Contract
Exhibit 10(c)23
THIS CONSULTING AGREEMENT
(“Agreement”) is entered into by and between GEORGIA POWER COMPANY (the
“Company”) and XXXXX X.
XXXXXXXX (“Consultant”).
WITNESSETH
WHEREAS, the Company desires
to retain Consultant to provide certain services to the Company, and Consultant
desires to provide such services to the Company, all subject to the terms and
conditions set forth herein.
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
Consultant.
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 commence on April 1, 2009 and shall expire on
December 31, 2010 (“Term”), unless the Agreement is terminated prior to the
expiration of the Term pursuant to Paragraph 2(b), (c) or (d)
below.
(b) Notwithstanding
Paragraph 2(a), Consultant may terminate this Agreement at any time by providing
a thirty (30) day written notice of intent to terminate. If 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 and the Company shall have no further obligations under this
Agreement.
(c) Notwithstanding
Paragraph 2(a), the Company may immediately terminate the Agreement at any time
for Cause (as defined below). If the Company terminates this Agreement pursuant
to this Paragraph 2(c), Consultant shall be entitled to keep the Retainer Fees
under Paragraph 5 hereof which have already been paid and the Company shall have
no further obligations under this Agreement. “Cause” or “Termination for Cause”
shall include the following conditions as solely determined by the
Company:
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 his by the Company without reasonable excuse;
2. Breach. Consultant
commits any material breach or repeats or continues (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 as solely determined by the Company:
(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, 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 a Company worksite in a state of intoxication or otherwise being found in
possession. on Company property 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 engagement; or
(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 have no further obligations under this
Agreement.
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 from time to time. Consultant shall be
available to provide Consulting Services for the Company for no more than four
(4) days during each calendar month during the Term of this Agreement.
Consultant must obtain prior written approval from an authorized officer of 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
Consultant.
In the
performance of this Agreement, both Consultant and the Company will be acting in
their own separate capacities and not as agents, employees, partners, joint
venturers or associates of one another, It is expressly understood and agreed
that Consultant is an independent contractor of the Company in all manners and
respects. The parties further agree that:
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(a) Consultant
is not authorized to bind the Company to any liability or obligation or to
represent that Consultant has any such authority.
(b) Consultant
shall obtain and maintain (at Consultant’s own cost) any required insurance or
other protection required for the performance of the services under this
Agreement.
(c) Consultant
shall be solely and exclusively responsible and liable for all expenses, costs,
liabilities, assessments, taxes, maintenance, insurance, undertakings and other
obligations incurred by Consultant at any time and “for any reason as a result
of this Agreement or the performance of services by Consultant. However,
Consultant may be reimbursed for reasonable out of pocket expenses where prior
approval has been received from the either the Company’s Chief Executive or
Chief Financial Officer.
(d) Consultant
shall be solely and exclusively responsible for obtaining and providing (at
Consultant’s own cost) whatever computer, training, software or other equipment
Consultant believes is necessary to complete the services required under this
Agreement.
(e) Consultant
shall complete the services required under this Agreement according to
Consultant’s 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 Company, except as to the results of the work.
(f) Consultant
shall not be subject to the Company’s employee personnel policies and
procedures. Other than as a retired employee of the Company, Consultant also
shall not be eligible to receive any employee benefits or participate in any
employee benefit plan sponsored by the Company, 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.
(g) The
Company and Consultant acknowledge and agree that Consultant shall not provide
the services to Company on a full-time basis. Except to the extent restricted
under the Separation Agreement, the Consultant may engage in other activities
for and on behalf of other clients during the Term of this
Agreement.
5. Retainer.
As
payment for the services rendered pursuant to this Agreement, the Company shall
pay, and Consultant shall accept, a retainer fee in the amount of Fifty Thousand
Dollars and No Cents ($50,000.00) (the “Retainer Fee”) per quarter. The first
payment of the Retainer Fee shall be payable on or before April 10, 2009 and
shall continue to be paid each quarter through December 31, 2010, the timing of
each payment occurring within the Company’s first ten (10) business days during
the applicable quarter.
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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
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.
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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 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 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. §§ 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.
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(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,
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
and covenants 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 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.
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(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, he 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 except as otherwise permitted under this
Agreement or authorized by the Company in writing, or any other violation of
Section 6 or 7, would be wrongful and cause immediate, significant, continuing
and irreparable injury and damage to Company that is not fully compensable by
monetary damages. Should Consultant breach or threaten to breach any provision
of Sections 6 and 7, the Company shall be entitled to obtain immediate relief
and remedies in a court of competent jurisdiction (including but not limited to
damages, preliminary or permanent injunctive relief and an accounting for all
profits and benefits arising out of Consultant’s breach), cumulative of and in
addition to any other rights or remedies to which Company 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 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:
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|
If
to Consultant:
Xxxxx
X. Xxxxxxxx
000
Xxxxxxxxx Xx.
Xxxxxxx,
XX 00000
|
If
to the Company:
Xxxxxx
X. Xxxxxx
Xx.
VP & General Counsel
Georgia
Power
000
Xxxxx XxXxxx Xxxx.
Xxxxxxx,
XX 00000
|
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. Governing
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Georgia.
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. Consultant acknowledges and
agrees that the covenants and agreements contained in this Agreement shall be
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.
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17. 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.
18. 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.
19. Entire
Agreement.
This
Agreement and the Separation and Release Agreement embodies the entire Agreement
of the parties and supersedes all prior agreements between the parties hereto
relating to the subject matter hereof. This Agreement may not be modified or
amended except by a written instrument signed by both Employee and an authorized
representative of the Company.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement this 18th day of March,
2009.
|
“COMPANY”
GEORGIA
POWER COMPANY
|
“CONSULTANT” |
| By: /s/Xxxxxx X. Xxxxxx | /s/Xxxxx X. Xxxxxxx |
| Its: Sr. Vice President |
Witnessed
By: /s/Xxxxxx Xxxxxxx
|

60;
