COMPANY" "CONSULTANT"
GEORGIA POWER COMPANY XXXXXXX X. XXXXXX, III
By:________________________________ ___________________________
Its:_______________________________ Witnessed By:______________
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