Exhibit 10(e)27
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") made and entered into by
and
between MISSISSIPPI POWER COMPANY (the
"Company") and HENRY E. BLAKESLEE, III
("Employee").
W I T N E S S E T H
WHEREAS, Employee has been employed by the Company for
approximately
thirty-nine (39) 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
January 1, 2004;
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 January 1,
2004 (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
amount 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 6, 7, 8, 9 and 10 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.
(a) 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
Twenty-Five Thousand Dollars and No Cents
($725,000.00). 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 amount shall be paid in
a lump sum as soon as practicable
after the occurrence of such an event. 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). In the event
Employee dies before receiving
payment of the amount described in this
Paragraph 2(a) hereof, such amount shall
be paid to Employee's spouse, if living, or
if not, to the Employee's estate. In
accordance with Paragraph 21, Employee
shall be responsible for all state and
federal income taxes and his share of FICA
taxes owed on the foregoing amount,
and Company shall make appropriate
withholding of these amounts.
(b) Notwithstanding the foregoing, in the event Employee engages
in
Misconduct, as defined below, before or
after Employee's Termination Date but
prior to receiving the payment described in
Paragraph 2(a) above, Company may
not make the payment to Employee under this
Paragraph 2, and Company shall have
no further obligations under this
Agreement. For purposes of this Paragraph
2(b), "Misconduct" shall mean (i) the final
conviction of any felony, (ii) the
carrying out of any activity or the making
of any public statement which
materially diminishes or materially and
untruthfully brings the Southern Company
or any of its affiliates or subsidiaries
into contempt, ridicule or materially
and reasonably shocks or offends the
community in which the Southern Company or
its affiliate or subsidiary is located, or
(iii) a material breach of any of his
obligations under this Agreement.
3. 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.
4. No Employment. Except as otherwise provided in Paragraph 5
hereof,
Employee agrees that he shall not seek
re-employment as an employee, temporary
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 4, "The Southern
Company System"), for a period of
twenty-four (24) months following the
execution of the Release attached hereto
as Exhibit 1. Except as otherwise provided
in Paragraph 5 hereof, the Company or
any member of The Southern Company System
shall not rehire the Employee as an
employee, temporary 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.
5. Consulting Services. Upon Employee's voluntary termination
of
employment with the Company on his
Termination Date and effectiveness of the
Release attached hereto as Exhibit 1,
Employee agrees to execute the Consulting
Agreement attached hereto as Exhibit 2 and
provide consulting services to the
Company as an independent contractor in
accordance with such Consulting
Agreement.
6. 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
Paragraphs 6, 7, 8, 9 and 10 herein.
(b)
Definitions. For purposes of Paragraphs 6, 7, 8, 9 and 10
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 Mississippi 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.
7. 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.
8. 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 8(A) in any business
substantially similar or competitive with
that in which the Southern Entities
were engaged during his employment.
9. 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.
10. 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 2 is also in consideration of his
covenants and agreements contained
in Paragraphs 6 through 10 hereof.
(b) In the event Employee and the Company do not enter into the
Consulting Agreement attached hereto as
Exhibit 2, 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.
11. 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. Notwithstanding the foregoing, in
the event Company and Employee enter
into the Consulting Agreement attached
hereto as Exhibit 2, Employee may retain
Company materials necessary to provide the
services contemplated by such
Consulting Agreement.
12. 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.
13. 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, the Company shall
not be obligated to enter into the
Consulting Agreement attached hereto as
Exhibit 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.
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
Mississippi, 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 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.
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 6, 7, 8,
9 and 10, 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
