Exhibit 10a(24)
EMPLOYMENT SEPARATION and RELEASE AGREEMENT
between
S. D. McMillian
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 effective the 31st day of
March, 1994 by and between S. D. McMILLIAN (Incumbent)
residing at 8157 East Beach Drive, N.W., Washington, D.C.
20012 and Atlantic Energy, Inc. and its affiliates and
subsidiaries including Atlantic City Electric Company
(hereinafter collectively referred to as the "Company") having
a principal Executive Office located at 6801 Black Horse Pike,
Pleasantville, County of Atlantic, State of New Jersey.
WHEREAS, Incumbent had been employed by the Company for
some time past in the capacity of an Officer and employee; and
WHEREAS, Incumbent had given oral notice and has
confirmed in a writing her intent to terminate and withdraw
from continued employment with the Company, as her 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 March 31, 1994 (the
"Termination Date"). Incumbent acknowledges that the
Termination Date has been mutually agreed to between Company
and Incumbent.
3. Notwithstanding the preceding paragraph, in
consideration of the payment referred to in the next
succeeding paragraph, Incumbent agrees to be available to
consult with the Company through close of business on December
31, 1994. Incumbent agrees to provide such consultation,
without additional compensation, except for reimbursement of
reasonable out-of-pocket expenses upon approval by the
Company. Incumbent shall provide such consultation upon the
approval of the Chief Executive Officer of Atlantic City
Electric Company. Incumbent shall have no obligation to
provide any continuing consultation beyond the close of
business on December 31, 1994.
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 in a single lump sum payment an
amount equivalent to her current regular monthly salary as
established by the Board of Directors of the Company which
would otherwise have been paid for the period April 1, 1994
through December 31, 1994, net of deductions. This payment
will be made upon the condition that Incumbent has executed
and returned this Agreement not later than April 20, 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.
(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 during the first
quarter 1994 Plan year;
(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, the services provided by Incumbent
through March 31, 1994 in the achievement of the longer-term
financial and operating performance objective shall be deemed
to have been satisfied, and of full value;
(d) Pay to the Incumbent, or her designated
beneficiary, the benefits to which she is entitled by reason
of her having been an employee of the Company, which shall be
paid in the manner, amounts and at such times as provided in
accordance with the terms and conditions thereof, and using
the Termination Date as the date of separation; and
(e) Provide Incumbent with continued coverage
under the Medical Expense Reimbursement Plan of the Company
through June 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 not later than January 1,
1996.
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.
5. The consideration given to Incumbent pursuant to
this Agreement, with the exception of the benefits to which
she and her beneficiary or estate are entitled by reason of
her having been an employee of the Company, constitute the
total amount to which Incumbent is entitled as a result of her
employment with the Company and is paid in satisfaction of any
and all claims which Incumbent has or may have against the
Company at any time as a result of her employment with the
Company and her separation therefrom.
6. This Agreement shall apply to and be binding upon
all affiliated, related, subsidiary and successor corporations
of the Company, and their assigns; and shall apply to and be
binding upon Incumbent, her 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
she is aware of her 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 Release are
intended to include, without limitation, a release by her of
any and all rights and claims arising out of her employment
with the Company and her withdrawal and separation therefrom,
including, but not limited to, all claims under any and all
federal, state, local and common laws dealing with employment
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
Release or any other party connected with her employment with
the Company with respect to any right or claim, direct or
indirect, encompassed by the attached Release and this
Agreement, except to enforce the terms of this Agreement.
8. Incumbent agrees that she will not engage in any
communications which would injure the reputation of or
interfere with existing or prospective business relationships
of the Company.
9. Incumbent agrees that, except as expressly provided
below, she will not communicate or disclose the terms of this
Agreement or of the attached Release to or with any person(s)
with the exception of members of her immediate family, her
attorney(s), her financial advisor(s) and/or her
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.
10. It is expressly understood and agreed that any
violation of the confidentiality provision in the preceding
Article by Incumbent, or anyone acting on her behalf, shall be
deemed to be a material breach of this Agreement.
11. Incumbent agrees and recognizes that her employment
relationship with the Company shall be permanently and
irrevocably terminated at her voluntary request as contained
in the Notice of Separation. Incumbent acknowledges that she
has no contract or other rights to employment or re-employment
with the Company; except that Incumbent shall continue to be
available to provide consultation to the extent requested,
consistent with the requirements of Article 3 of this
Agreement.
12. Incumbent agrees that she shall not, directly or
indirectly, knowingly disclose to any other person, firm or
corporation nor appropriate to her 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,
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.
In addition, Incumbent represents and warrants that
she will never, directly or indirectly lecture upon or publish
articles concerning any Confidential Information without first
having obtained from the Company prior approval and written
consent in the manner hereinabove contained.
On or before March 31, 1994, Incumbent shall turn
over to the Company all documents and other things, and all
copies thereof within her 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.
13. In the event of a breach of Articles 3, 7, 8, 9 or
12 of this Agreement or of the attached 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 she, her beneficiaries, or her estate are
entitled by reason of 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.
In the event the Company 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 Articles 3, 7, 8, 9 or 12
of this Agreement, the parties shall bear their own attorneys
fees and costs.
14. Incumbent acknowledges that she has been given the
opportunity to have this Agreement and the attached Release
reviewed by an attorney(s), accountant(s) and/or a financial
advisor(s) of her own choice; and Incumbent has exercised this
right and has had the opportunity to review and consider this
Agreement and the attached Release for a period in excess of
twenty-one (21) days, and Incumbent hereby waives any further
period of review or revocation, it being the intent of
Incumbent and the Company that this Agreement shall be
effective upon execution by all parties hereto; and the
attached Release shall be effective in accordance with its
terms.
15. This Agreement and the attached Release contain the
entire Agreement with respect to the matters contained 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 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 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 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 by
certified mail, return request 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:
Sabrina D. McMillian
8157 East Beach Drive, N.W.
Washington, D.C. 20012
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:
March 31, 1994 /s/ SABRINA D. McMILLIAN
SABRINA D. McMILLIAN
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on March 31, 1994
SABRINA D. McMILLIAN, personally came before me and
acknowledged under oath, to my satisfaction, that she is the
person named in and that she did personally sign this
Employment Separation and Release Agreement.
/s/ K. D. Zimmerman
Notary Public - State of New Jersey
ATTEST: DATE: ATLANTIC ENERGY, INC. and
its AFFILIATES inclusive of
ATLANTIC CITY ELECTRIC
COMPANY:
L. M. Walters 3-31-94 /s/ Jerrold L .Jacobs
Secretary BY: Jerrold L. Jacobs
Exhibit A
GENERAL RELEASE, WAIVER and ACKNOWLEDGMENT
In consideration of the undertakings of Atlantic Energy,
Inc. and its affiliates 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 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 any person
or entity; 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.
Sabrinia D. McMillian
DATED: April 26, 1994
STATE OF NEW JERSEY :
: ss.
COUNTY OF ATLANTIC :
I hereby certify that on April 26th, 1994
SABRINIA D. McMILLIAN, personally came before me and
acknowledged under oath, to my satisfaction, that she is the
person named in and that she did personally sign this General
Release, Waiver and Acknowledgement.
/s/ K. D. Zimmerman
Notary Public - State of New Jersey