Exhibit 10a(25)
EMPLOYMENT SEPARATION and RELEASE AGREEMENT
between
J. J. Lees
and
Atlantic City Electric Company
This Employment Separation and Release Agreement
(Agreement) is made and entered into the 26th day of April,
1994 by and between J. J. LEES (Incumbent) residing at 8201
Atlantic Avenue in the City of Margate, County of Atlantic,
State of New Jersey and Atlantic City Electric Company
(Company) having a principal Executive Office located at 6801
Black Horse Pike, Pleasantville, County of Atlantic, State of
New Jersey.
WHEREAS, Incumbent has been employed by the Company since
June 1, 1970 and, for some time past has served in the
capacity of an Officer; and
WHEREAS, Incumbent had given oral notice and has
confirmed in a writing his intent to terminate and withdraw
from continued employment with the Company, as his voluntary
act and deed (hereinafter referred to as the "Notice of
Separation"); and
WHEREAS, the Company has agreed to accept the Notice of
Separation; and
WHEREAS, Incumbent and the Company have agreed that
Incumbent shall withdraw from and terminate the employment
relationship with the Company upon the terms and conditions
more fully set forth herein;
NOW, THEREFORE, in consideration of the mutual promises
and covenants herein contained which the parties hereto hereby
agree constitute fair, reasonable and valuable consideration,
Incumbent and the Company, intending to be legally bound,
hereby represent, covenant and agree as follows:
1. The Recital Clauses hereinabove set forth are
incorporated and made a material part of this Agreement.
2. Incumbent shall terminate and withdraw from full
time employment as an Officer and employee of the Company
effective close of business on June 3, 1994 (the "Termination
Date"). Incumbent acknowledges that he has selected the
Termination Date. Company acknowledges that it has agreed to
the Termination Date. Notwithstanding the Termination Date,
Incumbent shall be entitled to utilize accumulated vacation
days and other benefits which allow him to discontinue his
day-to-day activities as an employee as of April 26, 1994.
Nonetheless, he shall continue to serve as an Officer and
employee through the Termination Date.
3. In addition to any benefit to which Incumbent is
otherwise entitled by reason of having been an employee of the
Company, the Company agrees to:
(a) Pay Incumbent in a single lump sum payment an
amount equivalent to one (1) year of his current annual Base
Salary ($112,900.00) as established by the Board of Directors
of the Company, which shall be reduced by all deductions
required by law. This payment will be made within thirty (30)
days of the execution of this Agreement and attached General
Release by Incumbent, provided that Incumbent signs and
returns this Agreement and General Release not later than July
15, 1994 and the Revocation Period specified in Exhibit A
shall have expired without revocation by Incumbent. This
payment will then be made to Incumbent as soon as practicable
following expiration of the revocation period; and
(b) Pay Incumbent an Incentive Award pursuant to
the 1994 Management Annual Incentive Compensation Plan of
Atlantic Energy, Inc., and its Subsidiaries (the "Plan"). For
purposes of determining the amount of such Incentive Award,
Incumbent shall be deemed to have satisfactorily contributed
to the achievement of Performance Goals through May 31 of the
1994 Plan year (i.e. 5/12ths); and
(c) Deliver to Incumbent shares of stock pursuant
to the Company Long-Term Performance Incentive Plan currently
in effect covering the period January 1, 1993 through December
31, 1995. For purposes of determining the amount of stock to
be delivered to Incumbent, Incumbent will be credited with
service through May 31, 1994 and will be deemed to have
satisfactorily contributed toward the achievement of the
longer-term financial and operating performance objectives of
such Plan for the specified period; and
(d) Pay to the Incumbent, or his designated
beneficiary, all those benefits to which he is entitled by
reason of his having been an employee of the Company, which
shall be paid in the manner, amounts and at such times as are
provided in accordance with the terms and conditions thereof
as in effect on the Termination Date, and using the
Termination Date as the date of separation. This is
contingent upon Incumbent's execution and delivery of and
compliance with the terms of this Agreement in the manner
specified herein. A schedule of such benefits is attached
hereto as Exhibit "B"; and
(e) Provide Incumbent with continued coverage
under the Medical Expense Reimbursement Plan of the Company
through June 3, 1994; and reimburse Incumbent for medical
expenses incurred through that date. All such expenses shall
be submitted for processing in compliance with the Plan
requirements on or before September 1, 1994.
Payment of the Incentive Award and delivery of the
shares of stock referred to in Subparagraphs (b) and (c) of
this Article shall be consummated at such time as the payment
and award shall be made to all other Officers of the Company.
Should Incumbent die prior to receiving any of the
payments or shares of stock hereinabove listed, payment of
such amount and/or delivery of such shares shall be made to
the Estate of the Incumbent or to such other beneficiary as
Incumbent shall designate in writing to be delivered to the
Company prior to his death.
4. The consideration given to Incumbent pursuant to
this Agreement, with the exception of those benefits to which
he and his beneficiary or estate are otherwise entitled by
reason of his having been an employee of the Company,
constitute the total amount to which Incumbent is entitled as
a result of his employment with the Company and is paid in
satisfaction of any and all claims of any nature whatsoever,
however arising, whether known or unknown, which Incumbent has
or may have against the Company at any time as a result of,
relating to or arising out of his employment with the Company
or his separation therefrom.
5. Attached hereto and made a part hereof as Exhibit
"C" is Article VI of the By-Laws of Atlantic Energy, Inc.
(Atlantic Energy). Atlantic Energy, on behalf of itself and
the Company, warrants and represents that pursuant to these
By-Laws, it will provide Incumbent with indemnification
against liability (including attorney's fees and related
expenses) imposed upon or incurred by him in any threatened,
pending or completed investigation, claim, action, suit, or
proceeding, whether civil, administrative or investigative in
nature which may be instituted by or on behalf of Atlantic
Energy, or any of its Subsidiaries, inclusive of the Company,
against Incumbent. Atlantic Energy further represents and
warrants that in the event the By-Laws of Atlantic Energy are
hereafter amended to alter or extinguish such obligation to
indemnify, notwithstanding such amendment or alteration, the
obligation to indemnify as set forth herein shall nonetheless
remain in full force and effect. In the event that Atlantic
Energy refuses to indemnify Incumbent, or in the event a Court
of competent jurisdiction holds that Atlantic Energy is not
obligated to indemnify the Incumbent (other than where a
judgment or other final adjudication establishes that the acts
or omissions of the Incumbent involved a knowing violation of
law constituting criminal conduct) then the General Release
given to Atlantic Energy and its Subsidiaries, inclusive of
the Company by Incumbent shall become null and void for all
purposes and shall not bar Incumbent from thereafter asserting
any claim or counterclaim he may have against Atlantic Energy,
or its Subsidiaries, inclusive of the Company. Furthermore,
in the event Atlantic Energy does not provide such
indemnification to the Incumbent, neither Atlantic Energy nor
its Subsidiaries, inclusive of the Company, shall invoke any
defense based in whole or in part on any Statute of
Limitations or on the timeliness of such claim which may
thereafter be instituted by the Incumbent in accordance with
the provisions of this paragraph.
6. This Agreement shall apply to and be binding upon
all affiliated, related, parent, subsidiary and successor
corporations of the Company, and their assigns; and shall
apply to and be binding upon Incumbent, his personal
representative, heirs, executors, administrators, trustees,
successors, assigns and any and all persons who may succeed
the legal rights and interests of Incumbent.
7. In exchange for the undertakings of the Company
contained in Article 4, and as a condition precedent thereto,
Incumbent agrees to execute and deliver a General Release,
Waiver and Acknowledgement (Release) in the form attached
hereto as Exhibit A. Incumbent expressly acknowledges that he
is aware that he has rights under federal and state laws which
prohibit discrimination in employment based on race, sex,
national origin, age, religion, disability and veteran rights,
including the Age Discrimination in Employment Act, as
amended, Title VII of the Civil Rights Act of 1964, as
amended, the New Jersey Law Against Discrimination, the New
Jersey Conscientious Employee Protection Act, the New Jersey
Wage Law and the Americans with Disabilities Act (hereinafter
collectively referred to as the "Acts"); and further
acknowledges that this Agreement and the attached General
Release are intended to include, without limitation, a release
by him of any and all rights and claims arising out of his
employment with the Company and his withdrawal and separation
therefrom, including, but not limited to, all claims under any
and all federal, state, local and common laws dealing with
employment, separation and damages, including the Acts
hereinabove referred to in this Article. Incumbent further
agrees not to commence any legal action, in any form, against
any releasee identified in the attached General Release or any
other party connected with his employment with the Company
with respect to any right or claim, direct or indirect,
encompassed by the attached General Release and this
Agreement, except to enforce the terms of this Agreement.
8. Incumbent and Company agree that neither will
engage in any communications, oral or written, which would
injure the reputation of or interfere with existing or
prospective business relationships of the other. This
covenant shall be effective as of April 26, 1994.
Incumbent and Company agree that Company will
provide Incumbent with a Letter of Recommendation in the form
attached hereto as Exhibit D, the content of which has been
reviewed and accepted by Incumbent. This Letter of
Recommendation will be submitted in response to any and all
inquiries from prospective employers. Incumbent shall direct
all such inquiries to the attention of Jerrold J. Jacobs,
President and Chief Executive Officer of the Company, or his
successor.
9. Incumbent agrees that, except as expressly provided
below, he will not communicate or disclose the terms of this
Agreement or of the attached General Release to or with any
person(s) with the exception of members of his immediate
family, his attorney(s), his financial advisor(s) and/or his
accountant(s). In such communication or disclosure, Incumbent
shall inform the recipient of the information that same is
being provided in a confidential manner and subject to a
requirement of confidentiality.
Company agrees that it will treat this Agreement
and the attached General Release as a personnel item to be
retained in the personnel file of Incumbent and not to be
disclosed to third parties without the express written consent
of Incumbent; except to the extent that same shall be required
to be produced in any legal proceeding.
10. It is expressly understood and agreed that any
violation of the confidentiality provision in the preceding
Article by Incumbent or Company, or anyone acting on his or
its behalf, shall be deemed to be a material breach of this
Agreement.
11. Incumbent agrees and recognizes that his employment
relationship with the Company shall be terminated at his
voluntary request as contained in the Notice of Separation.
Incumbent acknowledges that he has no contract or other rights
to employment or re-employment with the Company.
12.A. Incumbent agrees that he shall not, directly
or indirectly, knowingly disclose to any other person, firm or
corporation nor appropriate to his own use or to the use of
any person, firm or corporation, any Confidential Information
(as defined herein) used by or belonging to the Company or its
parent, subsidiary or affiliates, except as same may be
expressly authorized in advance by the Company in a writing
signed by a Senior Officer of the affected company.
For purposes of this Agreement, the term Senior
Officer shall mean a person holding a title within any of the
Companies which constitute the Company of Senior Vice
President or higher.
For purposes of this Agreement, the term
Confidential Information includes, by way of illustration and
not limitation, matters of a technical nature such as "know
how", "formulae", "processes", "procedures", "techniques",
"machinery", "apparatus, "inventions", "studies", "research
projects", "technical data", "development plans", "product
specifications", as well as matters of a business or financial
nature such as, by way of illustration and not limitation,
information about the cost, sources of, and arrangements for
service or materials supplied to customers or clients of the
Company, submission and proposal procedures, production, labor
and/or material costs, profits and losses, prices, discounts,
sales, markets, customer lists, future plans, trade secrets
and proprietary information not generally available to the
public.
B. In addition, Incumbent represents and warrants
that he will never, directly or indirectly lecture upon or
publish articles concerning any Confidential Information
without first having obtained from the affected company prior
approval and written consent in the manner hereinabove
contained.
C. Commencing on April 26, 1994 Incumbent shall
commence to act with due diligence in order that, on or before
June 3, 1994, Incumbent shall have turned over to the Company
all documents and other things, and all copies thereof within
his possession, custody or control which may contain or which
may have been derived from, or which may have the potential of
disclosing any Confidential Information.
D. Notwithstanding the preceding subparagraphs of
this Article, it is understood and agreed that Incumbent shall
not be bound by any covenant not to compete. He shall be
permitted to engage in employment with a competitor of the
Company without limitation as to time or geographical area.
However, by engaging in such employment, Incumbent represents
and warrants that he will not violate the provision of
Subparagraphs A through C of this Article and will not,
directly or indirectly, disclose any Confidential Information
of the Company or its parent, subsidiary or affiliates, except
as expressly authorized in advance by the Company in the
manner set forth in Subparagraph A of this Article.
13. In the event of a breach by Incumbent of Article 7,
8, 9 or 12 of this Agreement or of the attached General
Release, the Company shall be relieved and discharged of its
obligations under the terms of this Agreement to provide
Incumbent with any consideration which is in addition to the
payments and benefits to which he and his beneficiaries or his
estate are entitled by reason of his having been an employee
of the Company in accordance with the terms and conditions of
such plans and policies; and shall thereupon be entitled to
institute an action to obtain any damages that may arise from
such breach. In addition, the parties recognize that money
damages are inadequate to compensate the Company for
irreparable harm that may result from a breach of the
confidentiality provisions contained within Article 12 of this
Agreement and that equitable remedies are appropriate,
inclusive of injunctive relief, which shall be in addition to
any other remedies available to the Company at law or in
Equity.
In the event of a breach by the Company of Article 8
or 9 of this Agreement or of the attached General Release, the
Incumbent shall be entitled to institute an action for any
damages which may arise from such a breach. In addition, the
parties recognize and agree that money damages may be
inadequate to compensate the Incumbent for irreparable harm
that may result from a breach of the recommendation and
confidentiality provisions contained in Articles 8 and 9,
respectively, and that equitable remedies are appropriate,
inclusive of injunctive relief, which shall be in addition to
any other remedies available to the Incumbent at law or in
Equity.
In the event either party shall be required to
commence an action, at law or in equity, to enforce its rights
under or as a result of a breach of this Agreement, the
parties shall bear their own attorneys fees and costs.
14. Incumbent acknowledges that he has been informed of
his right to consider this Agreement and the terms thereof for
a period of at least twenty-one (21) days prior to executing
and delivering the Agreement to the Company. He further
acknowledges that he understands his right to revoke this
Agreement and the attached General Release by giving written
notice to the Company in the manner set forth in the General
Release attached hereto as Exhibit A. Such notice shall be
effective upon receipt by the Company. This right is being
provided to Incumbent as required under the Age Discrimination
in Employment Act.
Incumbent further acknowledges that he has been
given the opportunity to have this Agreement and the attached
General Release reviewed by attorney(s), accountant(s) and/or
financial advisor(s) of his own choice.
15. This Agreement and the attached General Release
contain the entire Agreement with respect to the matters
contained herein and therein and cannot be altered or amended
except in a writing duly executed by the parties or their
legal representatives.
16. Nothing in this Agreement or the attached General
Release shall be construed or considered as evidence of or an
admission by the Company of a violation of the United States
Constitution, of the Age Discrimination in Employment Act, of
Title VII of the Civil Rights Act of 1964, as amended, of the
New Jersey Law against Discrimination, of the New Jersey
Conscientious Employee Protection Act, of the New Jersey Wage
Law, of the Americans with Disabilities Act, of any other act,
law, rule or regulation referred to herein or of any other
federal, state or local law, statute, ordinance, code,
regulation, rule or order; and any such violation is
specifically denied.
17. This Agreement and the attached General Release
shall be interpreted, construed and enforced in accordance
with the laws of the State of New Jersey. Should any part of
this Agreement or of the attached General Release be
determined to be unenforceable by a court of competent
jurisdiction, the parties shall immediately meet to amend the
Agreement or Release to effectuate the intent of the parties;
and the surviving portions of the Agreement and Release shall
remain binding and enforceable and in full force and effect.
18. Any notices required to be given under this
Agreement or Release shall be either hand-delivered or
delivered by certified mail, return receipt requested and
shall be directed as follows:
If to Company:
Jerrold L. Jacobs
Chairman, President & CEO
Atlantic City Electric Company
6801 Black Horse Pike
P.O. Box 1264
Pleasantville, NJ 08232
If to Incumbent:
James J. Lees
8201 Atlantic Avenue
Margate, New Jersey 08402
or to such other person and/or to such other address as the
party to receive notice may, from time to time, indicate in
writing.
IN WITNESS WHEREOF, intending to be legally bound, the
parties hereto attach their signatures and seals effective the
date and year first above written.
DATE: INCUMBENT:
6-22-94 /s/ JAMES J. LEES
JAMES J. LEES
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on June 22, 1994
JAMES J. LEES, personally came before me and acknowledged
under oath, to my satisfaction, that he is the person named in
and that he did personally sign this Employment Separation and
Release Agreement.
/s/ Robert K. Marshall
Notary Public - State of New Jersey
ATTEST: DATE: ATLANTIC CITY ELECTRIC
COMPANY:
L. M. Walters 6-22-94 /s/ Jerrold L. Jacobs
Secretary BY: Jerrold L. Jacobs
GENERAL RELEASE, WAIVER and ACKNOWLEDGMENT
In consideration of the undertakings of Atlantic Energy,
Inc. and its Subsidiaries, inclusive of Atlantic City Electric
Company (hereinafter collectively referred to as the
"Company") set forth in Article 4 of the Employment Separation
and Release Agreement to which this Exhibit A is appended,
which provide for payment to me over and above those payments
and benefits to which I am otherwise entitled by reason of
having been an employee of the Company and subject to the
terms and conditions thereof, I hereby release, waive and
discharge the Company, and each of them, and their present and
former Directors, Officers, employees, agents, representatives
and attorneys and their respective successors, assigns,
executors, administrators, estates and heirs from and against
any and all claims of whatever nature, inclusive of claims for
wrongful discharge, property damage, personal or bodily injury
which I, my estate and heirs may have against any of them.
This Release is intended to release, relinquish, discharge,
extinguish and waive any and all claims, whether known or
unknown, direct or indirect which were or could have been or
may hereafter be asserted, resulting from anything which has
occurred through the effective date of this Release, including
claims for attorneys' fees. I hereby promise not to commence
or pursue,
or to authorize anyone to commence or pursue on my behalf or
in my interest any action whether legal, equitable or
administrative, or to otherwise seek to recover any damages,
remedy or relief of any kind from any releasee within the
contemplation of this Release based upon any claim covered by
this General Release, Waiver and Acknowledgment.
Without limiting the scope of the foregoing in any way, I
hereby acknowledge and confirm that my separation from
employment as an Officer and employee of the Company
constitutes my voluntary act and deed made of my own free will
and without duress, undue influence or any other pressure or
condition exerted or imposed upon me in any form by the
Company or anyone acting on its behalf; and I specifically
release and waive any and all claims relating to or arising
out of any aspect of my employment with the Company or the
separation therefrom including, but not limited to, all claims
under the Age Discrimination in Employment Act (29 USC Sec.
621, et seq..), Title VI of the Civil Rights Act of 1964 (42
USC Sec. 2000(e), et seq.), as amended, the New Jersey Law
Against Discrimination (N.J.S.A. 10:5-1 et seq.), the New
Jersey Conscientious Employee Protection Act (N.J.S.A. 34:19-1
et seq.), the New Jersey Wage Law (N.J.S.A. 34:11-44.1 et
seq.) and the Americans with Disabilities Act (42 USC Sec.
12101 et seq.), any contract of employment, express or
implied, any provision of the Constitution of the United
States of America or of the Constitution of the State of New
Jersey, and any other law, whether common or statutory, and
any rule, regulation or order of the Unites States, the State
of New Jersey, or any other state, and all claims arising out
of any legal restrictions on the rights of the Company or its
Affiliates with respect to termination of employment.
I UNDERSTAND THAT FOR A PERIOD OF SEVEN (7) CALENDAR DAYS
FOLLOWING THE SIGNING OF THIS GENERAL RELEASE, WAIVER AND
ACKNOWLEDGEMENT, I MAY REVOKE IT IN A WRITING ACKNOWLEDGED BY
THE CHIEF EXECUTIVE OFFICER OF THE COMPANY, AND THAT THIS
GENERAL RELEASE, WAIVER AND ACKNOWLEDGMENT WILL NOT BE
EFFECTIVE OR ENFORCEABLE UNTIL SUCH REVOCATION PERIOD HAS
EXPIRED. UPON EXPIRATION OF SUCH REVOCATION PERIOD I
UNDERSTAND AND ACKNOWLEDGE THAT THIS GENERAL RELEASE, WAIVER
AND ACKNOWLEDGEMENT AND THE EMPLOYMENT SEPARATION AND RELEASE
AGREEMENT TO WHICH IT IS APPENDED SHALL BECOME FINAL AND
ENFORCEABLE.
/s/ JAMES J. LEES
JAMES J. LEES
DATED: June 22, 1994
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on June 22, 1994
JAMES J. LEES, personally came before me and acknowledged
under oath, to my satisfaction, that he is the person named in
and that he did personally sign this General Release, Waiver
and Acknowledgement.
/s/ Robert K. Marshall
Notary Public - State of New Jersey
RELEASE
In mutual consideration of the execution and delivery of
the General Release, Waiver and Acknowledgment by James J.
Lees (Incumbent), effective upon the expiration of the
Revocation Period, as set forth therein, without exercise by
Incumbent of such revocation, thereupon Atlantic Energy, Inc.
and its Subsidiaries, inclusive of Atlantic City Electric
Company (hereinafter collectively referred to as the
"Company") hereby release, waive and discharge the Incumbent
from and against any and all claims, exclusive of claims
arising out of or based upon criminal conduct by the Incumbent
which the Company may have against Incumbent and which arose
during the term of Incumbent's employment with the Company.
Except as hereinabove set forth above, this Release is
intended to release, relinquish, discharge, extinguish and
waive any and all claims, except claims founded upon criminal
conduct by Incumbent, whether known or unknown, direct or
indirect, which were or could have been or may hereafter be
asserted, resulting from anything which occurred through the
Termination Date of Incumbent's employment with the Company.
The Company further promises not to commence or pursue, or to
authorize anyone to commence or pursue on its behalf, or in
its interest, any action, whether legal, equitable or
administrative, or to otherwise seek to recover any damages,
remedy or relief of any kind from Incumbent within the
contemplation of this Release, based upon any claim covered by
this Release. Notwithstanding the above, nothing contained
herein is intended to preclude the Company from instituting
any such action in the event of Incumbent's breach of the
Employment Separation and Release Agreement or of Incumbent's
breach of the General Release, Waiver and Acknowledgement
hereinabove contained.
ATLANTIC ENERGY, INC. AND ITS
SUBSIDIARIES, INCLUSIVE OF ATLANTIC
CITY ELECTRIC COMPANY
BY: /s/ JERROLD L. JACOBS
JERROLD L. JACOBS
ATTEST:
/s/ J. G. Salomone
J. G. Salomone
Secretary
DATED:June 22, 1994