Exhibit 10(b)1
DEFERRED COMPENSATION AGREEMENT
THIS DEFERRED COMPENSATION AGREEMENT ("Agreement") is made and entered
into by and between ALABAMA POWER COMPANY (the "Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, III ("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for approximately
thirty-seven (37) years;
WHEREAS, Employee is a highly compensated employee of the Company and
is a member of its management;
WHEREAS, the Company wishes to retain Employee as Chief Financial
Officer of the Company through April 1, 2004;
WHEREAS, the parties desire to delineate their respective rights,
duties, and obligations attendant to the termination of employment of the
Employee, and desire to reach an accord and satisfaction of all then existing
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. Events Rendering Employee Eligible for Deferred Compensation.
Subject to the terms of this Agreement, the Employee shall become eligible to
receive Deferred Compensation (as defined in Paragraph 3) if one of the events
listed in Paragraph 1(a), (b), (c) or (d) below ("Eligibility Events") occurs.
(a) The Employee remains in Active Service (as defined below) with the
Company as Chief Financial Officer through April 1, 2004, and either the Company
obtains from the Employee an effective Release in the form attached hereto as
Exhibit 1 (the effectiveness of such Release being no earlier than the date
Employee's employment is terminated (the "Termination Date")) or the Employee
dies while in Active Service after April 1, 2004;
(b) The Employee dies prior to April 1, 2004, while in Active Service
with the Company as Chief Financial Officer;
(c) The Employee becomes Disabled (as defined below) prior to April 1,
2004, while in Active Service with the Company as Chief Financial Officer, and
the Company obtains from the Employee an effective Release in the form attached
hereto as Exhibit 1 (the effectiveness of such Release being no earlier than the
Employee's Termination Date); or
(d) A Southern Change in Control or Subsidiary Change in Control
affecting Employee as defined in The Southern Company Change in Control Benefit
Plan Determination Policy ("Change in Control") occurs while Employee is in
Active Service and the Company obtains from the Employee an effective Release in
the form attached hereto as Exhibit 1 (the effectiveness of such Release being
no earlier than the Employee's Termination Date).
For purposes of this Paragraph: "Active Service" includes any period
during which the Employee is on the active payroll of the Company, including any
period of sick leave, vacation, absences under the Family and Medical Leave Act,
short-term disability leave or approved but unpaid leave that is unrelated to
Cause (as defined in Paragraph 4). The term "Disabled" shall have the same
meaning as the term is used in The Southern Company Long Term Disability Plan
(or any successor arrangement or plan) (the "Company LTD Plan"), and Employee is
determined to be disabled under the terms of said plan. The Employee represents
that he currently maintains coverage under the Company LTD Plan and hereby
agrees to continue to maintain coverage under the Company LTD Plan through April
1, 2004. The application period for long-term disability benefits under the
Company LTD Plan shall be treated as a period of sick leave.
2. Complete Consideration. Employee covenants and agrees that the
consideration set forth in Paragraph 3 shall be in full satisfaction of all sums
owed to Employee, if any, by the Company upon the occurrence of an Eligibility
Event, and shall constitute good and complete consideration for meeting the
requirements of the applicable Eligibility Event and for the Release attached
hereto as Exhibit 1, those non-disclosure and non-interference obligations under
Paragraphs 7, 8, 9, 10 and 11 hereof and all other obligations and covenants of
Employee contained herein, including, but not limited to, Paragraph 6. Employee
agrees that this Agreement provides him certain benefits to which he would not
otherwise be entitled.
3. Deferred Compensation Payment to Employee.
(a) Except as provided below, following the occurrence of one of the
Eligibility Events set forth in Paragraph 1 hereto, the Company shall pay to the
Employee deferred compensation according to one of the following subparagraphs
("Deferred Compensation").
(i) Following the occurrence of an Eligibility Event set forth in
Paragraph 1(a), (b) or (c) hereto, the Company shall pay to
Employee (or his spouse or estate as described below) Deferred
Compensation equal to 2.6 times Employee's base salary as of
the day immediately preceding his Termination Date. The
Deferred Compensation described in the preceding sentence
shall be paid to Employee (or his spouse or estate as
described below) in five equal, annual installments which
shall be calculated based on an effective interest rate of
7.5% per annum (0.6045% per month) and commence on the first
day of the first month following the occurrence of an
Eligibility Event under Paragraph 1(a), (b) or (c).
(ii) Following the occurrence of the Eligibility Event set forth in
Paragraph 1(d) hereto, the Company shall pay to Employee (or
his spouse or estate as described below) a lump sum amount
equal to 2.6 times Employee's base salary as of the day
immediately preceding his Termination Date, as soon as
practicable following the occurrence of such Eligibility
Event. The lump sum payment described in the preceding
sentence shall be reduced in such an amount and to such extent
that no amount of the payment, plus all other "parachute
payments" under Internal Revenue Code ("Code") Section 280G,
would constitute an "excess parachute payment" under Code
Section 280G, but only to the extent that if the payment under
this Paragraph 3(a)(ii) were increased by one additional
dollar ($1.00), a portion of the payment under this Paragraph
3(a)(ii) would be an "excess parachute payment" under Code
Section 280G. The payment under this Paragraph 3(a)(ii) and
any other determination relating to the applicability of Code
Section 280G (and the rules and regulations thereunder) to the
payment contemplated by Paragraph 3(a)(ii) of this Agreement
shall be made by the tax department of the independent public
accounting firm then responsible for preparing the Company's
consolidated federal income tax return, and such determination
shall be binding upon the Employee and the Company.
(iii) Notwithstanding subparagraphs (i) and (ii) above, in the event
the Eligibility Event set forth in Paragraph 1(d) occurs
together with any of the other Eligibility Events set forth in
Paragraph 1, Employee shall receive Deferred Compensation in
accordance with subparagraph (ii) above.
Notwithstanding the foregoing, the amount of Deferred Compensation
payable under this Agreement shall be reduced by the amount of benefits, if any,
payable to Employee under any career transition, severance or separation plan or
program sponsored by the Company.
(b) In the event of a Change in Control which occurs after an
Eligibility Event set forth in Paragraph 1(a), (b) or (c) hereto, any unpaid
Deferred Compensation under this Paragraph 3 shall be paid in a lump sum as soon
as practicable after the occurrence of such Change in Control. The lump sum
shall be equal to the present value of any unpaid amount based on an effective
interest rate of 7.5% per annum (0.6045% per month).
(c) In the event the Eligibility Event described in Paragraph 1(b)
occurs or the Employee dies after or in conjunction with an Eligibility Event
described in Paragraph 1(a), (c) or (d), but before receiving payment of
Deferred Compensation described in this Paragraph 3, such unpaid Deferred
Compensation shall be paid to Employee's spouse, if living, or if not, to the
Employee's estate.
(d) In accordance with Paragraph 21, Employee shall be responsible for
all payroll taxes, including, without limitation, local, state and federal
income taxes and his share of FICA taxes owed on the Deferred Compensation, and
Company shall make appropriate withholding of these amounts.
(e) Notwithstanding the foregoing, in the event Employee engages in
Misconduct, as defined below, before or after Employee's Eligibility Event but
prior to receiving the Deferred Compensation described in this Paragraph 3,
Company may not pay the Deferred Compensation to Employee under this Paragraph
3, and Company shall have no further obligations with respect to any amounts
under this Agreement. For purposes of this Paragraph 3(e), "Misconduct" shall
mean (i) the final conviction of any felony, or (ii) the carrying out of any
activity or the making of any public statement which materially diminishes or
materially and untruthfully brings Southern into contempt, ridicule or
materially and reasonably shocks or offends the community in which the Southern
affiliate is located.
4. 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 3 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.
5. Publicity; No Disparaging Statement. Except as otherwise provided in
Paragraph 14 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.
6. No Employment. Employee agrees that he shall not seek re-employment
as an employee, leased employee or independent contractor with the Company or
the Southern Company or any of its subsidiaries or affiliates (collectively, for
purposes of this Paragraph 6, "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, leased 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 Senior Vice President, Human Resources, approves of such rehiring.
7. 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 ▇▇▇▇▇▇▇▇▇▇ ▇, ▇, ▇ , ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇.
(▇) Definitions. For purposes of Paragraphs 7, 8, 9, 10 and 11 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 Entities before the Alabama 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.
8. 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 ending 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 Deferred Compensation Agreement
with the Company which imposes certain restrictions on him.
9. 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 9(A) in any business
substantially similar or competitive with that in which the Southern Entities
were engaged during his employment.
10. 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 protection described in Paragraph 10(b),
which Employee agrees is reasonable.
(b) Employee covenants and agrees that for a period ending 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.
11. 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 payment described in
Paragraph 3 is also in consideration of his covenants and agreements contained
in Paragraphs 7 through 11 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.
12. 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.
13. 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.
14. 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
anyone 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.
15. 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 Alabama, United States of America
(without giving effect to principles of conflicts of laws).
16. 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, in whatever
form, between the parties concerning the subject matter hereof, including, but
not limited to, that certain letter from ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of
Alabama Power Company dated August 22, 2002 and any other discussions,
agreements, letters, memorandums or understandings concerning payments to be
made by the Company in order to induce Employee to remain Chief Financial
Officer of the Company or in connection with Employee's termination of
employment. This Agreement shall not be modified or amended except by a written
instrument signed by both Employee and an authorized representative of the
Company.
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. Employee acknowledges and agrees that the covenants and agreements
contained in this Agreement, including, without limitation, the covenants and
agreements contained in Paragraphs 7, 8, 9, 10 and 11, shall be construed as
covenants and agreements independent of each other or any other contract between
the parties hereto and that the existence of any claim or cause of action by
Employee against Company, whether predicated upon this Agreement or any other
contract, shall not constitute a defense to the enforcement by Company of said
covenants and agreements.
18. 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.
19. 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.
20. No Effect On Other Arrangements. It is expressly understood and
agreed that the payment made in accordance with this Agreement is 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.
21. Tax Withholding. There shall be deducted from the 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.
22. Compensation. Any compensation paid 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. The payment under this Agreement shall not be considered
wages, salaries or compensation under any other employee benefit plan.
23. 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.
24. 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 11th day of April, 2003.
"COMPANY"
ALABAMA POWER COMPANY
By: /s/▇. ▇. ▇▇▇▇▇▇▇
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Its: President
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"EMPLOYEE"
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
EXHIBIT 1 to
Deferred Compensation Agreement
with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
RELEASE AGREEMENT
THIS RELEASE ("Release") is made and entered into by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III ("Employee") and ALABAMA POWER COMPANY, and its
successor or assigns ("Company").
WHEREAS, Employee and Company have agreed that Employee's employment
with Alabama Power Company shall terminate on ;
WHEREAS, Employee and the Company have previously entered into that
certain Deferred Compensation Agreement, dated _________________, 2003
("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 or the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, 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 Deferred Compensation
Agreement, the Company agrees to pay the Employee, his spouse or his estate, as
the case may be, the amount provided in Paragraph 3 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"
ALABAMA 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"
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III
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Date_____ _________
WITNESSED BY:
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Date