Exhibit 10.1
EXHIBIT 2 to
Separation Agreement
with Don E. Mason
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this 3rd day of January, 2005 by and between MISSISSIPPI POWER COMPANY
("Company"), and DON E. MASON ("Contractor").
BACKGROUND:
Company desires to retain Contractor to provide certain services to
Company, and Contractor desires to provide such services to Company, all subject
to the terms and conditions set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premise, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Services. Subject to the terms and conditions set forth in this
Agreement, Company hereby retains Contractor to provide to Company the services
more particularly described on Exhibit A attached hereto (the "Services"), and
Contractor agrees to render the Services to Company.
2. Obligations of Contractor. In its performance of the Services
hereunder, Contractor shall at all times comply with and abide by the terms and
conditions set forth in this Agreement. Contractor shall further perform the
Services in accordance with all applicable laws, rules and regulations and by
following and applying the highest professional guidelines and standards. In
addition, Contractor shall comply with the Company's Independent Contractor Site
Rules and Standards of Behavior set forth in Exhibit B attached hereto and
incorporated herein by reference.
3. Compensation.
(a) Subject to the terms and conditions set forth in this Agreement,
and as compensation for the Services, Company shall pay to Contractor, and
Contractor shall accept a fee of Seven Hundred Fifty Dollars and No Cents
($750.00) per day worked.
(b) Contractor shall invoice Company for days worked on a monthly
basis. Invoices shall be directed to the Chief Executive Officer of the Company,
and Company shall pay Contractor within 15 days of receipt of such invoice.
(c) Contractor shall be reimbursed by Company, upon remittance of
receipts to the Company, for reasonable expenses incurred while conducting work
as an independent contractor under this Agreement which are approved by the
Company in advance.
(d) Because Contractor is an independent contractor, Company shall not
deduct any federal, state or local taxes or other withholdings from any sums
paid to Contractor under this Agreement, and Contractor hereby acknowledges and
agrees to fully and timely pay, and indemnify and hold harmless Company from any
liability for, any and all federal, state and local taxes or assessments of any
kind arising out of any payment made by Company to Contractor. Contractor shall
be responsible for all tax reporting, tax payments, withholdings, social
security taxes, unemployment taxes, insurance and other payments, expenses and
filings required to be made or paid by it.
4. Term and Termination.
(a) Unless sooner terminated pursuant to Section 4(b), (c), or (d)
hereof, the term of this Agreement shall be for approximately eighteen (18)
months, commencing on the later of January 1, 2005 or the effective date of the
Release Agreement between Contractor and the Company and expiring on June 30,
2006 ("Term").
(b) Notwithstanding anything herein to the contrary, Company may cancel
and terminate this Agreement for any reason by giving Contractor fourteen (14)
days' prior written notice of such termination.
(c) Notwithstanding anything herein to the contrary, either party
hereto, in addition to any other rights and remedies such party may have against
the other party hereto at law, in equity or hereunder, may cancel and terminate
this Agreement if the other party fails to correct or cure any material breach
hereunder after ten (10) days' prior written notice of such breach from the
non-breaching party.
(d) Notwithstanding anything herein to the contrary, Company may
immediately cancel and terminate this Agreement in the event Contractor violates
Company's Independent Contractor Site Rules and Standards of Behavior set forth
in Exhibit B attached hereto and incorporated herein by reference.
(e) In the event this Agreement is terminated pursuant to Section 4(b),
(c), or (d) above, Contractor shall only be entitled to fees for days worked
through the date of the termination of this Agreement. Company shall have no
further obligations with respect to the payment of any compensation hereunder
after Contractor's termination pursuant to Section 4(b), (c) or (d), except as
provided in this Section 4(e).
5. Independent Contractor. In the performance of this Agreement, both
Contractor and Company will be acting in their own separate capacities and not
as agents, employees, partners, joint venturers or associates of one another. It
is expressly understood and agreed that Contractor is an independent contractor
of Company in all manners and respects. The parties further agree that:
(a) Contractor is not authorized to bind Company to any liability or
obligation or to represent that Contractor has any such authority.
(b) Contractor shall obtain and maintain (at Contractor's own cost) any
required insurance or other protection required for the performance of the
Services under this Agreement.
(c) Contractor shall be solely and exclusively responsible and liable
for all expenses, costs, liabilities, assessments, taxes, maintenance,
insurance, undertakings and other obligations incurred by Contractor at any time
and for any reason as a result of this Agreement or the performance of Services
by Contractor (including, but not limited to, the taxes and insurance premiums
described in Section 3(d), above), except for the reimbursement of expenses as
described in Section 3(c) of this agreement.
(d) Contractor shall be solely and exclusively responsible for
obtaining and providing (at Contractor's own cost) whatever computer, training,
software or other equipment Contractor believes is necessary to complete the
Services required under this Agreement.
(e) Contractor shall complete the Services required under this
Agreement according to Contractor's own means and methods of work which shall be
in the exclusive charge and control of Contractor and which shall not be subject
to the control or supervision of Company, except as to the results of the work.
(f) Contractor shall not be subject to Company's employee personnel
policies and procedures. Contractor also shall not be eligible to receive any
employee benefits or participate in any employee benefit plan sponsored by
Company as a result of performing services under this Agreement, including, but
not limited to, any retirement plan, insurance program, disability plan, medical
benefits plan or any other fringe benefit program sponsored and maintained by
Company for its employees.
(g) Company and Contractor acknowledge and agree that Contractor shall
not provide the Services to Company on a full-time basis. Nothing in this
Agreement shall prevent Contractor from engaging in other activities for and on
behalf of other clients during the Term of this Agreement. However, Contractor
acknowledges that Contractor is subject to certain non-disclosure and
non-interference obligations under Paragraphs 6, 7, 8, 9 and 10 of that certain
Separation Agreement entered into by and between Contractor and Company dated
July 26, 2004, as well as certain non-disclosure obligations under Section 6
hereof.
6. Confidentiality and Ownership of Proprietary Property.
(a) For purposes of this Agreement, the following terms shall have the
following respective meanings:
(i) "Confidential Information" shall mean the proprietary or
confidential data, information, documents or materials
(whether oral, written, electronic or otherwise) belonging to
or pertaining to Company, the Southern Company or their
respective affiliates (collectively "Southern Entities"),
other than "Trade Secrets" (as defined below), which is of
tangible or intangible value to any of the Southern Entities
and the details of which are not generally known to the
competitors of the Southern Entities. Confidential Information
shall also include: (A) any items that any of the Southern
Entities have marked "CONFIDENTIAL" or some similar
designation or are otherwise identified as being confidential;
and (B) all non-public information known by or in the
possession of Contractor, its agents and employees related to
or regarding any proceedings involving or related to the
Southern Entities before the Mississippi Public Service
Commission or other Entities.
(ii) "Entity" shall mean any business, individual, partnership,
joint venture, agency, governmental agency, body or
subdivision, association, firm, corporation, limited liability
company or other entity of any kind.
(iii) "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) derive 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. Contractor 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.
(iv) "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 Contractor for
Company or any of the Southern Entities or their clients or
customers or by using any Southern Entity's time, personnel,
facilities, equipment, knowledge, information, resources or
material.
(b) In recognition of the need of Company to protect its legitimate
business interests, Contractor hereby covenants and agrees that Contractor shall
regard and treat all Trade Secrets and all Confidential Information as strictly
confidential and wholly-owned by Company, and shall not, for any reason, in any
fashion, either directly or indirectly, use, sell, lend, lease, distribute,
license, give, transfer, assign, show, disclose, disseminate, reproduce, copy,
misappropriate, or otherwise communicate any such item or information to any
third party or Entity for any purpose other than in accordance with this
Agreement or as required by applicable law: (A) with regard to each item
constituting all or any portion of a Trade Secret, at all times such information
remains a "trade secret" under applicable law; and (B) with regard to any
Confidential Information, at all times during this Agreement and for a period of
three (3) years following the expiration or termination of this Agreement for
any reason.
(c) Contractor shall exercise its best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential Information of Company or
any of the Southern Entities known by, disclosed or made available to
Contractor, whether in connection with this Agreement or any other past or
present relationship with Company or any of the Southern Entities. Contractor
shall immediately notify Company of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of which Contractor becomes aware.
Contractor shall assist Company and any of the other Southern Entities, to the
extent necessary, in the procurement or protection of the Southern Entities'
rights to or in any Work Product, Trade Secrets or Confidential Information.
(d) All Work Product shall be owned exclusively by 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.ss. 101 et seq., as
amended), and Contractor hereby unconditionally and irrevocably transfers and
assigns to Company all rights, title and interest Contractor 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 Work Product rights. Contractor agrees to execute and
deliver to Company, any transfers, assignments, documents or other instruments
which 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 Company.
7. Return of Materials. Immediately upon termination of this Agreement,
or at any point prior to or after that time upon the specific request of
Company, Contractor shall return to Company, all written or descriptive
materials of any kind belonging or relating to the Company or its affiliates,
including, without limitation, any Work Product, Confidential Information and
Trade Secrets, in Contractor's possession or control.
8. Public Statements and Press Releases. Company shall issue all public
statements concerning the work hereunder. Contractor shall not issue any press
releases, publications or other public communications describing or concerning
any acknowledged project of Company or any of the other Southern Entities
without the prior written consent of Company.
9. Remedies. The parties represent and agree that any disclosure or use
of any Trade Secrets or Confidential Information by Contractor, except as
otherwise permitted under this Agreement or authorized by Company in writing, or
any other violation of Sections 6, 7 and 8, would be wrongful and cause
immediate, significant, continuing and irreparable injury and damage to Company
and the subsidiaries or affiliates of Southern Company that is not fully
compensable by monetary damages. Should Contractor breach or threaten to breach
any provision of Sections 6, 7 and 8, Company and any subsidiary or affiliate of
Southern Company shall be entitled to obtain immediate relief and remedies in a
court of competent jurisdiction (including but not limited to damages,
preliminary or permanent injunctive relief and an accounting for all profits and
benefits arising out of Contractor's breach), cumulative of and in addition to
any other rights or remedies to which Company and the subsidiaries or affiliates
of Southern Company may be entitled by this Agreement, at law or in equity.
10. Indemnification. Contractor hereby indemnifies and agrees to defend
and hold harmless Company and its employees, officers, directors, agents,
affiliates and independent contractors from and against any and all damages,
losses, costs (including, without limitation, court costs and attorneys' fees),
settlements, suits, actions, expenses, liabilities and claims of any kind caused
by or resulting from any breach of this Agreement by Contractor or any other act
or omission of Contractor.
11. Notices.
(a) All notices provided for or required by this Agreement shall be in
writing and shall be delivered personally to the other designated party, or
mailed by certified or registered mail, return receipt requested, or delivered
by a recognized international courier service, as follows:
If to Company: Mississippi Power Company
Attention: Rodger Meinzinger
2992 West Beach Boulevard
Gulfport, Mississippi 39501
If to Contractor: Mr. Don E. Mason
5 Colonel Wink Drive
Gulfport, Mississippi 39507
(b) All notices provided for or required by this Agreement shall be
effective when delivered or on the third date following the date upon which such
notice is deposited, postage prepaid, in the mail pursuant to Section 11(a)
above.
(c) Either party hereto may change the address to which notice is to be
sent by written notice to the other party in accordance with the provisions of
this Section 11.
12. Miscellaneous.
(a) This Agreement, including all Exhibits hereto (which are
incorporated herein by this reference), contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
No waiver, termination or discharge of this Agreement, or any of the terms or
provisions hereof, shall be binding upon either party hereto unless confirmed in
writing. This Agreement may not be modified or amended, except by a writing
executed by both parties hereto. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's rights thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Mississippi, United States of America, without
giving effect to conflict of law provisions.
(c) Contractor may not assign this Agreement, in whole or in part,
without the prior written consent of Company, and any attempted assignment not
in accordance herewith shall be null and void and of no force or effect.
(d) This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(e) The headings contained herein are for the convenience of the
parties only and shall not be interpreted to limit or affect in any way the
meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute the same Agreement. Any signature page of any such counterpart, or
any electronic facsimile thereof, may be attached or appended to any other
counterpart to complete a fully executed counterpart of this Agreement, and any
facsimile transmission of any signature shall be deemed an original and shall
bind such party.
(g) If any provision of this Agreement shall be held void, voidable,
invalid or inoperative, no other provision of this Agreement shall be affected
as a result thereof, and accordingly, the remaining provisions of this Agreement
shall remain in full force and effect as though such void, voidable, invalid or
inoperative provision had not been contained herein.
(h) This Agreement shall not be construed more strongly against either
party hereto regardless of which party is responsible for its preparation.
(i) Upon the reasonable request of the other party, each party hereto
agrees to take any and all actions, including, without limitation, the execution
of certificates, documents or instruments, necessary or appropriate to give
effect to the terms and conditions set forth in this Agreement.
(j) Notwithstanding any expiration or termination of this Agreement,
the provisions of Sections 6, 7, 8, 9 and 10 hereof shall survive and remain in
full force and effect, as shall any other provision hereof that, by its terms or
reasonable interpretation thereof, sets forth obligations that extend beyond the
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused their
duly authorized representatives to execute, this Agreement as of the day and
year first written above.
"COMPANY"
MISSISSIPPI POWER COMPANY
By: /s/Anthony J. Topazi
Title: President
"CONTRACTOR"
DON E. MASON
/s/Don E. Mason
EXHIBIT A TO CONSULTING AGREEMENT
Services
Contractor shall manage, perform and provide professional consulting
services and advice, including, but not limited to, providing political lobbying
services, as may be requested in writing by the Chief Executive Officer of the
Company or his designee from time to time ("Services").
EXHIBIT B TO CONSULTING AGREEMENT
MISSISSIPPI POWER COMPANY
INDEPENDENT CONTRACTOR
SITE RULES AND STANDARDS OF BEHAVIOR
All independent contractors who are providing services to Mississippi
Power Company ("Company") are expected and required to refrain from engaging in
certain types of misbehavior. The following list contains some (but by no means
all) behaviors which independent contractors are required to refrain from
engaging in:
(a) Theft or destruction of the property of Company or its
employees, managers, customers or other doing business with
Company;
(b) Abusing, threatening or intimidating employees, managers,
customers, or others doing business with Company;
(c) Sexual or other harassment or discrimination;
(d) Unauthorized disclosure of confidential information;
(e) Providing services to Company in a manner which compromises
the health and safety of the general public or Company's
employees, managers, customers, or others doing business with
Company, or failing to report any known, unsafe conditions;
(f) Unauthorized use or possession of weapons, firearms, or
explosives on Company's property or while conducting business
on behalf of Company;
(g) Dishonesty or falsification of documents or records submitted
to or maintained by Company;
(h) Providing services to or on behalf of Company while under the
influence of alcohol or illegal drugs;
(i) Manufacturing, selling, distributing, dispensing, possessing,
or using illegal drugs (or any paraphernalia associated with
such illegal drugs) on Company property, while conducting
business on behalf of the Company or while traveling in
Company vehicles, or reporting to provide services on behalf
of the Company while under the influence of any illegal drugs;
(j) Unauthorized use of alcohol on Company property, while
conducting business on behalf of the Company or while
traveling in Company vehicles, or reporting to provide
services on behalf of the Company while under the influence of
alcohol (including any legal drug that contains alcohol);
(k) Fighting on Company's property or while providing services to
or on behalf of Company;
(l) Violating Company's Electronic Communication Acceptable Use
Policy;
(m) Violating any applicable law or regulation; or
(n) Use of obscene, disruptive, hostile or abusive language while
on the premises of Company or while providing services to
Company.