Exhibit 10(c)59
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") made and entered into by and
between GEORGIA POWER COMPANY (the "Company") and XXXXXX X. XXXXXXX, XX.
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
thirty-four (34) years; WHEREAS, Employee is a highly compensated employee of
the Company and is a member of its management; WHEREAS, in order to be eligible
for benefits under this Agreement, the parties have agreed that Employee must
terminate employment with the Company on April 30, 2002;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to such termination of employment, and desire
to reach an accord and satisfaction of all claims arising from Employee's
employment and his termination of employment, with appropriate releases; and
WHEREAS, the Company desires to compensate Employee for service he has
provided or will provide for the Company;
NOW, THEREFORE, in consideration of the premises, and the agreements
of the parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby covenant and agree as
follows:
1. Termination of Employment. Upon Employee's execution of this
Agreement, voluntary termination of employment with the Company on April 30,
2002 (the Employee's "Termination Date"), and effectiveness of the Release
attached hereto as Exhibit 1 (such effectiveness being no earlier than
Employee's Termination Date), the Company agrees to pay to Employee or his
spouse or his estate, as applicable, the amounts described in Paragraph 2
hereof. Employee covenants and agrees that the consideration set forth in
Paragraph 2 is in full satisfaction of all sums owed to Employee, if any, by the
Company, and constitutes good and complete consideration for his Release
attached hereto as Exhibit 1, those non-disclosure and non-interference
obligations under Paragraphs 5, 6, 7, 8 and 9 hereof and all other obligations
and covenants of Employee contained herein, including, but not limited to,
Paragraph 4. Employee agrees that this Agreement provides him certain benefits
to which he would not otherwise be entitled.
2. Severance Payment to Employee. On the first day of the first month
following both the Employee's Termination Date and the effective date of the
Release attached hereto as Exhibit 1 (such effective date being no earlier than
Employee's Termination Date), the Company shall pay to Employee an amount equal
to Seven Hundred Seventy-Three Thousand Dollars ($773,000). In the event of a
Southern Change in Control or a Subsidiary Change in Control affecting Employee
as defined in the Southern Company Change in Control Benefit Plan Determination
Policy, any unpaid amounts shall be paid in a lump sum as soon as practicable
after the occurrence of such an event. In the event Employee dies before
receiving payment of the amounts described in this Paragraph 2 hereof, such
amounts shall be paid to Employee's spouse, if living, or if not, to the
Employee's estate. In accordance with Paragraph 20, Employee shall be
responsible for all state and federal income taxes and his share of FICA taxes
owed on the foregoing amounts, and Company shall make appropriate withholding of
these amounts.
3. Publicity; No Disparaging Statement. Except as otherwise provided
in Paragraph 13 hereof, Employee and the Company covenant and agree that they
shall not engage in any communications which shall disparage one another or
interfere with their existing or prospective business relationships.
4. No Employment. Employee agrees that he shall not seek re-employment
as an employee or independent contractor with the Company or The Southern
Company or any of its subsidiaries or affiliates (collectively, for purposes of
this Paragraph 4, "The Southern Company System"), for a period of twenty-four
(24) months following the execution of the Release attached hereto as Exhibit 1.
The Company or any member of The Southern Company System shall not rehire the
Employee as an employee or independent contractor for a period of twenty-four
(24) months following the Employee's execution of the Release attached hereto as
Exhibit 1, unless an exceptional business reason exists for rehiring the
Employee and a committee, comprised of (i) an officer from the business unit
seeking to rehire the Employee and (ii) the Southern Company Vice President,
Employee Relations & Associate General Counsel, approves of such rehiring.
5. Business Protection Provision Definitions.
(a) Preamble. As a material inducement to the Company to enter into
this Agreement, and its recognition of the valuable experience, knowledge and
proprietary information Employee gained from his employment with the Company,
Employee warrants and agrees he will abide by and adhere to the following
business protection provisions in Xxxxxxxxxx 0, 0, 0, 0 xxx 0 xxxxxx.
(x) Definitions. For purposes of Paragraphs 5, 6, 7, 8 and 9 herein,
the following terms shall have the following meanings:
(i) "Competitive Position" shall mean any employment, consulting,
advisory, directorship, agency, promotional or independent
contractor arrangement between the Employee and any person or
Entity engaged wholly or in material part in the business that
the Company is engaged in (the "Business") whereby the
Employee is required to or does perform services on behalf of
or for the benefit of such person or Entity which are
substantially similar to the services Employee participated in
or directed while employed by the Company, The Southern
Company or any of their respective affiliates (collectively
the "Southern Entities").
(ii) "Confidential Information" shall mean the proprietary or
confidential data, information, documents or materials
(whether oral, written, electronic or otherwise) belonging to
or pertaining to the Company or other Southern Entities, other
than "Trade Secrets" (as defined below), which is of tangible
or intangible value to any of the Southern Entities and the
details of which are not generally known to the competitors of
the Southern Entities. Confidential Information shall also
include: (A) any items that any of the Southern Entities have
marked "CONFIDENTIAL" or some similar designation or are
otherwise identified as being confidential; and (B) all
non-public information known by or in the possession of
Employee related to or regarding any proceedings involving or
related to the Southern Affiliates before the Georgia Public
Service Commission or other Entities.
(iii) "Entity" or "Entities" shall mean any business, individual,
partnership, joint venture, agency, governmental agency, body
or subdivision, association, firm, corporation, limited
liability company or other entity of any kind.
(iv) "Territory" shall include the States of Georgia, Alabama,
Mississippi or Florida.
(v) "Trade Secrets" shall mean information or data of or about any
of the Southern Entities, including, but not limited to,
technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product
plans or lists of actual or potential customers or suppliers
that: (A) derives economic value, actual or potential, from
not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances
to maintain its secrecy. The Employee agrees that trade
secrets include non-public information related to the rate
making process of the Southern Entities and any other
information which is defined as a "trade secret" under
applicable law.
(vi) "Work Product" shall mean all tangible work product, property,
data, documentation, "know-how," concepts or plans,
inventions, improvements, techniques and processes relating to
the Southern Entities that were conceived, discovered,
created, written, revised or developed by Employee during the
term of his employment with the Company.
6. Nondisclosure: Ownership of Proprietary Property.
(a) In recognition of the need of the Company to protect its
legitimate business interests, Confidential Information and Trade Secrets,
Employee hereby covenants and agrees that Employee shall regard and treat Trade
Secrets and all Confidential Information as strictly confidential and
wholly-owned by the Company and shall not, for any reason, in any fashion,
either directly or indirectly, use, sell, lend, lease, distribute, license,
give, transfer, assign, show, disclose, disseminate, reproduce, copy,
misappropriate or otherwise communicate any such item or information to any
third party or Entity for any purpose other than in accordance with this
Agreement or as required by applicable law: (i) with regard to each item
constituting a Trade Secret, at all times such information remains a "trade
secret" under applicable law, and (ii) with regard to any Confidential
Information, for a period of three (3) years following the Termination Date
(hereafter the "Restricted Period").
(b) Employee shall exercise best efforts to ensure the
continued confidentiality of all Trade Secrets and Confidential Information, and
he shall immediately notify the Company of any unauthorized disclosure or use of
any Trade Secrets or Confidential Information of which Employee becomes aware.
Employee shall assist the Company, to the extent necessary, in the protection of
or procurement of any intellectual property protection or other rights in any of
the Trade Secrets or Confidential Information.
(c) All Work Product shall be owned exclusively by the
Company. To the greatest extent possible, any Work Product shall be deemed to be
"work made for hire" (as defined in the Copyright Act, 17 U.S.C.A. ss. 101 et
seq., as amended), and Employee hereby unconditionally and irrevocably transfers
and assigns to the Company all right, title and interest Employee currently has
or may have by operation of law or otherwise in or to any Work Product,
including, without limitation, all patents, copyrights, trademarks (and the
goodwill associated therewith), trade secrets, service marks (and the goodwill
associated therewith) and other intellectual property rights. Employee agrees to
execute and deliver to the Company any transfers, assignments, documents or
other instruments which the Company may deem necessary or appropriate, from time
to time, to protect the rights granted herein or to vest complete title and
ownership of any and all Work Product, and all associated intellectual property
and other rights therein, exclusively in the Company.
(d) Employee represents and agrees that he will keep all terms
and provisions of this Agreement completely confidential, except for possible
disclosures to his legal advisors or to the extent required by law, and Employee
further agrees that he will not disclose the terms, provisions or information
contained in or concerning this Agreement to anyone, including, but not limited
to, any past, present, or prospective employee or applicant for employment with
the Company. Employee agrees that he may only disclose to future, potential
employers of Employee that he participates in a Separation Agreement with the
Company which imposes certain restrictions on him.
7. Non-Interference With Employees.
Employee covenants and agrees that during the Restricted
Period he will not, either directly or indirectly, alone or in conjunction with
any other person or Entity: (A) actively recruit, solicit, attempt to solicit,
or induce any person who, during such Restricted Period, or within one year
prior to the Termination Date, was an exempt employee of the Company or any of
its subsidiaries, or was an officer of any of the other Southern Entities to
leave or cease such employment for any reason whatsoever; or (B) hire or engage
the services of any such person described in Paragraph 7(A) in any business
substantially similar or competitive with that in which the Southern Entities
were engaged during his employment.
8. Non-Interference With Customers.
(a) Employee acknowledges that in the course of employment, he
has learned about Company's business, services, materials, programs and products
and the manner in which they are developed, marketed, serviced and provided.
Employee knows and acknowledges that the Company has invested considerable time
and money in developing its programs, agreements, offices, representatives,
services, products and marketing techniques and that they are unique and
original. Employee further acknowledges that the Company must keep secret all
pertinent information divulged to Employee and Company's business concepts,
ideas, programs, plans and processes, so as not to aid Company's competitors.
Accordingly, Company is entitled to the following protection, which Employee
agrees is reasonable:
(b) Employee covenants and agrees that for a period of two (2) years
following the Termination Date, he will not, on his own behalf or on behalf of
any person or Entity, solicit, direct, appropriate, call upon, or initiate
communication or contact with any person or entity or any representative of any
person or entity, with whom Employee had contact during his employment, with a
view toward the sale or the providing of any product, equipment or service sold
or provided or under development by Company during the period of two (2) years
immediately preceding the date of Employee's termination. The restrictions set
forth in this section shall apply only to persons or entities with whom Employee
had actual contact during the two (2) years prior to termination of employment
with a view toward the sale or providing of any product, equipment or service
sold or provided or under development by Company.
9. Non-Interference With Business.
(a) Employee and Company expressly covenant and agree that the
scope, territorial, time and other restrictions contained in this entire
Agreement constitute the most reasonable and equitable restrictions possible to
protect the business interest of the Company given: (i) the business of the
Company; (ii) the competitive nature of the Company's industry; and (iii) that
Employee's skills are such that he could easily find alternative, commensurate
employment or consulting work in his field which would not violate any of the
provisions of this Agreement. The Employee further acknowledges that the
payments described in Paragraph 2 are also in consideration of his covenants and
agreements contained in Paragraphs 5 through 9 hereof.
(b) Employee covenants and agrees to not obtain or work in a
Competitive Position within the Territory for a period of two (2) years from the
Termination Date.
10. Return of Materials. Upon the Employee's termination, or at any
point after that time upon the specific request of the Company, Employee shall
return to the Company all written or descriptive materials of any kind belonging
or relating to the Company or its affiliates, including, without limitation, any
originals, copies and abstracts containing any Work Product, intellectual
property, Confidential Information and Trade Secrets in Employee's possession or
control.
11. Cooperation. The parties agree that as a result of Employee's
duties and activities during his employment, Employee's reasonable availability
may be necessary for the Company to meaningfully respond to or address actual or
threatened litigation, or government inquiries or investigations, or required
filings with state, federal or foreign agencies (hereinafter "Company Matters").
Upon request of the Company, and at any point following termination of
employment, Employee will make himself available to the Company for reasonable
periods consistent with his future employment, if any, by other Entities and
will cooperate with its agents and attorneys as reasonably required by such
Company Matters. The Company will reimburse Employee for any reasonable
out-of-pocket expenses associated with providing such cooperation.
12. Termination with Cause. In the event of Employee's termination of
employment for Cause at any time, the Employee shall forfeit the entire benefit
provided in Paragraph 2 and the Company shall have no further obligations with
respect to any amount under this Agreement. As used in this Agreement, the term
"Cause" shall mean gross negligence or willful misconduct in the performance of
the duties and services required in the course of employment by the Company; the
final conviction of a felony or misdemeanor involving moral turpitude; the
carrying out of any activity or the making of any statement which would
prejudice the good name and standing of any of the Southern Entities or would
bring any of the Southern Entities into contempt, ridicule or would reasonably
shock or offend any community in which any of the Southern Entities is located;
a material breach of the fiduciary obligations owed by an officer and an
employee to any of the Southern Entities; or the Employee's unsatisfactory
performance of the duties and services required by his or her employment.
13. Confidentiality and Legal Process. Employee represents and agrees
that he will keep the terms, amount and fact of this Agreement confidential and
that he will not hereafter disclose any information concerning this Agreement to
any one other than his personal agents, including, but not limited to, any past,
present, or prospective employee or applicant for employment with Company.
Notwithstanding the foregoing, nothing in this Agreement is intended to prohibit
Employee from performing any duty or obligation that shall arise as a matter of
law. Specifically, Employee shall continue to be under a duty to truthfully
respond to any legal and valid subpoena or other legal process. This Agreement
is not intended in any way to proscribe Employee's right and ability to provide
information to any federal, state or local government in the lawful exercise of
such governments' governmental functions.
14. Successors And Assigns; Applicable Law. This Agreement shall be
binding upon and inure to the benefit of Employee and his heirs, administrators,
representatives, executors, successors and assigns, and shall be binding upon
and inure to the benefit of the Company and its officers, directors, employees,
agents, shareholders, parent corporation and affiliates, and their respective
predecessors, successors, assigns, heirs, executors and administrators and each
of them, and to their heirs, administrators, representatives, executors,
successors and assigns. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Georgia, United States of America
(without giving effect to principles of conflicts of laws).
15. Complete Agreement. This Agreement shall constitute the full and
complete Agreement between the parties concerning its subject matter and fully
supersedes any and all other prior Agreements or understandings between the
parties concerning the subject matter hereof. This Agreement shall not be
modified or amended except by a written instrument signed by both Employee and
an authorized representative of the Company.
16. Severability. The unenforceability or invalidity of any particular
provision of this Agreement shall not affect its other provisions, and to the
extent necessary to give such other provisions effect, they shall be deemed
severable. The judicial body interpreting this Agreement shall be authorized and
instructed to rewrite any of the sections which are enforceable as written in
such a fashion so that they may be enforced to the greatest extent legally
possible. Employee acknowledges and agrees that the covenants and agreements
contained in this Agreement, including, without limitation, the covenants and
agreements contained in Xxxxxxxxxx 0, 0, 0, 0 xxx 0, xxxxx xx construed as
covenants and agreements independent of each other or any other contract between
the parties hereto and that the existence of any claim or cause of action by
Employee against Company, whether predicted upon this Agreement or any other
contract, shall not constitute a defense to the enforcement by Company of said
covenants and agreements.
17. Waiver Of Breach; Specific Performance. The waiver of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any other breach. Each of the parties to this Agreement will be entitled to
enforce its or his rights under this Agreement, specifically, to recover damages
by reason of any breach of any provision of this Agreement and to exercise all
other rights existing in its or his favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its or his sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
18. Unsecured General Creditor. The Company shall neither reserve nor
specifically set aside funds for the payment of its obligations under this
Agreement, and such obligations shall be paid solely from the general assets of
the Company. Notwithstanding that Employee may be entitled to receive the value
of his benefit under the terms and conditions of this Agreement, the assets from
which such amount may be paid shall at all times be subject to the claims of the
Company's creditors.
19. No Effect On Other Arrangements. It is expressly understood and
agreed that the payments made in accordance with this Agreement are in addition
to any other benefits or compensation to which Employee may be entitled or for
which he may be eligible, whether funded or unfunded, by reason of his
employment with the Company.
20. Tax Withholding. There shall be deducted from each payment under
this Agreement the amount of any tax required by any governmental authority to
be withheld and paid over by the Company to such governmental authority for the
account of Employee.
21. Compensation. Any compensation contributed on behalf of Employee
under this Agreement shall not be considered "compensation," as the term is
defined in The Southern Company Employee Savings Plan, The Southern Company
Employee Stock Ownership Plan, The Southern Company Performance Sharing Plan or
The Southern Company Pension Plan. Payments under this Agreement shall not be
considered wages, salaries or compensation under any other employee benefit
plan.
22. No Guarantee of Employment. No provision of this Agreement shall
be construed to affect in any manner the existing rights of the Company to
suspend, terminate, alter, modify, whether or not for cause, the employment
relationship of Employee and the Company.
23. Interpretation. The judicial body interpreting this Agreement shall
not more strictly construe the terms of this Agreement against one party, it
being agreed that both parties and/or their attorneys or agents have negotiated
and participated in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
this ___ day of ________________, .
"COMPANY"
GEORGIA POWER COMPANY
By:
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Its:
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"EMPLOYEE"
XXXXXX X. XXXXXXX, XX.
EXHIBIT 1 to
Separation Agreement
with Xxxxxx X. Xxxxxxx, Xx.
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between
XXXXXX X. XXXXXXX, XX. ("Employee") and GEORGIA POWER COMPANY, and its successor
or assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Georgia Power Company shall terminate on April 30, 2002;
WHEREAS, Employee and the Company have previously entered into that
certain Separation Agreement, dated _________________, ______ ("Agreement"),
that this Release is incorporated therein by reference;
WHEREAS, Employee and Company desire to delineate their respective
rights, duties and obligations attendant to such termination and desire to reach
an accord and satisfaction of all claims arising from Employee's employment, and
his termination of employment, with appropriate releases, in accordance with the
Agreement;
WHEREAS, the Company desires to compensate Employee in accordance with
the Agreement for service he has or will provide for the Company;
NOW, THEREFORE, in consideration of the premises and the agreements of
the parties set forth in this Release, and other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby covenant and agree as follows:
1. Release. Employee does hereby remise, release and forever discharge
the Company and its officers, directors, employees, agents, shareholders, parent
corporation and affiliates, and their respective predecessors, successors,
assigns, heirs, executors and administrators (collectively, "Releasees"), of and
from all manner of actions and causes of action, suits, debts, claims and
demands whatsoever at law or in equity, known or unknown, actual or contingent,
including, but not limited to, any claims which have been asserted, or could be
asserted now or in the future, against any Releasees arising under any and all
federal, state or local laws and any common law claims, and including, but not
limited to, any claims Employee may have pursuant to the Age Discrimination in
Employment Act and any claims to benefits under any and all offer letters,
employment or separation agreements, or bonus, severance, workforce reduction,
early retirement, out-placement, or other similar plans sponsored by the
Company, now or hereafter recognized (collectively, "Claims"), which he ever had
or now has or may in the future have, by reason of any matter, cause or thing
arising out of his employment relationship and privileges, his serving as an
employee of the Company or the separation from his employment relationship or
affiliation as an employee of the Company as of the date of this Release against
each of the Releasees. Notwithstanding the foregoing, Employee does not release
any Claims under the Age Discrimination in Employment Act that may arise after
his execution of this Release.
2. No Assignment of Claim. Employee represents that he has not
assigned or transferred, or purported to assign or transfer, any Claims or any
portion thereof or interest therein to any party prior to the date of this
Release.
3. Compensation. In accordance with the Separation Agreement, the
Company agrees to pay the Employee, his spouse or his estate, as the case may
be, the amounts provided in Paragraph 2 of the Agreement.
4. No Admission Of Liability. This Release shall not in any way be
construed as an admission by the Company or Employee of any improper actions or
liability whatsoever as to one another, and each specifically disclaims any
liability to or improper actions against the other or any other person, on the
part of itself or himself, its or his employees or agents.
5. Voluntary Execution. Employee warrants, represents and agrees that
he has been encouraged in writing to seek advice from anyone of his choosing
regarding this Release, including his attorney and accountant or tax advisor
prior to his signing it; that this Release represents written notice to do so;
that he has been given the opportunity and sufficient time to seek such advice;
and that he fully understands the meaning and contents of this Release. He
further represents and warrants that he was not coerced, threatened or otherwise
forced to sign this Release, and that his signature appearing hereinafter is
voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE
(21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS RELEASE.
6. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE
THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN
(7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS NOT EFFECTIVE
UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS THAT UPON THE
EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE BINDING UPON HIM
AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS AND
ASSIGNS AND WILL BE IRREVOCABLE.
Acknowledged and Agreed To:
"COMPANY"
GEORGIA POWER COMPANY
By:
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Its:
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I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE. I
UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE.
"EMPLOYEE"
XXXXXX X. XXXXXXX, XX.
Date_____ _________
WITNESSED BY:
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Date
FIRST AMENDMENT TO SEPARATION AGREEMENT
This First Amendment to Separation Agreement made and entered into by
and between GEORGIA POWER COMPANY ("Company") and XXXXXX X. XXXXXXX, XX. ("Xx.
Xxxxxxx"), effective as of the 21st day of December, 2001.
W I T N E S S E T H:
WHEREAS, Company and Xx. Xxxxxxx previously entered into a Separation
Agreement ("Agreement"); and WHEREAS, Company and Xx. Xxxxxxx desire to amend
the Agreement to (i) clarify that the payment under the Agreement is in exchange
for services Xx. Xxxxxxx provided to the Company as an employee of the Company,
as well as services Xx. Xxxxxxx provided to the Company as an employee of any
other affiliate or subsidiary of The Southern Company, and (ii) provide for the
payment of benefits in the event Xx. Xxxxxxx terminates from the Company or any
other affiliate or subsidiary of The Southern Company on April 30, 2002.
NOW, THEREFORE, in consideration of the premises, the agreements of the
parties set forth in this First Amendment to Separation Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby covenant
and agree as follows:
1. Each reference to "Employee" in the Agreement is deleted, and "Xx.
Xxxxxxx" shall be inserted in lieu thereof.
2. All of the "Whereas" provisions in the Agreement are deleted in
their entirety, and the following is inserted in lieu thereof:
WHEREAS, Xx. Xxxxxxx has been employed by the Company or another
affiliate or subsidiary of The Southern Company for approximately thirty-four
(34) years;
WHEREAS, Xx. Xxxxxxx was a highly compensated employee of the Company
and was a member of its management;
WHEREAS, in order to be eligible for benefits under this Agreement,
the parties have agreed that Xx. Xxxxxxx must terminate employment with the
Company or any other affiliate or subsidiary of The Southern Company on April
30, 2002;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to such termination of employment, and desire
to reach an accord and satisfaction of all claims arising from Xx. Xxxxxxx'x
employment and his termination of employment, with appropriate releases; and
WHEREAS, the Company desires to compensate Xx. Xxxxxxx for services he
has provided and will provide for the Company as an employee of the Company and
as an employee of any other affiliate or subsidiary of The Southern Company;
3. Paragraph 1 of the Agreement is deleted in its entirety, and the
following is inserted in lieu thereof:
1. Termination of Employment. Upon Xx. Xxxxxxx'x execution of
this Agreement, voluntary termination of employment with the Company
or any other affiliate or subsidiary of The Southern Company on April
30, 2002 (Xx. Xxxxxxx'x "Termination Date"), and effectiveness of the
Release attached hereto as Exhibit 1 (such effectiveness being no
earlier than Xx. Xxxxxxx'x Termination Date), the Company agrees to
pay to Xx. Xxxxxxx or his spouse or his estate, as applicable, the
amounts described in Paragraph 2 hereof. Xx. Xxxxxxx covenants and
agrees that the consideration set forth in Paragraph 2 is in full
satisfaction of all sums owed to Xx. Xxxxxxx, if any, by the Company,
and constitutes good and complete consideration for his Release
attached hereto as Exhibit 1, those non-disclosure and
non-interference obligations under Paragraphs 5, 6, 7, 8 and 9 hereof
and all other obligations and covenants of Xx. Xxxxxxx contained
herein, including, but not limited to, Paragraph 4. Xx. Xxxxxxx agrees
that this Agreement provides him certain benefits to which he would
not otherwise be entitled.
4. Paragraph 12 of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
12. Termination with Cause. In the event of Xx. Xxxxxxx'x
termination of employment from the Company or any other affiliate or
subsidiary of The Southern Company for Cause at any time, Xx. Xxxxxxx
shall forfeit the entire benefit provided in Paragraph 2 and the
Company shall have no further obligations with respect to any amount
under this Agreement. As used in this Agreement, the term "Cause"
shall mean gross negligence or willful misconduct in the performance
of the duties and services required in the course of employment by the
Company or any other affiliate or subsidiary of the Southern Company;
the final conviction of a felony or misdemeanor involving moral
turpitude; the carrying out of any activity or the making of any
statement which would prejudice the good name and standing of any of
the Southern Entities or would bring any of the Southern Entities into
contempt, ridicule or would reasonably shock or offend any community
in which any of the Southern Entities is located; a material breach of
the fiduciary obligations owed by an officer and an employee to any of
the Southern Entities; or Xx. Xxxxxxx'x unsatisfactory performance of
the duties and services required by his employment.
5. Paragraph 22 of the Agreement is deleted in its entirety, and the
current Paragraph 23 shall be renumbered Paragraph 22.
6. The Release Agreement attached to the Agreement as Exhibit 1 is
deleted in its entirety, and the Release Agreement attached hereto is inserted
in lieu thereof.
7. All parts of the Agreement not inconsistent herewith shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Separation Agreement this ____ day of _____________, 2002.
GEORGIA POWER COMPANY
By:
-----------------------------
Its:
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XXXXXX X. XXXXXXX, XX.
EXHIBIT 1 to
Separation Agreement
with Xxxxxx X. Xxxxxxx, Xx.
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between
XXXXXX X. XXXXXXX, XX. ("Xx. Xxxxxxx") and GEORGIA POWER COMPANY, and its
successor or assigns ("Company").
WHEREAS, Xx. Xxxxxxx and Company have agreed that Xx. Xxxxxxx'x
employment with Georgia Power Company or any other subsidiary or affiliate of
The Southern Company shall terminate on April 30, 2002;
WHEREAS, Xx. Xxxxxxx and the Company have previously entered into that
certain Separation Agreement, dated December 21, 2001, and the related First
Amendment to Separation Agreement, dated _________________, ______
(collectively, "Agreement"), that this Release is incorporated therein by
reference;
WHEREAS, Xx. Xxxxxxx and Company desire to delineate their respective
rights, duties and obligations attendant to such termination and desire to reach
an accord and satisfaction of all claims arising from Xx. Xxxxxxx'x employment,
and his termination of employment, with appropriate releases, in accordance with
the Agreement;
WHEREAS, the Company desires to compensate Xx. Xxxxxxx in accordance
with the Agreement for service he has or will provide for the Company as an
employee of the Company or as an employee of any other affiliate or subsidiary
of The Southern Company;
NOW, THEREFORE, in consideration of the premises and the agreements of
the parties set forth in this Release, and other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby covenant and agree as follows:
1. Release. Xx. Xxxxxxx does hereby remise, release and forever
discharge the Company and its officers, directors, employees, agents,
shareholders, parent corporation and affiliates, and their respective
predecessors, successors, assigns, heirs, executors and administrators
(collectively, "Releasees"), of and from all manner of actions and causes of
action, suits, debts, claims and demands whatsoever at law or in equity, known
or unknown, actual or contingent, including, but not limited to, any claims
which have been asserted, or could be asserted now or in the future, against any
Releasees arising under any and all federal, state or local laws and any common
law claims, and including, but not limited to, any claims Xx. Xxxxxxx may have
pursuant to the Age Discrimination in Employment Act and any claims to benefits
under any and all offer letters, employment or separation agreements, or bonus,
severance, workforce reduction, early retirement, out-placement, or other
similar plans sponsored by the Company, now or hereafter recognized
(collectively, "Claims"), which he ever had or now has or may in the future
have, by reason of any matter, cause or thing arising out of his employment
relationship and privileges, his serving as an employee of the Company or the
separation from his employment relationship or affiliation as an employee of the
Company as of the date of this Release against each of the Releasees.
Notwithstanding the foregoing, Xx. Xxxxxxx does not release any Claims under the
Age Discrimination in Employment Act that may arise after his execution of this
Release.
2. No Assignment of Claim. Xx. Xxxxxxx represents that he has not
assigned or transferred, or purported to assign or transfer, any Claims or any
portion thereof or interest therein to any party prior to the date of this
Release.
3. Compensation. In accordance with the Separation Agreement, the
Company agrees to pay Xx. Xxxxxxx, his spouse or his estate, as the case may be,
the amounts provided in Paragraph 2 of the Agreement.
4. No Admission Of Liability. This Release shall not in any way be
construed as an admission by the Company or Xx. Xxxxxxx of any improper actions
or liability whatsoever as to one another, and each specifically disclaims any
liability to or improper actions against the other or any other person, on the
part of itself or himself, its or his employees or agents.
5. Voluntary Execution. Xx. Xxxxxxx warrants, represents and agrees
that he has been encouraged in writing to seek advice from anyone of his
choosing regarding this Release, including his attorney and accountant or tax
advisor prior to his signing it; that this Release represents written notice to
do so; that he has been given the opportunity and sufficient time to seek such
advice; and that he fully understands the meaning and contents of this Release.
He further represents and warrants that he was not coerced, threatened or
otherwise forced to sign this Release, and that his signature appearing
hereinafter is voluntary and genuine. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP
TO TWENTY-ONE (21) DAYS TO CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS
RELEASE.
6. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY
REVOKE THIS RELEASE BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION
WITHIN SEVEN (7) DAYS OF HIS EXECUTION OF THIS RELEASE AND THAT THIS RELEASE IS
NOT EFFECTIVE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. HE UNDERSTANDS
THAT UPON THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD THIS RELEASE WILL BE
BINDING UPON HIM AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS,
SUCCESSORS AND ASSIGNS AND WILL BE IRREVOCABLE.
Acknowledged and Agreed To:
"COMPANY"
GEORGIA POWER COMPANY
By:
---------------------------------
Its:
---------------------------------
I UNDERSTAND THAT BY SIGNING THIS RELEASE, I AM GIVING UP RIGHTS I MAY HAVE. I
UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS RELEASE.
"EMPLOYEE"
XXXXXX X. XXXXXXX, XX.
Date_____ _________
WITNESSED BY:
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