Exhibit 10.37
AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT ("Agreement")
made and entered into by and between The Southern Company ("Southern"), Southern
Company Services, Inc. (the "Company") and Xx. Xxxxx Xxxxx Xxxxxxxx ("Xx.
Xxxxxxxx") (hereinafter collectively referred to as the "Parties") is effective
July 10, 2000. This Agreement amends and restates the Change in Control
Agreement entered into by the Parties, effective and executed on July 8, 1999.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xx. Xxxxxxxx is the President and Chief Operating Officer of
Southern;
WHEREAS, the Parties entered into a Change in Control Agreement
effective July 8, 1999 (the "July 8, 1999 Agreement") to provide to Xx. Xxxxxxxx
certain severance benefits under certain circumstances following a change in
control (as defined herein) of Southern or the Company;
WHEREAS, pursuant to Section 6(d) of the July 8, 1999 Agreement, the
Parties may amend the July 8, 1999 Agreement by written agreement;
WHEREAS, the Parties wish to enter into this Amended and Restated
Change in Control Agreement pursuant to the provisions of such Section 6(d), to
(i) change certain references from normal market bonus to target bonus, (ii)
clarify that an initial public offering and a spin-off of the Company does not
constitute a "change in control" under the Agreement, (iii) change references
from the "Productivity Improvement Plan" to the "Executive Productivity
Improvement Plan," (iv) add Southern Energy, Inc. as a company released in the
waiver and release attached hereto, and (v) certain other technical and
miscellaneous modifications;
NOW, THEREFORE, in consideration of the premises, and the agreements of
the parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings: (a) "Annual
Compensation" shall mean Xx. Xxxxxxxx'x highest annual base
salary rate for the twelve (12) month period immediately
preceding the date of the Change in Control plus target bonus.
(b) "Beneficial Ownership" shall mean beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Exchange Act.
(c) "Business Combination" shall mean a reorganization, merger
or consolidation of Southern or sale or other disposition of all or
substantially all of the assets of Southern.
(d) "Change in Control" shall mean any of the following:
(i) The Consummation of an acquisition by any Person
of Beneficial Ownership of 20% or more of Southern's Voting
Securities; provided, however, that for purposes of this
Paragraph 1.(d)(i), the following acquisitions of Southern's
Voting Securities shall not constitute a Change in Control:
(A) any acquisition directly from Southern;
(B) any acquisition by Southern;
(C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by Southern or any
Southern Subsidiary;
(D) any acquisition by a qualified pension plan or
publicly held mutual fund; (E) any acquisition by a Group
composed exclusively of employees of Southern, or any
Southern Subsidiary;
(F) any acquisition by Xx. Xxxxxxxx or any Group of
which Xx. Xxxxxxxx is a party; or
(G) any Business Combination which would not otherwise
constitute a change in control because of the application of
clauses (A), (B) and (C) of Paragraph 1.(d)(iii); (ii) A
change in the composition of the Southern Board whereby
individuals who constitute the Incumbent Board cease for any
reason to constitute at least a majority of the Southern
Board;
(iii) Consummation of a Business Combination,
provided, however, that such a Business Combination shall not
constitute a Change in Control if all three (3) of the
following conditions are met:
(A) all or substantially all of the
individuals and entities who held Beneficial
Ownership, respectively, of Southern's Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
65% or more of the combined voting power of the
Voting Securities of the corporation surviving or
resulting from such Business Combination, (including,
without limitation, a corporation which as a result
of such transaction holds Beneficial Ownership of all
or substantially all of Southern's Voting Securities
or all or substantially all of Southern's assets)
(such surviving or resulting corporation to be
referred to as "Surviving Company"), in substantially
the same proportions as their ownership, immediately
prior to such Business Combination, of Southern's
Voting Securities;
(B) no Person (excluding any corporation
resulting from such Business Combination, any
employee benefit plan (or related trust) of Southern,
any Southern Subsidiary or Surviving Company, Xx.
Xxxxxxxx, any Group of which Xx. Xxxxxxxx is a party,
any Group composed exclusively of Company employees,
any qualified pension plan (or related trust) or any
publicly held mutual fund) holds Beneficial
Ownership, directly or indirectly, of 20% or more of
the combined voting power of the then outstanding
Voting Securities of Surviving Company except to the
extent that such ownership existed prior to the
Business Combination; and
(C) at least a majority of the members of
the board of directors of Surviving Company were
members of the Incumbent Board at the earlier of the
date of execution of the initial agreement, or of the
action of the Southern Board, providing for such
Business Combination.
(iv) The Consummation of an acquisition by any Person
of Beneficial Ownership of 50% or more of the combined voting
power of the then outstanding Voting Securities of the
Company; provided, however, that for purposes of this
Paragraph 1.(d)(iv), any acquisition by Xx. Xxxxxxxx, any
Group composed exclusively of employees of the Company, any
Group of which Xx. Xxxxxxxx is a party, any qualified pension
plan (or related trust), any publicly held mutual fund, any
employee benefit plan (or related trust) sponsored or
maintained by Southern or any Southern Subsidiary shall not
constitute a Change in Control;
(v) Consummation of a reorganization, merger or
consolidation of the Company (an "Employing Company Business
Combination"), in each case, unless, following such Employing
Company Business Combination, Southern Controls the
corporation or other entity surviving or resulting from such
Employing Company Business Combination; or
(vi) Consummation of the sale or other disposition of
all or substantially all of the assets of the Company to a
corporation or other entity which Southern does not Control.
Notwithstanding the foregoing, in no event shall "Change in Control"
mean an initial public offering or a spin-off of the Company.
(e) "COBRA Coverage" shall mean any continuation coverage to
which Xx. Xxxxxxxx or his dependents may be entitled pursuant to Code
Section 4980B.
(f) "Code" shall mean the Internal Revenue Code of
1986, as amended.
(g) "Company" shall mean Southern Company Services,
Inc., its successors and assigns.
(h) "Consummation" shall mean the completion of the
final act necessary to complete a transaction as a matter of
law, including, but not limited to, any required approvals
by the corporation's shareholders and board of directors,
the transfer of legal and beneficial title to securities or
assets and the final approval of the transaction by any
applicable domestic or foreign governments or governmental
agencies.
(i) "Control" shall mean, in the case of a corporation,
Beneficial Ownership of more than 50% of the combined voting
power of the corporation's Voting Securities, or in the case
of any other entity, Beneficial Ownership of more than 50%
of such entity's voting equity interests.
(j) "Effective Date" shall mean the date of execution
of this Agreement.
(k) "Employee Outplacement Program" shall mean the
program established by the Company from time to time for the
purpose of assisting participants covered by the plan in
finding employment outside of the Company which provides for
the following services:
(i) self assessment, career decision and goal
setting; (ii) job market research and job sources;
(iii) networking and interviewing skills; (iv)
planning and implementation strategy; (v) resume
writing, job hunting methods and salary negotiation;
and (vi) office support and job search resources.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(m) "Executive Productivity Improvement Plan" or "Executive PIP Plan" shall
mean the
Southern Company Executive Productivity Improvement Plan or replacement
thereto, as such plans may be amended from time to time.
(n) "Good Reason" shall mean, without Xx. Xxxxxxxx'x express
written consent, after written notice to the Board, and after a thirty
(30) day opportunity for the Board to cure, the continuing occurrence
of any of the following events:
(i) Inconsistent Duties. A meaningful and detrimental alteration in
Xx. Xxxxxxxx'x position or in the nature or status of his responsibilities
from those in effect immediately prior to the Change in Control;
(ii) Reduced Salary. A reduction of five percent (5%) or more by the
Company in either of the following: (i) Xx. Xxxxxxxx'x annual base salary
rate as in effect immediately prior to the Change in Control (except for a
less than ten percent (10%), across-the-board annual base salary rate
reduction similarly affecting at least ninety-five percent (95%) of the
Executive Employees of the Company); or (ii) the sum of Xx. Xxxxxxxx'x
annual base salary rate plus target bonus under the PPP Plan (except for a
less than ten percent (10%), across-the-board reduction of annual base
salary rate plus target bonus under the PPP Plan similarly affecting at
least ninety-five percent (95%) of the Executive Employees of the Company);
(iii) Pension and Compensation Plans. The failure by the Company to
continue in effect any pension or compensation plan or agreement in which
Xx. Xxxxxxxx participates or is a party as of the date of the Change in
Control or the elimination of Xx. Xxxxxxxx'x participation therein, (except
for across-the-board plan changes or terminations similarly affecting at
least ninety-five percent (95%) of the Executive Employees of the Company);
For purposes of this Paragraph 1.(n), a "pension plan or agreement" shall
mean any written arrangement executed by an authorized officer of the
Company which provides for payments upon retirement; and a "compensation
plan or arrangement" shall mean any written arrangement executed by an
authorized officer of the Company which provides for periodic,
non-discretionary compensatory payments in the nature of bonuses.
(iv) Relocation. A change in Xx. Xxxxxxxx'x work location to a
location more than fifty (50) miles from the office where Xx. Xxxxxxxx is
located at the time of the Change in Control, unless such new work location
is within fifty (50) miles from Xx. Xxxxxxxx'x principal place of residence
at the time of the Change in Control. The acceptance, if any, by Xx.
Xxxxxxxx of employment by the Company at a work location which is outside
the fifty mile radius set forth in this Paragraph 1.(n)(iv) shall not be a
waiver of Xx. Xxxxxxxx'x right to refuse subsequent transfer by the Company
to a location which is more than fifty (50) miles from Xx. Xxxxxxxx'x
principal place of residence at the time of the Change in Control, and such
subsequent unconsented transfer shall be "Good Reason" under this
Agreement; or
(v) Benefits and Perquisites. The taking of any action by the Company
which would directly or indirectly materially reduce the benefits enjoyed
by Xx. Xxxxxxxx under the Company's retirement, life insurance, medical,
health and accident, disability, deferred compensation or savings plans in
which Xx. Xxxxxxxx was participating immediately prior to the Change in
Control; or the failure by the Company to provide Xx. Xxxxxxxx with the
number of paid vacation days to which Xx. Xxxxxxxx is entitled on the basis
of years of service with the Company in accordance with the Company's
normal vacation policy in effect immediately prior to the Change in Control
(except for across-the-board plan or vacation policy changes or plan
terminations similarly affecting at least ninety-five percent (95%) of the
Executive Employees of the Company).
(vi) For purposes of this Paragraph 1.(n), the term "Executive
Employee" shall mean those employees of the Company of Grade Level 10 or
above.
(o) "Group" shall have the meaning set forth in Section 14(d) of the
Exchange Act.
(p) "Group Health Plan" shall mean the group health plan covering Xx.
Xxxxxxxx as such plan may be amended from time to time.
(q) "Group Life Insurance Plan" shall mean the group life insurance
program covering Xx. Xxxxxxxx as such plan may be amended from time to
time.
(r) "Incumbent Board" shall mean those individuals who constitute the
Southern Board as of October 19, 1998 plus any individual who shall become
a director subsequent to such date whose election or nomination for
election by Southern's shareholders was approved by a vote of at least 75%
of the directors then comprising the Incumbent Board. Notwithstanding the
foregoing, no individual who shall become a director of the Southern Board
subsequent to October 19, 1998 whose initial assumption of office occurs as
a result of an actual or threatened election contest (within the meaning of
Rule 14a-11 of the Regulations promulgated under the Exchange Act) with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Southern Board shall be a member of the Incumbent Board.
(s) "Month of Service" shall mean any calendar month during
which Xx. Xxxxxxxx has worked at least one (1) hour or was on approved
leave of absence while in the employ of the Company or any affiliate or
subsidiary of Southern.
(t) "Pension Plan" shall mean The Southern Company Pension
Plan, as such plan may be amended from time to time.
(u) "Performance Dividend Plan" shall mean the Southern
Company Performance Dividend Plan or any replacement thereto, as such
plans may be amended from time to time.
(v) "Performance Stock Plan" shall mean the Southern Company
Performance Stock Plan or any replacement thereto, as such plans may be
amended from time to time.
(w) "Person" shall mean any individual, entity or group within the
meaning of Section 13(d)(3) or 14(d)(2) of Act.
(x) "Performance Pay Plan" or "PPP Plan" shall mean the
Southern Company Performance Pay Plan or any replacement thereto, as
such plans may be amended from time to time.
(y) "Southern" shall mean The Southern Company, its successors and
assigns.
(z) "Southern Board" shall mean the board of directors of Southern.
(aa) "Southern Subsidiary" shall mean any corporation or other
entity Controlled by Southern.
(bb) "Termination for Cause" or "Cause" shall mean the
termination of Xx. Xxxxxxxx'x employment by the Company upon the
occurrence of any of the following:
(i) The willful and continued failure by Xx. Xxxxxxxx
substantially to perform his duties with the Company (other
than any such failure resulting from Xx. Xxxxxxxx'x Total
Disability or from Xx. Xxxxxxxx'x retirement or any such
actual or anticipated failure resulting from termination by
Xx. Xxxxxxxx for Good Reason) after a written demand for
substantial performance is delivered to him by the Southern
Board, which demand specifically identifies the manner in
which the Southern Board believes that he has not
substantially performed his duties; or
(ii) The willful engaging by Xx. Xxxxxxxx in conduct
that is demonstrably and materially injurious to the Company,
monetarily or otherwise, including, but not limited to any of
the following:
(A) any willful act involving fraud or dishonesty in the course
of Xx. Xxxxxxxx'x employment by the Company;
(B) the willful carrying out of any activity or the making of any
statement which would materially prejudice or impair the good name and
standing of the Company, Southern or any Southern Subsidiary or would
bring the Company, Southern or any Southern Subsidiary into contempt,
ridicule or would reasonably shock or offend any community in which
the Company, Southern or such Southern Subsidiary is located;
(C) attendance at work in a state of intoxication or otherwise
being found in possession at his workplace of any prohibited drug or
substance, possession of which would amount to a criminal offense;
(D) violation of the Company's policies on drug and alcohol
usage, fitness for duty requirements or similar policies as may exist
from time to time as adopted by the Company's safety officer;
(E) assault or other act of violence against any person during
the course of employment; or
(F) indictment of any felony or any misdemeanor involving moral
turpitude. No act or failure to act by Xx. Xxxxxxxx shall be deemed
"willful" unless done, or omitted to be done, by Xx. Xxxxxxxx not in
good faith and without reasonable belief that his action or omission
was in the best interest of the Company.
Notwithstanding the foregoing, Xx. Xxxxxxxx shall not be
deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three quarters of the entire
membership of the Southern Board at a meeting of the Southern Board
called and held for such purpose (after reasonable notice to Xx.
Xxxxxxxx and an opportunity for him, together with counsel, to be heard
before the Southern Board), finding that, in the good faith opinion of
the Southern Board, Xx. Xxxxxxxx was guilty of conduct set forth above
in clause (i) or (ii) of this Paragraph 1.(bb) and specifying the
particulars thereof in detail.
(cc) "Termination Date" shall mean the date on which Xx.
Xxxxxxxx'x employment with the Company is terminated; provided,
however, that solely for purposes of Paragraph 2.(b) hereof, the
Termination Date shall be the effective date of his retirement pursuant
to the terms of the Pension Plan.
(dd) "Total Disability" shall mean Xx. Xxxxxxxx'x total
disability within the meaning of the Pension Plan.
(ee) "Voting Securities" shall mean the outstanding voting
securities of a corporation entitling the holder thereof to vote
generally in the election of such corporation's directors.
(ff) "Waiver and Release" shall mean the Waiver and Release
attached hereto as Exhibit A.
(gg) "Year of Service" shall mean Xx. Xxxxxxxx'x Months of
Service divided by twelve (12)
rounded to the nearest whole year, rounding up if the remaining number
of months is seven (7) or greater and rounding down if the remaining
number of months is less than seven (7). If Xx. Xxxxxxxx has a break in
his service with the Company, he will receive credit under this
Agreement for service prior to the break in service only if the break
in service is less than five years.
2. Severance Benefits.
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(a) Eligibility. Except as otherwise provided in this
Paragraph 2.(a), if Xx. Xxxxxxxx'x employment is involuntarily
terminated by the Company at any time during the two year period
following a Change in Control for reasons other than Cause, or if Xx.
Xxxxxxxx voluntarily terminates his employment with the Company for
Good Reason at any time during the two year period following a Change
in Control, Xx. Xxxxxxxx shall be entitled to receive the benefits
described in this Agreement upon the Company's receipt of an effective
Waiver and Release. Notwithstanding anything to the contrary herein,
Xx. Xxxxxxxx shall not be eligible to receive benefits under this
Agreement if Xx. Xxxxxxxx:
(i) voluntarily terminates his employment with the Company for
other than Good Reason;
(ii) has his employment terminated by the Company for Cause;
(iii) accepts the transfer of his employment to any Southern
Subsidiary or any employer that succeeds to all or substantially all
of the assets of Southern or any Southern Subsidiary;
(iv) refuses an offer of continued employment with the Company,
any Southern Subsidiary, or any employer that succeeds to all or
substantially all of the assets of the Company, or any Southern
Subsidiary under circumstances where such refusal would not amount to
Good Reason for voluntary termination of employment; or
(v) elects to receive the benefits of any other voluntary or
involuntary severance or separation program, plan or agreement
maintained by the Company in lieu of benefits under this Agreement;
provided however, that the receipt of benefits under the terms of any
retention plan or agreement shall not be deemed to be the receipt of
severance or separation benefits for purposes of this Agreement.
(b) Severance Benefits. If Xx. Xxxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof, he shall be entitled to a cash
severance benefit in an amount equal to three times his Annual
Compensation (the "Severance Amount"). If any portion of the Severance
Amount constitutes an "excess parachute payment" (as such term is
defined under Code Section 280G ("Excess Parachute Payment")), the
Company shall pay to Xx. Xxxxxxxx an additional amount calculated by
determining the amount of tax under Code Section 4999 that he otherwise
would have paid on any Excess Parachute Payment with respect to the
Change in Control and dividing such amount by a decimal determined by
adding the tax rate under Code Section 4999 ("Excise Tax"), the
hospital insurance tax under Code Section 3101(b) ("HI Tax") and
federal and state income tax measured at the highest marginal rates
("Income Tax") and subtracting such result from the number one (1) (the
"280G Gross-up"); provided, however, that no 280G Gross-up shall be
paid unless the Severance Amount plus all other "parachute payments" to
Xx. Xxxxxxxx under Code Section 280G exceeds three (3) times Xx.
Xxxxxxxx'x "base amount" (as such term is defined under Code Section
280G ("Base Amount")) by ten percent (10%) or more; provided further,
that if no 280G Gross-up is paid, the Severance Amount shall be capped
at three (3) times Xx. Xxxxxxxx'x Base Amount, less all other
"parachute payments" (as such term is defined under Code Section 280G)
received by Xx. Xxxxxxxx, less one dollar (the "Capped Amount"), if the
Capped Amount, reduced by HI Tax and Income Tax, exceeds what otherwise
would have been the Severance Amount, reduced by HI Tax, Income Tax and
Excise Tax.
For purposes of this Paragraph 2.(b), whether any amount would
constitute an Excess Parachute Payment and any other calculations of
tax, e.g., Excise Tax, HI Tax, Income Tax, etc., or other amounts,
e.g., Base Amount, Capped Amount, etc., shall be determined by the tax
department of the independent public accounting firm then responsible
for preparing Southern's consolidated federal income tax return, and
such calculations or determinations shall be binding upon the parties
hereto.
(c) Welfare Benefits. If Xx. Xxxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof and is not otherwise eligible to
receive retiree medical and life insurance benefits provided to certain
retirees pursuant to the terms of the Pension Plan, the Group Health
Plan and the Group Life Insurance Plan, he shall be entitled to the
benefits set forth in this Paragraph 2.(c).
(i) Xx. Xxxxxxxx shall be eligible to participate in
the Company's Group Health Plan, upon payment of both the
Company's and his monthly premium under such plan, for a
period of six (6) months for each of Xx. Xxxxxxxx'x Years of
Service, not to exceed five (5) years. If Xx. Xxxxxxxx elects
to receive this extended medical coverage, he shall also be
entitled to elect coverage under the Group Health Plan for his
dependents who were participating in the Group Health Plan on
Xx. Xxxxxxxx'x Termination Date (and for such other dependents
as may be entitled to coverage under the provisions of the
Health Insurance Portability and Accountability Act of 1996)
for the duration of Xx. Xxxxxxxx'x extended medical coverage
under this Paragraph 2.(c)(i) to the extent such dependents
remain eligible for dependent coverage under the terms of the
Group Health Plan.
(A) The extended medical coverage afforded to Xx. Xxxxxxxx
pursuant to Paragraph 2.(c)(i), as well as the premiums to be paid by
Xx. Xxxxxxxx in connection with such coverage shall be determined in
accordance with the terms of the Group Health Plan and shall be
subject to any changes in the terms and conditions of the Group Health
Plan as well as any future increases in premiums under the Group
Health Plan. The premiums to be paid by Xx. Xxxxxxxx in connection
with this extended coverage shall be due on the first day of each
month; provided, however, that if he fails to pay his premium within
thirty (30) days of its due date, such extended coverage shall be
terminated.
(B) Any Group Health Plan coverage provided under Paragraph
2.(c)(i) shall be a part of and not in addition to any COBRA Coverage
which Xx. Xxxxxxxx or his dependents may elect. In the event that Xx.
Xxxxxxxx or his dependents become eligible to be covered, by virtue of
re-employment or otherwise, by any employer-sponsored group health
plan or is eligible for coverage under any government-sponsored health
plan during the above period, coverage under the Company's Group
Health Plan available to Xx. Xxxxxxxx or his dependents by virtue of
the provisions of Paragraph 2.(c)(i) shall terminate, except as may
otherwise be required by law, and shall not be renewed. (ii) Xx.
Xxxxxxxx shall be entitled to receive cash in an amount equal to the
Company's and Xx. Xxxxxxxx'x cost of premiums for three (3) years of
coverage under the Group Health Plan and Group Life Insurance Plan in
accordance with the terms of such plans as of the date of the Change
in Control.
(d) Incentive Plans. If Xx. Xxxxxxxx meets the eligibility
requirements of Paragraph 2.(a) hereof he shall be entitled to
the following benefits under the Company's incentive plans:
(i) Stock Option Plan.
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(A) Any of Xx. Xxxxxxxx'x Options and Stock
Appreciation Rights under the Performance Stock Plan
(the defined terms of which are incorporated in this
Paragraph 2.(d)(i) by reference) which are
outstanding as of the Termination Date and which are
not then exercisable and vested, shall become fully
exercisable and vested to the full extent of the
original grant; provided, that in the case of a Stock
Appreciation Right, if Xx. Xxxxxxxx is subject to
Section 16(b) of the Exchange Act, such Stock
Appreciation Right shall not become fully vested and
exercisable at such time if such actions would result
in liability to Xx. Xxxxxxxx under Section 16(b) of
the Exchange Act, provided further, that any such
actions not taken as a result of the rules under
Section 16(b) of the Exchange Act shall be effected
as of the first date that such activity would no
longer result in liability under Section 16(b) of the
Exchange Act.
(B) The restrictions and deferral
limitations applicable to any of Xx. Xxxxxxxx'x
Restricted Stock as of the Termination Date shall
lapse, and such Restricted Stock shall become free of
all restrictions and limitations and become fully
vested and transferable to the full extent of the
original grant.
(C) The restrictions and deferral
limitations and other conditions applicable to any
other Awards held by Xx. Xxxxxxxx under the Stock
Performance Plan as of the Termination Date shall
lapse, and such other Awards shall become free of all
restrictions, limitations or conditions and become
fully vested and transferable to the full extent of
the original grant.
(ii) Performance Pay Plan. Provided Xx. Xxxxxxxx is
not entitled to benefits under Article V of the PPP Plan (the
defined terms of which are incorporated in this Paragraph
2.(d)(ii) by reference), if the PPP Plan is in place through
Xx. Xxxxxxxx'x Termination Date and to the extent Xx. Xxxxxxxx
is entitled to participate therein, Xx. Xxxxxxxx shall be
entitled to receive cash in an amount equal to a prorated
payout of his Incentive Pay Awards under the PPP Plan for the
Performance Period in which the Termination Date shall have
occurred, at target performance under the PPP Plan and
prorated by the number of months which have passed since the
beginning of the Performance Period until the Termination
Date.
(iii) Executive PIP Plan. Provided Xx. Xxxxxxxx is not
entitled to benefits under Article IV of the Executive PIP Plan
(the defined terms of which are incorporated in this Paragraph
2.(d)(iii) by reference), if the Executive PIP Plan is in place
through Xx. Xxxxxxxx'x Termination Date and to the extent Xx.
Xxxxxxxx is entitled to participate therein, Xx. Xxxxxxxx shall
be entitled to receive cash in an amount equal to his Award
Opportunity for the Computation Periods in which the Termination
Date shall have occurred at a target Value of Performance Unit of
$1.00, prorated for each Performance Period by the number of
months which have passed since the beginning of each of the
Computation Periods until the Termination Date.
(iv) Performance Dividend Plan. Provided Xx. Xxxxxxxx is not
entitled to benefits under the Performance Dividend Plan (the
defined terms of which are incorporated in this Paragraph
2.(d)(iv) by reference), if the Performance Dividend Plan is in
place through Xx. Xxxxxxxx'x Termination Date and to the extent
Xx. Xxxxxxxx is entitled to participate therein, Xx. Xxxxxxxx
shall be entitled to receive cash for each Award held by Xx.
Xxxxxxxx on his Termination Date, based on actual performance
under Section 4.1 of the Performance Dividend Plan determined as
of the most recently completed calendar quarter of the
Performance Period in which the Termination Date shall have
occurred, and the Annual Dividend declared prior to the
Termination Date.
(v) Other Short Term Incentive Plans. The provisions of this
Paragraph 2.(d)(v) shall apply if and to the extent that Xx.
Xxxxxxxx is a participant in any other "short term compensation
plan" not otherwise previously referred to in this Paragraph
2.(d). Provided Xx. Xxxxxxxx is not otherwise entitled to a plan
payout under any change of control provisions of such plans, if
the "short term compensation plan" is in place as of the
Termination Date and to the extent Xx. Xxxxxxxx is entitled to
participate therein, Xx. Xxxxxxxx shall receive cash in an amount
equal to his award under the Company's "short term incentive
plan" for the annual performance period in which the Termination
Date shall have occurred, at Xx. Xxxxxxxx'x target performance
level and prorated by the number of months which have passed
since the beginning of the annual performance period until his
Termination Date. For purposes of this Paragraph 2.(d)(v) the
term "short term incentive compensation plan" shall mean any
incentive compensation plan or arrangement adopted in writing by
the Company which provides for annual, recurring compensatory
bonuses based upon articulated performance criteria. (e) Payment
of Benefits. Any amounts due under this Agreement shall be paid
in one (1) lump sum payment as soon as administratively
practicable following the later of: (i) Xx. Xxxxxxxx'x
Termination Date, or (ii) upon Xx. Xxxxxxxx'x tender of an
effective Waiver and Release to the Company in the form of
Exhibit A attached hereto and the expiration of any applicable
revocation period for such waiver. In the event of a dispute with
respect to liability or amount of any benefit due hereunder, an
effective Waiver and Release shall be tendered at the time of
final resolution of any such dispute when payment is tendered by
the Company.
(f) Benefits in the Event of Death. In the event of Xx.
Xxxxxxxx'x death prior to the payment of all amounts due under this
Agreement, Xx. Xxxxxxxx'x estate shall be entitled to receive as due
any amounts not yet paid under this Agreement upon the tender by the
executor or administrator of the estate of an effective Waiver and
Release.
(g) Legal Fees. In the event of a dispute between Xx. Xxxxxxxx
and the Company with regard to any amounts due hereunder, if any
material issue in such dispute is finally resolved in Xx. Xxxxxxxx'x
favor, the Company shall reimburse Xx. Xxxxxxxx'x legal fees incurred
with respect to all issues in such dispute in an amount not to exceed
fifty thousand dollars ($50,000).
(h) Employee Outplacement Services. Xx. Xxxxxxxx shall be
eligible to participate in the Employee Outplacement Program,
which program shall not be less than six (6) months duration
measured from Xx. Xxxxxxxx'x Termination Date.
(i) Non-qualified Retirement and Deferred Compensation Plans.
The Parties agree that subsequent to a Change in Control, any claims by
Xx. Xxxxxxxx for benefits under any of the Company's non-qualified
retirement or deferred compensation plans shall be resolved through
binding arbitration in accordance with the provisions and procedures
set forth in Paragraph 5 hereof and if any material issue in such
dispute is finally resolved in Xx. Xxxxxxxx'x favor, the Company shall
reimburse Xx. Xxxxxxxx'x legal fees in the manner provided in Paragraph
2.(g) hereof.
3. Transfer of Employment. In the event that Xx. Xxxxxxxx'x employment
by the Company is terminated during the two year period following a Change in
Control and Xx. Xxxxxxxx accepts employment by Southern, a Southern Subsidiary,
or any employer that succeeds to all or substantially all of the assets of the
Company, Southern or any Southern Subsidiary, the Company shall assign this
Agreement to Southern, such Southern Subsidiary, or successor employer, Southern
shall accept such assignment or cause such Southern Subsidiary or successor
employer to accept such assignment, and such assignee shall become the "Company"
for all purposes hereunder.
4. No Mitigation. If Xx. Xxxxxxxx is otherwise eligible to receive
benefits under Paragraph 2 of this Agreement, he shall have no duty or
obligation to seek other employment following his Termination Date and, except
as otherwise provided in Paragraph 2.(a)(iii) hereof, the amounts due Xx.
Xxxxxxxx hereunder shall not be reduced or suspended if Xx. Xxxxxxxx accepts
such subsequent employment.
5. Arbitration.
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(a) Any dispute, controversy or claim arising out of or
relating to the Company's obligations to pay severance benefits under
this Agreement, or the breach thereof, shall be settled and resolved
solely by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") except as
otherwise provided herein. The arbitration shall be the sole and
exclusive forum for resolution of any such claim for severance benefits
and the arbitrators' award shall be final and binding. The provisions
of this Paragraph 5 are not intended to apply to any other disputes,
claims or controversies arising out of or relating to Xx. Xxxxxxxx'x
employment by the Company or the termination thereof.
(b) Arbitration shall be initiated by serving a written notice
of demand for arbitration to Mr. Franklin, in the case of the Company,
or to the Southern Board, in the case of Xx. Xxxxxxxx.
(c) The arbitration shall be held in Atlanta, Georgia. The
arbitrators shall apply the law of the State of Georgia, to the extent
not preempted by federal law, excluding any law which would require the
application of the law of another state.
(d) The parties shall appoint arbitrators within fifteen (15)
business days following service of the demand for arbitration. The
number of arbitrators shall be three. One arbitrator shall be appointed
by Xx. Xxxxxxxx, one arbitrator shall be appointed by the Company, and
the two arbitrators shall appoint a third. If the arbitrators cannot
agree on a third arbitrator within thirty (30) business days after the
service of demand for arbitration, the third arbitrator shall be
selected by the AAA.
(e) The arbitration filing fee shall be paid by Xx. Xxxxxxxx.
All other costs of arbitration shall be borne equally by Xx. Xxxxxxxx
and the Company, provided, however, that the Company shall reimburse
such fees and costs in the event any material issue in such dispute is
finally resolved in Xx. Xxxxxxxx'x favor and Xx. Xxxxxxxx is reimbursed
legal fees under Paragraph 2.(g) hereof.
(f) The parties agree that they will faithfully observe the
rules that govern any arbitration between them, they will abide by and
perform any award rendered by the arbitrators in any such arbitration,
including any award of injunctive relief, and a judgment of a court
having jurisdiction may be entered upon an award.
(g) The parties agree that nothing in this Paragraph 5 is
intended to preclude upon application of either party any court having
jurisdiction from issuing and enforcing in any lawful manner such
temporary restraining orders, preliminary injunctions, and other
interim measures of relief as may be necessary to prevent harm to a
party's interests or as otherwise may be appropriate pending the
conclusion of arbitration proceedings pursuant to this Agreement;
regardless of whether an arbitration proceeding under this Paragraph 5
has begun. The parties further agree that nothing herein shall prevent
any court from entering and enforcing in any lawful manner such
judgments for permanent equitable relief as may be necessary to prevent
harm to a party's interests or as otherwise may be appropriate
following the issuance of arbitral awards pursuant to this Paragraph 5.
6. Miscellaneous.
(a) Funding of Benefits. Unless the Board in its discretion
shall determine otherwise, the benefits payable to Xx. Xxxxxxxx under
this Agreement shall not be funded in any manner and shall be paid by
the Company out of its general assets, which assets are subject to the
claims of the Company's creditors.
(b) Withholding. There shall be deducted from the payment of
any benefit due under this Agreement the amount of any tax required by
any governmental authority to be withheld and paid over by the Company
to such governmental authority for the account of Xx. Xxxxxxxx.
(c) Assignment. Xx. Xxxxxxxx shall have no rights to sell,
assign, transfer, encumber, or otherwise convey the right to receive
the payment of any benefit due hereunder, which payment and the rights
thereto are expressly declared to be nonassignable and nontransferable.
Any attempt to do so shall be null and void and of no effect.
(d) Amendment and Termination. The Agreement may be amended
or terminated only by a writing executed by the parties.
(e) Construction. This Agreement shall be construed in
accordance with and governed by the laws of the State of Georgia, to
the extent not preempted by federal law, disregarding any provision of
law which would require the application of the law of another state.
(f) Pooling Accounting. Notwithstanding anything to the
contrary herein, if, but for any provision of this Agreement, a Change
in Control transaction would otherwise be accounted for as a
pooling-of-interests under XXX Xx.00 ("Pooling Accounting") (after
giving effect to any and all other facts and circumstances affecting
whether such Change in Control transaction would use Pooling
Accounting), such provision or provisions of this Agreement which would
otherwise cause the Change in Control transaction to be ineligible for
Pooling Accounting shall be void and ineffective in such a manner and
to the extent that by eliminating such provision or provisions of this
Agreement, Pooling Accounting would be required for such Change in
Control transaction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this ____ day of __________________,
THE SOUTHERN COMPANY
By: ____________________
SOUTHERN COMPANY
SERVICES, INC.
By: ____________________
XX. XXXXXXXX
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Xxxxx Xxxxx Xxxxxxxx
Exhibit A
CHANGE IN CONTROL AGREEMENT
Waiver and Release
The attached Waiver and Release is to be given to Xx. Xxxxx Xxxxx
Xxxxxxxx upon the occurrence of an event that triggers eligibility for severance
benefits under the Change in Control Agreement, as described in Paragraph 2(a)
of such agreement.
CHANGE IN CONTROL AGREEMENT
Waiver and Release
I, Xxxxx Xxxxx Xxxxxxxx, understand that I am entitled to receive the
severance benefits described in Section 2 of the Change in Control Agreement
(the "Agreement") if I execute this Waiver and Release ("Waiver"). I understand
that the benefits I will receive under the Agreement are in excess of those I
would have received from The Southern Company and Southern Company Services,
Inc. (collectively, the "Company") if I had not elected to sign this Waiver.
I recognize that I may have a claim against the Company under the Civil
Rights Act of 1964 and 1991, the Age Discrimination in Employment Act, the
Rehabilitation Act of 1973, the Energy Reorganization Act of 1974, as amended,
the Americans with Disabilities Act or other federal, state and local laws.
In exchange for the benefits I elect to receive, I hereby irrevocably
waive and release all claims, of any kind whatsoever, whether known or unknown
in connection with any claim which I ever had, may have, or now have against The
Southern Company, Alabama Power Company, Georgia Power Company, Gulf Power
Company, Mississippi Power Company, Savannah Electric and Power Company,
Southern Communication Services, Inc., Southern Company Services, Inc., Southern
Energy Resources, Inc., Southern Company Energy Solutions, Inc., Southern
Nuclear Operating Company, Inc., Southern Energy, Inc. and other direct or
indirect subsidiaries of The Southern Company and their past, present and future
officers, directors, employees, agents and attorneys. Nothing in this Waiver
shall be construed to release claims or causes of action under the Age
Discrimination in Employment Act or the Energy Reorganization Act of 1974, as
amended, which arise out of events occurring after the execution date of this
Waiver.
In further exchange for the benefits I elect to receive, I understand
and agree that I will respect the proprietary and confidential nature of any
information I have obtained in the course of my service with the Company or any
subsidiary or affiliate of The Southern Company. However, nothing in this Waiver
shall prohibit me from engaging in protected activities under applicable law or
from communicating, either voluntary or otherwise, with any governmental agency
concerning any potential violation of the law.
In signing this Waiver, I am not releasing claims to benefits that I am
already entitled to under any workers' compensation laws or under any retirement
plan or welfare benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is sponsored by or adopted by the
Company and/or any of its direct or indirect subsidiaries; however, I understand
and acknowledge that nothing herein is intended to or shall be construed to
require 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.
In signing this Waiver, I realize that I am waiving and releasing,
among other things, any claims to benefits under any and all bonus, severance,
workforce reduction, early retirement, outplacement, or any other similar type
plan sponsored by the Company.
I have been encouraged and advised in writing to seek advice from
anyone of my choosing regarding this Waiver, including my attorney, and my
accountant or tax advisor. Prior to signing this Waiver, I have been given the
opportunity and sufficient time to seek such advice, and I fully understand the
meaning and contents of this Waiver.
I understand that I may take up to twenty-one (21) calendar days to
consider whether or not I desire to enter this Waiver. I was not coerced,
threatened or otherwise forced to sign this Waiver. I have made my choice to
sign this Waiver voluntarily and of my own free will.
I understand that I may revoke this Waiver at any time during the seven
(7) calendar day period after I sign and deliver this Waiver to the Company. If
I revoke this Waiver, I must do so in writing delivered to the Company. I
understand that this Waiver is not effective until the expiration of this seven
(7) calendar day revocation period. I understand that upon the expiration of
such seven (7) calendar day revocation period this entire Waiver will be binding
upon me and will be irrevocable.
I understand that by signing this Waiver I am giving up rights I may
have.
IN WITNESS WHEREOF, the undersigned hereby executes this Waiver
this ____ day of ____________________, in the year _____.
Xxxxx Xxxxx Xxxxxxxx
Sworn to and subscribed to me this
____ day of ____________, _____.
Notary Public
My Commission Expires:
(Notary Seal)
Acknowledged and Accepted by the Company, as defined in the Waiver.
By:
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Date:
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