Exhibit 10.2
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
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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
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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
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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
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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
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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,
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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
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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
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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.
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 4th day of January, 2006.
"COMPANY" "CONSULTANT"
GEORGIA POWER COMPANY XXXXXXX X. XXXXXX, III
By: /s/M.D. Xxxxxxx /s/Xxxxxxx X. Xxxxxx, III
Its: President & CEO Witnessed By: /s/Xxxxxxx Xxxxx
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