Exhibit 10a(19)
EMPLOYMENT SEPARATION and RELEASE AGREEMENT
between
Jerry G. Salomone
and
Atlantic Energy, Inc.
and its affiliated and subsidiary
companies inclusive of
Atlantic City Electric Company
This Employment Separation and Release Agreement (Agreement)
is made and entered into this 31st day of January, 1995 by and
among JERRY G. SALOMONE (Incumbent) residing at 306 Reed Road,
Absecon, County of Atlantic, State of New Jersey and Atlantic
Energy, Inc. and its affiliated and subsidiary companies
(sometimes hereinafter referred to as "Energy") including
Atlantic City Electric Company (hereinafter sometimes referred to
as "Atlantic") (hereinafter sometimes collectively referred to as
the "Company") having principal Executive Offices located at 6801
Black Horse Pike, Pleasantville, County of Atlantic, State of New
Jersey.
WHEREAS, Incumbent has been employed by the Company for some
time past in the capacity of an Officer and employee; and
WHEREAS, Incumbent has requested the Company to amend that
certain Employment Agreement dated February 10, 1994 among J. G.
Salomone, Atlantic Energy, Inc. and Atlantic City Electric
Company (the "Employment Agreement") to permit Incumbent to
terminate and withdraw from continued employment with the
Company, and to retire from the Company effective close of
business January 31, 1995 as his voluntary act and deed; and
WHEREAS, the Company has agreed to amend the Employment
Agreement to release Incumbent from his continuing obligations
thereunder in order to grant Incumbent his request to retire from
the Company effective close of business on January 31, 1995; and
WHEREAS, Incumbent and the Company have agreed that
Incumbent shall irrevocably withdraw from and terminate the
employment relationship with the Company and to retire from 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, and shall
resign as a Director of Atlantic effective close of business on
January 31, 1995 (the "Retirement Date"). Incumbent acknowledges
that he has selected the Retirement Date. Company acknowledges
that it has agreed to the Retirement Date selected by Incumbent.
Incumbent acknowledges that he has heretofore
voluntarily submitted Letters of Resignation resigning as a
member of the Board of Directors of all other subsidiaries of
Energy or of Atlantic for which he has served as a member of the
Board of Directors, and has also submitted his resignation as a
member of the Board of Managers of Cogenerations Partners of
America. Company acknowledges that such Letters of Resignation
have heretofore been accepted, the originals of which have been
filed in the corporate books and records of such companies.
3. Notwithstanding the Termination and Retirement Date,
Incumbent shall be entitled to receive payment for all
accumulated vacation and personal days to the extent same have
been earned, but unused during calendar years 1994 and 1995.
4. 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 an amount ($219,623.22) equivalent
to sixty-two (62) weeks of his annual Base Salary in effect as of
January 31, 1995 ($184,200.00), as established by the Board of
Directors of the Company, which shall be reduced by all
deductions required to be made by law. This payment shall be
made in monthly installments to be computed by the Company, with
the first such payment to be made March 1, 1995 and continuing to
be paid on the first business day of each month thereafter until
fully satisfied; and such amount shall not be subject to payment
of any interest thereon. Such payment will be made upon the
condition that Incumbent has executed and returned this Agreement
and the General Release, Waiver and Acknowledgment (General
Release) not later than January 31, 1995, and that the revocation
period specified in Exhibit A shall have expired without
revocation by Incumbent.
(b) Pay Incumbent an Incentive Award pursuant to:
(i) the 1994 Management Annual Incentive
Compensation Plan of Energy and its Subsidiaries in which
Incumbent is a participant (the "1994 Plan"); and
(ii) the 1995 Management Annual Incentive
Compensation Plan of Energy and its Subsidiaries in which
Incumbent is a participant (the "1995 Plan").
For purposes of the 1995 Plan, Incumbent shall be
deemed to have satisfactorily contributed toward the achievement
of the requisite goals through January 31, 1995. Therefore, any
award which may be granted by the Board of Directors in
accordance with and pursuant to the 1995 Plan shall be prorated
as to Incumbent and the prorated period shall be 1/12 of the
annual performance period.
For the 1994 Plan, Incumbent participated as an
employee for the entire plan period, being calendar year 1994.
Any award which may be granted by the Board of Directors shall be
in accordance with and pursuant to the 1994 Plan terms, and the
determination by the Board of Directors shall be final.
(c) Deliver to Incumbent those shares of stock to
which Incumbent is otherwise eligible in accordance with and
pursuant to the Company Long-Term Performance Incentive Plan
("LTPIP") 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 January 31, 1995 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 (i.e. 25/36ths of the period).
The stock will be delivered to Incumbent at the same time that
shares are otherwise distributed pursuant to the LTPIP.
(d) Deliver to Incumbent the Stock Option(s) together
with the restricted shares of stock to be determined in
accordance with and pursuant to the Equity Incentive Plan (the
"EIP") approved by the shareholders of Atlantic Energy, Inc. on
April 27, 1994. The Stock Option shall be exercised in
accordance with the provisions set forth in Section 5(h) of the
EIP and without acceleration. The restricted shares granted to
Incumbent pursuant to the EIP on April 27, 1994 will be awarded,
together with accumulated dividends, on a prorated basis at the
end of the first performance cycle and subject to performance
results, in the same manner as distributed to the other
participants in the EIP. The prorated period shall be deemed to
be 13/36ths of the total performance cycle.
(e) Provide Incumbent with continued coverage under
the Medical Expense Reimbursement Plan of the Company through
January 31, 1995; and, in addition, pay to Incumbent the
additional lump sum of Eight Thousand Dollars ($8,000.00)
intended to compensate Incumbent for certain medical procedures
currently in progress, but unbilled, and for which the Company
shall have no further obligation. This amount shall be treated
as income, and shall be added to the amount to be paid to
Incumbent pursuant to Subsection (a) of Paragraph 4 of this
Agreement, to be payable over the same period, without interest
and from which amount all deductions required by law shall be
taken.
(f) Pay to Incumbent, in a lump sum the present value
of the Supplemental Executive Retirement Plan (SERP) benefit
(using, for 1995, the Base Salary in effect as of 1/31/95) to
which Incumbent would be entitled at age 55 (grossed up for tax
purposes assuming an individual rate of 44.80%). Upon the making
of such payment to Incumbent, Company shall have no further
liability to Incumbent for any SERP benefit; except that the
Company shall be obligated to pay the Death Benefit pursuant to
the terms of the SERP upon Incumbent's death.
(g) Pay to the Incumbent, or his designated
beneficiary, all other 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 Retirement Date, and using the Retirement Date as the date of
separation.
(h) In the event the Board of Directors of Energy
shall recommend, and the Board of Directors of Atlantic shall
adopt, a resolution which shall otherwise increase the amount of
Base Salary compensation to be paid to the Officers of Energy and
of Atlantic during calendar year 1995, in such event the Board of
Directors shall, in their sole discretion, establish a dollar
amount for Incumbent to be used for the sole purpose of
calculating an additional lump sum payment to be made to
Incumbent applying the following formula:
(i) Amount of increase, if any, as may be
determined by the Board in its discretion, to
be multiplied by 25%; the product
(ii) To be multiplied by the PBGC factor in effect
during 1995 (11.5243); to be
(iii) grossed up for tax purposes assuming an
individual tax rate of 44.80%.
It is the intent of this provision to pay to
Incumbent an amount to make Incumbent whole as if such increase
in salary had been in effect on the Retirement Date and the
increased salary amount would have been utilized to calculate the
present value of the SERP benefit to which Incumbent would
otherwise have been entitled.
It is understood and agreed, however, that
Incumbent is not to receive any additional Base Salary payment,
or any other additional compensation as a result of such action
having been taken by the Board of Directors of Energy and of
Atlantic, except as specifically set forth in this subsection (h)
of Paragraph 4. It is also understood and agreed that the Board
of Directors shall have the sole discretion to make such a
determination and as to the amount of any such award; and the
determination by the Board of Directors shall be final.
Payment of the Incentive Award and delivery of those
shares of restricted stock and the Stock Option referred to in
Subparagraphs (b), (c) and (d) of this Paragraph or shall be
consummated and delivered to Incumbent at such time as such
payment and award shall be made to all other Officers of the
Company.
Should Incumbent die prior to receiving any of the
payments or those shares of stock hereinabove referenced, 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 to the extent permitted by the LTPIP
and the EIP.
Payment by the Company to Incumbent of the compensation
and benefits described in subsections (a) through (h) of this
Paragraph 4 shall be paid to Incumbent upon the condition that
Incumbent has executed and returned this Agreement together with
the General Release not later than January 24, 1995, and that the
revocation period specified in Exhibit A shall have expired
without revocation by Incumbent.
5. 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 retirement and separation
therefrom.
6. Attached hereto and made a part hereof as Exhibit "B"
is Article VI of the By-Laws of Energy. Energy, on behalf of
itself and its subsidiaries, warrants and represents that
pursuant to these By-Laws (and the By-Laws of the applicable
subsidiary companies), Incumbent will be provided 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 Energy, or any of its Subsidiaries, inclusive of Atlantic,
against Incumbent. Energy further represents and warrants that
in the event the By-Laws of Energy (or any subsidiary thereof)
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 Energy or its
applicable subsidiary refuses to indemnify Incumbent, or in the
event a Court of competent jurisdiction holds that Energy (or the
applicable subsidiary thereof) 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 or are otherwise beyond the scope of indemnity
provided by the By-Laws as in effect at the time of execution and
delivery of this Agreement) then the General Release given to
Energy and its Subsidiaries, inclusive of Atlantic by Incumbent
shall become null and void for purposes of the litigation or
claim for which indemnity is being sought by Incumbent, and shall
not bar Incumbent from thereafter asserting any claim or
counterclaim he may have against Energy, or its Subsidiaries,
inclusive of Atlantic arising out of such litigation and failure
to indemnify. Furthermore, in the event Energy does not provide
such indemnification to the Incumbent, neither Energy nor its
Subsidiaries, inclusive of Atlantic, 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
and limited to the litigation or claim for which indemnity is
being sought by Incumbent.
7. 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.
8. 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 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 Equal Pay Act of 1963, as amended, the Employee
Retirement Income Security Act of 1974 (ERISA), 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 do legally bind
Incumbent to REMISE, RELEASE AND FOREVER DISCHARGE the Company
and its affiliated corporate entities, its and their respective
officers, directors, employees and agents, and it and their
predecessors, successors, assigns, heirs, executors and
administrators, of and from any and all manner of actions and
causes of actions, suits, debts, demands and claims whatsoever,
at law or in equity whether arising out of his employment with
the Company and his withdraw and retirement therefrom which
Incumbent ever had, now has, or hereafter may have, or which his
heirs, executors or administrators hereafter may have by reason
of any matter, cause or thing whatsoever from the beginning of
his employment with the Company to the Retirement Date and, more
particularly, but without limitation of the foregoing terms, any
and all claims concerning or relating in any way to his
employment relationship and/or his voluntary termination from
employment with the Company and his Retirement 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, including any claims for counsel fees and
costs. It is expressly understood and agreed that this Agreement
shall operate as a clear and unequivocable waiver by Incumbent of
any claim for accrued or future wages or benefits except in
connection with any claim relating to pension or other retirement
benefits which may arise in the future. 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.
9. Incumbent and the Company mutually 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 or economic or career
prospects. The only exception to the foregoing shall be in those
circumstances in which Incumbent or the Company are obligated to
provide information in response to an investigation by a duly
authorized governmental entity or in response to legal
proceedings.
10. 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, in response to an investigation by a
duly authorized governmental entity, or as required to be
disclosed by law.
11. 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.
12. Incumbent agrees and recognizes that he has submitted a
voluntary request to the Company to modify and amend the terms of
a certain Employment Agreement in order to permit Incumbent to
retire without violating the terms of said Employment Agreement,
and that the Company has agreed to modify the terms of the
Employment Agreement to allow Incumbent to retire; and that this
Employment Separation and Release Agreement and the attached
General Release constitute a material portion of the amendment to
the Employment Agreement and have served as a material inducement
to Company to amend the Employment Agreement.
13.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 any of
its subsidiaries or affiliates, except as 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. Incumbent shall act with due diligence in order
that, on or before February 1, 1995, 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 of any of its
subsidiaries or affiliates, except as expressly authorized in
advance by the Company in the manner set forth in Subparagraph A
of this Article.
14. In the event of a breach by Incumbent of any of
Articles 8, 9, 10 or 13 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 13 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 9 or 10 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 9 and 10, 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.
15.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
this Agreement to the Company; and that Incumbent has considered
this Agreement and the terms thereof for in excess of twenty-one
(21) days. 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; and that Incumbent has provided
comments which have been incorporated into this Agreement to his
satisfaction.
16. In further consideration of the undertakings by
Company, which consideration is deemed by Incumbent to be fair,
adequate and reasonable, Incumbent agrees, covenants and warrants
that Incumbent shall hereafter, and at all reasonable times,
cooperate with the Company and any affiliates and subsidiaries
thereof in the analysis, prosecution or defense of any claim
which may hereafter be asserted, as to which Incumbent has
knowledge as a result of his employment with the Company, which
shall include but not be limited to Incumbent's attendance at
depositions, trial and similar activities. The Company shall
exercise reasonable efforts to minimize Incumbent's participation
and to cooperate with Incumbent in scheduling appearances at such
proceedings. This agreement to cooperate shall extend to any
matters which are alleged to have arisen during Incumbent's
employment with the Company.
17. 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.
18. 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 Equal Pay Act of 1963, as amended, of the Employee
Retirement Income Security Act of 1974 (ERISA), as amended, of
the New Jersey Conscientious Employee Protection Act, 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.
19. 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.
20. 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:
Jerry G. Salomone
306 Reed Road
Absecon, NJ 08201
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:
1/31/95 /s/ J. G. Salomone
J. G. Salomone
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on January 31, 1995,
Jerry G. SALOMONE, 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/ Paula M. James
Notary Public - State of New Jersey
ATTEST: DATE: ATLANTIC CITY ELECTRIC
COMPANY:
/s/ L. M. Walters 1/31/95 /s/ Jerrold L. Jacobs
L. M. Walters, BY: Jerrold L. Jacobs
Secretary President and Chief
Executive Officer
ATTEST: DATE: ATLANTIC ENERGY, INC.:
/s/ J. E. Franklin, II 2/6/95 /s/ J. M. Galvin, Jr.
J. E. Franklin, II BY: J. M. Galvin, Jr.
Asst. Secretary Chairman of the
Personnel Committee
of Atlantic Energy, Inc. and
designated by the Board of
Directors of Atlantic Energy,
Inc. as the individual
authorized to execute and
deliver this Employment
Separation and Release
Agreement on behalf of
Atlantic Energy, Inc.
GENERAL RELEASE, WAIVER and ACKNOWLEDGMENT
In consideration of the undertakings of Atlantic Energy,
Inc. and each of its Subsidiaries, inclusive of Atlantic City
Electric Company (hereinafter collectively referred to as the
"Company") set forth in Article 5 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 be legally binding and 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 VII 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.), the Equal Pay Act
of 1963 (29 USC Sec. 206, et seq.), the Employee Retirement
Income Security Act of 1974 (ERISA), as amended, (29 USC Sec.
301, et seq.), the Employment Contract dated February 10, 1994,
as amended, any other 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 and retirement except for any claims
regarding pension or other retirement benefits which may arise in
the future.
I certify that I have read the terms of this General
Release, Waiver and Acknowledgment, that I have been advised by
the Company to consult an attorney of my own choice prior to
executing this Agreement, that I have discussed it with my
attorney, and that he understands its terms and effects. I
further acknowledge that I am executing this Agreement and
Release of my own volition, with a full understanding of its
terms and effects, and with the intention of releasing all claims
recited herein in exchange for the consideration described
herein, which I acknowledge to be fair, adequate and satisfactory
to me. Neither the Company nor its agents, representatives,
employees or attorneys have made any representations to me
concerning the terms or effects of this General Release, Waiver
and Acknowledgment other than those contained herein and in the
Employment Separation and Release Agreement to which it is a
part.
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/ J. G. SALOMONE
J. G. SALOMONE
DATED: January 31, 1995
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on January 31, 1995, Jerry G.
Salomone, 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/ Paula M. James
Notary Public
State of New Jersey
ATLANTIC CITY ELECTRIC COMPANY
BY:/s/ J. L. Jacobs
J. L. Jacobs
President & Chief Executive Officer
ATTEST:
/s/ L. M. Walters
L. M. Walters, Secretary
DATED:January 31, 1995
ATLANTIC ENERGY, INC.
BY: /s/ J. M. Galvin, Jr.,
J. M. Galvin, Jr.,
Chairman of the Personnel Committee
of Atlantic Energy, Inc. and
designated by the Board of
Directors of Atlantic Energy, Inc.
as the individual authorized to
execute and deliver this General
Release, Waiver and Acknowledgment
on behalf of Atlantic Energy, Inc.
ATTEST:
/s/ J. E. Franklin, II
J. E. Franklin, II, Assistant Secretary
DATED: February 6, 1995
AMENDMENT TO EMPLOYMENT AGREEMENT
among
Jerry G. Salomone, Atlantic City Electric Company
and Atlantic Energy, Inc.
THIS Employment Agreement Amendment is entered into
effective the 31st day of January, 1995 among Atlantic City
Electric Company, a corporation of the State of New Jersey
(hereinafter the "Company"), Atlantic Energy, Inc. ("Energy") and
Jerry G. Salomone ("Executive") (collectively the "Parties").
WHEREAS, an Employment Agreement was entered into among the
Parties on the 10th day of February, 1994; and
WHEREAS, the Term of Employment pursuant to the Employment
Agreement expires at the close of business on the date of the
Annual Meeting of the shareholders of Energy in 1997, subject
only to such earlier termination as specifically provided within
Article 5 of the Employment Agreement; and
WHEREAS, the Parties hereto agree that none of the Early
Termination Provisions enumerated within Article 5 of the
Employment Agreement which would allow for Termination by the
Executive, by Company or by Energy have occurred during the term
of the Employment Agreement; and
WHEREAS, the Executive has requested Energy and the Company
to amend the terms of the Employment Agreement to grant the
Executive's request to voluntarily retire from the Company and
Energy effective on the first day of the first month following
Executive's 55th birthday; and
WHEREAS, Energy and Company have agreed to the request made
by the Executive, and have agreed to pay the Executive certain
additional consideration as more specifically set forth in the
Employment Separation and Release Agreement attached hereto as
Schedule 1; and
WHEREAS, Executive, Company and Energy have mutually agreed
to the amount of consideration, the manner and method of payment,
and the selection by the Executive of the retirement date,
In consideration for the mutual promises, covenants and
agreements expressed in this Agreement Amendment, and the
attachments hereto, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. The recital clauses hereinabove set forth are
incorporated herein and made a material part of this Agreement
Amendment.
2. The Termination Date specified in the Employment
Agreement is hereby modified. The Termination Date shall now be
close of business on January 31, 1995.
3. This Employment Agreement Amendment shall become
effective and legally binding upon the parties hereto upon
execution and delivery by the Executive of this Amendment and the
execution and delivery by Executive of the Employment Separation
and Release Agreement and the General Release, Waiver and
Acknowledgment attached thereto (both of which documents are
incorporated herein and made a part hereof and are contained
within Schedule 1 attached hereto); and upon execution of same by
the Company and Energy. Whereupon, the employment relationship
of the Executive with the Company and Energy, and their
affiliates will be permanently and irrevocably severed; and
neither Company nor Energy nor any of its affiliated or related
companies shall have any obligation, contractual or otherwise, to
hire, rehire or re-employ Executive at any time.
4. The Parties mutually represent, covenant and warrant to
the other that neither has a right to terminate this Agreement
for any of the reasons or conditions set forth in Article 5 of
the Employment Agreement; and Executive represents and warrants
that his request to amend the Employment Agreement to allow for
his Retirement from the Company is made of his own free will,
without duress, undue influence or any other pressure or
condition exerted or imposed upon him in any form by Energy, the
Company, or any of their affiliates, or by anyone acting by or on
their behalf; and is not based upon any representations made to
Executive by Energy, the Company, or any of their affiliates, or
their agents, representatives, employees or attorneys except
those specifically contained herein and in the documents attached
hereto as Schedule 1.
5. Upon satisfaction of the conditions precedent
hereinabove set forth, the employment of the Executive as an
officer of Energy, as an officer and director of Atlantic City
Electric Company and as an officer and director of Deepwater
Operating Company will terminate effective close of business on
January 31, 1995. Executive represents that he has heretofore
voluntarily submitted letters of resignation effectuating his
resignation as a Director of Atlantic Generation, Inc., ATE
Investment, Inc., Atlantic Southern Properties, Inc., Atlantic
Energy Technology, Inc., Atlantic Thermal Systems, Inc. and of
each such subsidiary thereof upon which he may have served as a
Director or an Officer; and has also submitted his resignation as
a member of the Board of Managers of Cogeneration Partners of
America. Each such resignation has heretofore been accepted and
the letter of resignation has been duly filed in the record books
of each respective company.
6. Executive hereby agrees to execute and deliver such
additional documents, inclusive of but not limited to, letters of
resignation, which may be necessary or desirable, in the opinion
of Energy, the Company or the non-regulated subsidiaries to
evidence Executive's retirement and resignation therefrom.
7. The Employment Agreement will terminate at close of
business on January 31, 1995 whereupon none of the Parties hereto
shall have any further employment obligation to the other under
the Employment Agreement; and the relationship among the Parties
shall thereupon be governed and controlled by the terms of the
Employment Separation and Release Agreement and the General
Release, Waiver and Acknowledgment.
8. This Employment Agreement Addendum incorporates
Articles 8 through 13 of the Employment Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this
Employment Agreement Addendum the date and year first above
written.
ATTEST: ATLANTIC ENERGY, INC.
/s/ L. M. Walters BY:/s/ J. M. Galvin, Jr.,
L. M. Walters, Assistant J. M. Galvin, Jr.,
Secretary Chairman of the Personnel Committee
of Atlantic Energy, Inc. and
designated by the Board of
Directors of Atlantic Energy, Inc.
as the individual authorized to
execute and deliver this Employment
Agreement on behalf of Atlantic
Energy, Inc.
ATTEST: ATLANTIC CITY ELECTRIC COMPANY
/s/ L. M. Walters BY:/s/ J. L. Jacobs,
L. M. Walters, Secretary J. L. Jacobs, President
and Chief Executive Officer
WITNESS: EXECUTIVE:
Paula M. James /s/ J. G. Salomone
J. G. Salomone