Exhibit 10(a)104
SEPARATION AGREEMENT FOR
XXXXXX X. XXXXX
THIS SEPARATION AGREEMENT ("Agreement"), made and entered by and
between THE SOUTHERN COMPANY, SOUTHERN ENERGY RESOURCES, INC. and their
affiliates ("Company") and XXXXXX X. XXXXX ("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by Company for approximately thirty
(30) years; and WHEREAS, Company and Employee wish to agree finally and amicably
to the terms of Employee terminatinghis employment with the Company; and
WHEREAS, the parties desire to set forth their respective rights and
obligations attendant to such termination; and
WHEREAS, Employee is a member of a select group of management or highly
compensated employee of the Company; and
WHEREAS, the Company desires to provide Employee with severance
compensation in consideration for certain reasonable restrictive covenants set
forth in this Agreement; and
WHEREAS, Employee agrees that he has obtained Confidential Information,
Trade Secrets and Work Product, each as defined in this Agreement, during his
employment with the Company; and
WHEREAS, the parties desire to have Employee be subject to certain
reasonable non-disclosure, non-solicitation and non-competition restrictions in
order to protect the Company's legitimate business interests; and
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations, and desire complete accord and satisfaction of all
claims arising from Employee's employment and its termination, with appropriate
releases.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth 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 Employee.
Effective July 31, 1999 (hereinafter the "Effective Date of
Termination"), Employee is retiring from his current position as Chief Executive
Officer of Southern Energy, Inc., and Executive Vice President of The Southern
Company. Employee has no further privileges, duties or obligations in such
capacity, nor as an agent of the Company.
2. Severance Benefits and Other Consideration.
Employee is entitled to the customary retirement benefits accrued by
Employee under the terms of the employee benefit plans maintained by the Company
in which Employee participated, which benefits shall not be inconsistent with
those set forth on Exhibit 1 of this Agreement. In exchange for the receipt of
the fully executed original of this Agreement and Employee's retirement with
Company, Company also agrees to pay to Employee:
(a) A lump sum severance payment in the amount of $750,000, to be
paid at separation after the Employee's release herein is
effective, subject to appropriate deductions as required by
law.
(b) A payment in an amount determined by reference to the 1999
award that Employee could have received under the Southern
Energy Resources, Inc. Short-Term Incentive Plan, pro-rated
based on the Effective Date of Termination, and payable no
later than March 15, 2000. For purposes of determining this
amount, the corporate component will be determined under the
normal procedures for this Plan, and the individual component
will be paid at 100% of the targeted amount.
(c) Under the Southern Energy Resources, Inc. Deferred Incentive
Compensation Plan, Employee will be paid his vested awards
determined as of the Effective Date of Termination by June
30th after the year in which each of Employee's deferral
elections in effect for such awards ends.
(d) Under the Southern Energy Resources, Inc. Deferred Incentive
Compensation Plan, Employee will continue to vest in
outstanding and unvested awards determined as of the Effective
Date of Termination. Each award will be paid by June 30th
after the year in which each such award vests.
(e) Under the Southern Energy Resources, Inc. Value Creation Plan,
Employee will continue to vest in Employee's outstanding,
unvested Appreciation Rights and Index Rights as of the
Effective Date of Termination (estimated to be approximately
1,033,053). Employee must exercise all such Appreciation
Rights by no later than the end of the first exercise window
period following the year the last Appreciation Right vests
and each such Indexed Right no later than the end of the first
exercise window period following the year in which the last
Appreciation Right vests. Employee may exercise vested
Appreciation and Index rights anytime prior to the date the
last Appreciation Rights vests.
(f) Under the Southern Energy Resources, Inc. Value Creation Plan,
Employee will be entitled to exercise Employee's vested
Appreciation Rights determined as of the Effective Date of
Termination (estimated to be approximately 69,814) anytime
prior to, but no later than the end of the first exercise
window period after the date upon which the last unvested
Appreciation Right described in Paragraph 2(e) vests.
Employee will not vest and will forfeit unpaid portion of those
payments described in Paragraph 2(b) and (d) of this Agreement in the event
Employee breaches this Agreement prior to the payment dates for those amounts.
Employee will not vest and will forfeit those awards described in Paragraph 2(e)
and (f) of this Agreement in the event Employee breaches this Agreement prior to
the last date for exercise of those awards. Upon Employee's satisfaction of the
covenants set forth in Paragraph 4 of this Agreement, any remaining benefits
under this Paragraph 2 shall no longer be subject to forfeiture. In no event
will the Employee be required to repay any amounts that have been paid to
Employee prior to any breach except pursuant to an action at law or in equity
for money damages as described in Paragraph 11 hereof.
Employee shall only be entitled to the benefit payments set forth above
that become due and payable between Employee's Effective Date of Termination and
his death. Upon the death of Employee, unpaid amounts set forth above shall be
payable to Employee's heirs or assigns.
Except as provided in Paragraph 3(c), Employee covenants and agrees
that the amounts and considerations set forth in this Paragraph 2 are in full
satisfaction of all sums owed to Employee, if any, by the Company, and
constitute good and complete consideration for his release contained in
Paragraph 3(a) hereof and for Employee's obligations and other covenants set
forth in Paragraph 4 and elsewhere in this Agreement. Employee agrees that the
Agreement is providing him certain benefits to which he would otherwise not be
entitled, including those set forth in Paragraph 2(a), (b), (c), (d), except in
part with respect to vested awards, (e) and (f), except in part with regard to
vested awards.
Employee represents that he is legally and wholly responsible for any
and all required taxes, fees, or other deductions required by law arising from
this Agreement and the aforementioned payments which may accrue now or at any
time in the future. Company shall make appropriate state and federal income tax,
FICA and FUTA withholding, from such payments as required by state and/or
federal law. In the event that the Company shall believe that Employee is in
breach of this Agreement, the Company shall give Employee written notice of such
breach and the facts and circumstances supporting such belief. Employee shall
have fourteen (14) days from his receipt of such notice to cure such default and
avoid a default or breach of this Agreement by Employee.
Company agrees that it will not take any action specifically intended
to disadvantage Employee in regard to the computation, exercise or payment of
the benefits included in this Paragraph 2, and will treat Employee as the
Company generally treats its employees or former employees with regard to such
benefits.
3. General Release by Employee.
(a) As a material inducement to the Company to enter into this
Agreement, 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, and
assigns (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 bonus, incentive offer letters, employment
agreements, severance, workforce reduction, early retirement, outplacement, or
any other similar type plan 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 and/or the termination of his employment relationship and/or affiliation
as employee of the Company as of the date of this Agreement against each of the
Releasees; provided, however, that the foregoing shall not release the Company
from any of its obligations under this Agreement. Notwithstanding the foregoing,
Employee does not release any Claims under the Age Discrimination in Employment
Act that may arise after his execution of this Agreement.
(b) 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 Agreement.
(c) Employee and the Company agree that by signing this
Agreement, Employee is not releasing his claim to any benefits under any
employee benefit plan maintained by the Company payable upon normal retirement
in which Employee participated prior to the Effective Date of Termination.
4. Non-Disclosure, Non-Solicitation and Non-Competition Provisions.
(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
Non-Disclosure, Non-Solicitation and Non-Competition Provisions.
(b) Definitions. For purposes of this Paragraph 4, the following terms
shall have the following meanings:
(i) "Confidential Information" shall mean the proprietary
and confidential data or information belonging to or
pertaining to the Company, other than "Trade Secrets"
(as defined below), which is of tangible or
intangible value to the Company, and that is not
generally known to the public but is treated as
confidential or secret by the Company and is
generally known only to the Company and those of its
employees, independent contractors or agents to whom
such information must be confided for business
purposes, regarding the products, services,
contractual arrangements, customers, suppliers, and
partners of the Company gained by Employee as a
result of his employment with the Company.
Confidential Information shall also include other
items that the Company may from time to time xxxx or
otherwise identify as confidential if it satisfies
the definition of Confidential Information set forth
above.
(ii) "Entity" shall mean any business, individual,
partnership, joint venture, agency, governmental
subdivision, association, firm, corporation or other
entity.
(iii) "Territory" shall include Georgia, Alabama,
Mississippi, and Florida.
(iv) "Trade Secrets" shall mean information of the Company
which (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; it being agreed that such
information includes, without limitation, technical
and non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a
technique, a drawing, a process, financial data,
financial plans, product plans or a list of actual or
potential customers or suppliers or any other
information which is defined as a "trade secret"
under applicable law.
(v) "Work Product" shall mean all tangible work product,
property, data, documentation, "know-how," concepts
or plans, inventions, discovery, compositions,
innovations, computer programs, improvements,
techniques, processes, designs, article of
manufacture or information of any kind, or any new or
useful improvements of any of the foregoing and any
Trade Secrets, patents, copyrights, Confidential
Information, mask work, trademark or service xxxx,
relating in any way to the Company and its or their
business prepared, conceived, revised discovered,
developed, or created by Employee for the Company or
by using the Company's time, personnel, facilities,
equipment, knowledge, information, resources or
material.
(c) Nondisclosure: Ownership of Proprietary Property.
(i) In recognition of the need of the Company to protect
its legitimate business interests, Employee hereby
covenants and agrees that: (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, for a period ending
upon the earlier of (x) the date such information no
longer qualifies as Confidential Information under
applicable law or (y) three (3) years following the
Effective Date of Termination (hereafter the
"Nondisclosure Period"), 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. Employee shall
exercise all reasonable best efforts to ensure the
continued confidentiality of all Trade Secrets and
Confidential Information of the Company known by,
disclosed to or made available to Employee in
connection with his employment relationship with the
Company or any other past or present relationship
with the Company. Employee 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 reasonably necessary at
the Company's expense, in the procurement of any
protection of the Company's rights to or in any of
the Trade Secrets or Confidential Information.
(ii) 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 X.X.X.X.xx. 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, trade secrets, service marks 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 reasonably deem necessary or appropriate,
from time to time, 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.
(iii) Employee represents and agrees that he will keep the
terms and amount of this Agreement completely
confidential, and except to his personal agents
(including accountants, tax advisors, wife, financial
planners and attorneys) or to the extent required by
law, he will not hereafter disclose this information
concerning this Agreement to anyone, including, but
not limited to, any past, present, or prospective
employee or applicant for employment with the
Company. Employee may only disclose to future,
potential employers of Employee that he participates
in a separation arrangement with the Company which
imposes certain restrictions on him related to such
future, potential employment and the specifics of
those restrictions.
(iv) Employee agrees that he shall not hereafter seek or
accept any re-employment with the Company.
(d) Non-Solicitation Of Employees.
Employee agrees, during the three years following the
Employee's Effective Date of Termination, that he will not, either directly or
indirectly, alone or in conjunction with any other person or entity, actively
recruit, engage in passive hiring efforts, solicit, attempt to solicit, or
induce any person who, during such three year period, or within one year prior
to Employee's separation from employment, was a salaried employee of Southern
Energy Resources, Inc., or its parent or any of its subsidiaries, or was an
officer of The Southern Company or any of its affiliates (other than Southern
Energy, Inc.) to leave or cease such employment for any reason whatsoever or
hire or engage the services of such person in any business substantially similar
or competitive with that in which The Southern Company or any of its affiliates
were engaged during such employment.
(e) Non-Competition.
Employee and Company expressly covenant and agree that the
scope, Territory, time and other restrictions contained in this 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. Therefore, for a period of two years from the Effective Date of
Termination, Employee agrees (A) not to participate in any regulatory,
administrative or judicial hearing or proceeding that has as a subject any
aspect of the Company's growth or expansion plans, unless Employee is required
to do so by law, (B) not to accept employment, or be engaged as a director,
consultant, agent or representative in any capacity, however described, of El
Paso Energy Corporation, Sonat, Inc., Duke Energy Corporation, Enron or Columbia
Energy Corporation or any of their affiliates (the "Specified Companies),
provided, however, Employee may become such an employee, director, consultant,
agent or representative of any such Specified Company if the entity by which
Employee is employed and/or serves as a director is acquired by or merged with
any one of the Specified Companies during the two year period following the
Effective Date of Termination, (C) not to accept employment or be engaged as a
director, consultant, agent or representative in any capacity, however
described, of any entity engaged, in any way, in constructing an electric
generating plant which will be in commercial operation within the Territory
within two years from the Effective Date of Termination, unless on behalf of an
entity that owns or operates an existing electric generating plant within the
Territory as of the Effective Date of Termination, and (D) if Employee becomes
employed by, or otherwise engaged by, an entity that is engaged, in any way, in
constructing an electric generating plant that will be in commercial operation
within the Territory within three years of the Effective Date of Termination,
not to participate in the bidding, permitting, construction or public relations
activities regarding such plant.
5. Return Of Company Property. Employee shall immediately return to the
Company all property of the Company that he took possession of during the term
of his employment and which he has not already returned to the Company and all
documents and materials constituting or containing Trade Secrets or Confidential
Information of the Company or Work Product including, without limitation, credit
cards, keys, financial records, contracts, manuals, correspondence, files,
documents, drafts of any document, disks an other documents and media,
regardless of form, and copies of any of the foregoing.
6. 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 inquires or investigations, or required
filings with state, federal or foreign agencies (hereinafter "Company Matters").
Upon request of the Company, and at any point following the Effective Date of
Termination, 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.
7. Publicity; No Disparaging Statement. 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. The only exception to the foregoing shall be in those
circumstances (a) in which Employee, the Company or any of the Releasees is
obligated to provide information in response to an investigation by a duly
authorized governmental entity, in response to legal process, or in response to
a request for information from an officer, director or shareholder of the
Company or (b) in which a party initiates a legal proceeding to enforce the
terms of this Agreement.
8. 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 Releasees 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 (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS).
9. 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 whether written or oral. This Agreement shall not be modified or amended
except by a written instrument signed by both Employee and an authorized
representative of the Company.
10. 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. If any court determines that any provision of Paragraph 4 hereof is
unenforceable because of the duration or scope of such provision, such court
shall have the power to reduce the scope or duration of such provision as the
case may be, and in its reduced form, such provision shall then be enforceable.
11. Waiver Of Breach; Remedies. 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
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and exercise all other rights existing
in its favor. The parties hereto agree and acknowledge that any breach of the
provisions of this Agreement, including, but not limited to, any prohibited
competition or any disclosure or use of Trade Secrets or Confidential
Information by Employee, would be wrongful and cause immediate significant,
continuing and irreparable injury and damage to the Company that is not
compensable by money damages. Should Employee breach or threaten to breach any
provision of this Agreement, the Company shall be entitled to stop payments
under this Agreement and seek 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 Employee's breach), cumulative of and in addition to any other
rights or remedies to which the Company may be entitled by this Agreement, at
law or in equity.
12. No Admission Of Liability. This Agreement 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, its employees, or its agents.
13. Voluntary Signing Of Agreement. Employee warrants, represents and
agrees that he has been encouraged in writing to seek advice from anyone of his
choosing regarding this Agreement, including his attorney, accountant, or tax
advisor prior to his signing it; that this Agreement 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
Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY TAKE UP TO TWENTY-ONE (21) DAYS TO
CONSIDER WHETHER OR NOT HE DESIRES TO ENTER INTO THIS AGREEMENT. He further
represents and warrants that he was not coerced, threatened or otherwise forced
to sign this Agreement, and that each signature appearing hereinafter is
voluntary and genuine.
. 13. Ability to Revoke Agreement. EMPLOYEE UNDERSTANDS THAT HE MAY REVOKE THIS
AGREEMENT BY NOTIFYING THE COMPANY IN WRITING OF SUCH REVOCATION WITHIN SEVEN
(7) DAYS OF HIS EXECUTION OF THIS AGREEMENT AND THAT THIS AGREEMENT 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 AGREEMENT WILL BE BINDING
UPON HIM AND HIS HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS
AND ASSIGNS AND WILL BE IRREVOCABLE.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the dates described below.
"COMPANY"
THE SOUTHERN COMPANY AND ITS AFFILIATES
____________________________________ By:____________________________________
Date_____ _________
Title:_________________________________
Title:
I UNDERSTAND THAT BY SIGNING THIS AGREEMENT, I AM GIVING UP RIGHTS I
MAY HAVE. I UNDERSTAND THAT I DO NOT HAVE TO SIGN THIS AGREEMENT.
__________________ "EMPLOYEE"
____________________________________ By:________________________________
Date
Exhibit 1 to Xxxxx Xxxxxxxxx Agreement
Normal Benefits Upon Retirement
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SEI's Short-term Incentive Plan -- $0
o 1999 award forfeited due to separation prior to Normal Retirement (age
65)
Southern's Voluntary Deferred Compensation Plan - About $30,000
o Any amounts will be paid according to last effective form of payment
election
SEI's Mandatory Deferred Incentive Compensation Plan - About $242,000 o Amount
payable in a single sum upon termination
o Nonvested amounts lost due to separation before Normal Retirement
(value today about $531,000)
Value Creation Plan - 69,812 SAR awards o Includes normal and indexed SARs o
Exercisable within 30 days of separation
o Current value approximately $121,000 as of July 15, 1999
o Remaining 1,033,055 awards forfeited due to nonvested separation prior
to Normal Retirement
Nonqualified Stock Options - 89,097 awards o Full vesting of all nonvested
options upon retirement o Exercisable within 36 months of retirement o Current
value approximately $365,000 as of July 15, 1999
o Continued eligibility for performance dividend payments for all options
granted after 1996
Pension - About $12,325 per month
o Includes tax-qualified and supplemental pension benefits
o Expressed as single life annuity (other forms of payment available with
appropriate adjustment) o Anticipates retirement and benefit
commencement on August 1, 1999 o 1999 incentives reflected at $0
ESP/ESOP - About $352,000 as of July 14, 1999
o Includes qualified and supplemental account balances
o Payable at or after retirement in accordance with plans' provisions and
employee's elections
Retiree Medical and Life Insurance - Coverage
o Coverages pursuant to terms of "cap" plans
o Coverages subject to affirmative coverage election, payment of required
contributions, and amendment/termination by company
Relevant Notes
o All amounts subject to appropriate taxation.
o All amounts are based on separation from service on July 31, 1999.
o Amounts are based on best available information but are still
approximate due to limited access to information at the current time.
Amounts will be verified and, if necessary, adjusted once all relevant
information is accessible.
