AGREEMENT AND RELEASE
This Agreement and Release (hereinafter called the "Agreement") is made
this 22nd day of August, 2000, by and between Consolidated Edison Company of New
York, Inc. (hereinafter called the "Company") and J. Michael Evans (hereinafter
called the "Executive").
WHEREAS, the Executive has served as a senior executive and a member of
the Company's Corporate Policy Committee since joining the Company in September
1991, and most recently as President and Chief Operating Officer of the Company;
and
WHEREAS, the Executive desires to retire from the Company and the
Company desires to provide certain benefits to the Executive in connection with
his retirement from the Company, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and covenants and
subject to the terms and conditions contained herein, the parties hereto agree
as follows:
1. The Executive hereby voluntarily and irrevocably elects to retire
from the Company and from his position as President and Chief Operating Officer
of the Company effective September 1, 2000.
2. (a) The Company shall pay the Executive the amount of One million
four hundred eighty-one thousand six hundred dollars ($1,481,600) as follows: in
a single lump sum within fifteen (15) days after this Agreement becomes
effective in accordance with Paragraph 8
of this Agreement. Such amount shall not be included as part of the Executive's
compensation for purposes of determining the benefits to which he is entitled
under the Company's employee benefit plans, programs or arrangements. Such
amount shall be due and payable notwithstanding any disability or incapacity of
the Executive, and in the event of the death of the Executive shall be payable
to his estate.
(b) During the period from September 1, 2000 until August 31, 2002 the
Company shall continue benefits to the Executive and/or the Executive's family
at least equal to those and at the same contribution rates that would have been
provided to them in accordance with the medical, prescription, dental, and life
insurance plans of the Company if the Executive had not retired or, if more
favorable to the Executive, as in effect generally at any time with respect to
other peer executives of the Company and their families, provided, however, that
if the Executive becomes re-employed with another employer and is eligible to
receive such health benefits under another employer-provided plan, the health
benefits described herein shall be secondary to those provided under such other
plan during such two-year period. The Executive's right to continued eligibility
under the Company's health care plans under Section 4980B of the Internal
Revenue Code of 1986, as amended (the "Code"), shall commence at the end of such
two-year period. At the end of such two-year period the Executive shall be
eligible to participate in the health care coverage available to retired
officers of the Company, including coverage available under the Company's
Retiree Health Program for Management Employees, as such coverage is in effect
from time to time, on the same terms and conditions as are applicable to retired
officers of the Company.
(c) Pursuant to the employment agreement dated as of June 25,
1991 between the Company and the Executive, the Executive shall be given credit
for the period from
July 1974 through August 1991 in addition to his actual years of service for
purposes of calculating his pension benefits under the Company's Retirement Plan
for Management Employees and Supplemental Retirement Income Plan (collectively,
the "Pension Plans"). Upon termination of his employment the Executive shall
elect an annuity form of payment under the Pension Plans. Payment of the
Executive's benefits under the Pension Plans shall commence effective as of
September 1, 2000.
(d) The Company hereby confirms to the Executive that termination of
the Executive's employment with the Company by his retirement effective
September 1, 2000 (i) shall vest, and not result in the forfeiture of, any
mandatory deferred amounts to the Executive's credit under the Company's
Executive Incentive Plan, and (ii) shall be considered to be retirement prior to
age 65 under a Company pension plan with the consent of the Company for purposes
of any outstanding options granted to the Executive under the Consolidated
Edison, Inc. 1996 Stock Option Plan, as amended and restated February 24, 1998.
The Executive hereby confirms his election that the mandatory deferred amounts
to the Executive's credit under the Executive Incentive Plan shall be
transferred to the Company's Deferred Income Plan immediately upon becoming
vested, and shall be distributable to the Executive in accordance with his
elections on file with the Company.
(e) The Company shall, at its sole expense as incurred, provide the
Executive with outplacement services suitable to the Executive's position for a
period of not to exceed two years with a nationally recognized outplacement
firm.
(f) The Executive shall continue to be eligible to use the financial
counseling services of Ayco & Company for the period of two years following his
retirement, on
the same terms as provided from time to time to other peer executives or former
peer executives of the Company.
3. (a) The Executive shall hold in a fiduciary capacity for the benefit
of the Company all confidential information, knowledge or data (defined below)
relating to the Company or any of its affiliates or subsidiaries, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
Upon termination of the Executive's employment, he shall return to the Company
all Company confidential information. After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it, except (x) otherwise publicly
available information, or (y) as may be necessary to enforce his rights under
this Agreement or necessary to defend himself against a claim asserted directly
or indirectly by the Company or its affiliates. Unless and until a final
determination not subject to appeal has been made in accordance with Paragraph
3(d) hereof that the Executive has violated this Paragraph 3, an asserted
violation of the provisions of this Paragraph 3 shall not constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
(b) As used herein, the term "confidential information, knowledge or
data" means all trade secrets, proprietary and confidential business information
belonging to, used by, or in the possession of the Company or any of its
affiliates and subsidiaries, including but not limited to information, knowledge
or data related to business strategies, plans and financial
information, mergers, acquisitions or consolidations, purchase or sale of
property, leasing, pricing, sales programs or tactics, actual or past sellers,
purchasers, lessees, lessors or customers, those with whom the Company or its
affiliates and subsidiaries has begun negotiations for new business, costs,
employee compensation, marketing and development plans, inventions and
technology, whether such confidential information, knowledge or data is oral,
written or electronically recorded or stored, except information in the public
domain, information known by the Executive prior to employment with the Company,
and information received by the Executive from sources other than the Company or
its affiliates and subsidiaries, without obligation of confidentiality.
(c) The confidential knowledge, information and data, as defined in the
previous subdivision, gained in the performance of the Executive's duties
hereunder may be valuable to those who are now, or might become, competitors of
the Company or its affiliates and subsidiaries. Accordingly, the Executive
agrees that he will not, without the approval of the Chief Executive Officer of
the Company, which approval shall not be unreasonably withheld, for the period
of two years from his termination of employment, directly own, manage, operate,
join, control, become employed by, consult to or participate in the ownership,
management, or control of any business which is in direct competition with any
business maintained by the Company and/or its affiliates and subsidiaries as of
the date of his termination of employment provided that the foregoing shall not
restrict the Executive from participating as a passive investor owning not in
excess of 5% of the equity of any such competing business. Further, the
Executive agrees that, for two years following his termination of employment, he
will not, directly or indirectly, solicit or hire, or encourage the solicitation
or hiring of any person who was a managerial or higher level employee of the
Company or any of its
affiliates or subsidiaries at any time during the term of the Executive's
employment by the Company by any employer other than the Company or any of its
affiliates and subsidiaries for any position as an employee, independent
contractor, consultant or otherwise. The foregoing agreement of the Executive
shall not apply to any person after 6 months have elapsed subsequent to the date
on which such person's employment by the Company or any of its affiliates or
subsidiaries has terminated.
(d) In the event of a breach by the Executive of any of the agreements
set forth in Paragraphs 3(a), (b) or (c) above, it is agreed that the Company
shall suffer irreparable harm for which money damages are not an adequate
remedy, and that, in the event of such breach, the Company shall be entitled to
obtain an order of a court of competent jurisdiction for equitable relief from
such breach, including, but not limited to, temporary restraining orders and
preliminary and/or permanent injunctions against the breach of such agreements
by the Executive.
(e) If the Company shall institute any legal action against the
Executive for breach of this Agreement and shall be unsuccessful in obtaining
a final judgment of a court of competent jurisdiction not subject to appeal
affirming such breach, the Company shall reimburse the Executive for the
Executive's reasonable legal fees and costs incurred in defending such legal
action.
4. Vested benefits and other amounts that the Executive is otherwise
entitled to receive under the Company's incentive compensation plans, the
Pension Plans or any other plan, policy, practice or program of, or any contract
or agreement with, the Company on or after his termination of employment shall
be payable in accordance with the terms of each such plan, policy, practice,
program, contract or agreement, as the case may be, except as explicitly
modified by this Agreement.
5. The Executive does hereby waive, release and discharge the Company,
its parent corporation, subsidiaries, affiliates, successors and assigns and
their respective directors, trustees, officers, agents, representatives,
employees and employee benefit plans (hereinafter referred to collectively as
the "Releasees"), both individually and in their official capacity, of and from
any and all claims and causes of action of any kind, that he, his heirs,
executors, administrators, agents or assigns ever had, now have or may have,
whether known or unknown, with respect to, arising out of, or as a result of his
employment or termination of his employment. This Agreement includes but is not
limited to all claims or causes of action which might have been asserted under
the federal, state or city laws prohibiting employment discrimination based on
race, color, sex, religion, national origin, age, disability, sexual
orientation, or marital status, including but not limited to the federal Age
Discrimination in Employment Act, 29 U.S.C. 623, ET. SEQ.; the federal Equal Pay
Act, 29 U.S.C. 206(d), ET. SEQ.; Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000 e, ET SEQ.; 42 U.S.C. 1981; the Civil Rights Act of 1991; the
federal Fair Labor Standards Act; the New York State Human Rights Law; the New
York City Human Rights Law; the Employee Retirement Income Security Act of 1974;
the Americans with Disabilities Act; all as amended; claims for wrongful
discharge, unjust dismissal, or constructive discharge; claims for breach of any
alleged oral, written or implied contract of employment; claims for salary,
severance payments, bonuses or other compensation of any kind; claims for libel,
slander, defamation and attorneys' fees and any other claims under any contract
or otherwise at common law or any other law, regulation or ordinance in any
action, suit or administrative or other proceeding before any city, state or
federal court or agency; provided, however, that this waiver, release and
discharge shall not apply to any claim that may arise after this Agreement
becomes effective, including any breach of this Agreement by the Company. This
Agreement is intended to include in its effect, without limitation, all claims
which have arisen and of which the
Executive knows or does not know, should have known, had reason to know or
suspects to exist in his favor at the time this Agreement becomes effective, and
this Agreement contemplates the extinguishment of any such claim or claims.
6. Neither the Executive nor any person, organization or any other
entity acting on the Executive's behalf will file, charge, claim, sue or pursue,
cause or permit to be filed, charged, claimed or pursued any charge, complaint,
or other action, suit or proceeding for damages or other relief (including
injunctive, declaratory, monetary relief, attorneys' fees or other) against the
Releasees involving any matter occurring in the past up to the effective date of
this Agreement, or involving any continuing effects of any actions or practices
which arose prior to the effective date of this Agreement. Notwithstanding the
foregoing, nothing in this Agreement is intended to prohibit the Executive from
filing, or impose any condition, penalty or other limitation adversely affecting
the Executive's right to file, a charge or complaint, including a challenge to
the validity of the waiver included in this Agreement, with the federal Equal
Employment Opportunity Commission ("EEOC"), or to participate in any
investigation or proceeding conducted by the EEOC.
7. The Executive understands that he has until September 22, 2000,
which is a period of more than twenty-one days, to consider this Agreement and
that he may choose to execute this Agreement before the expiration of the
twenty-one day period. In the event the Executive fails to execute and deliver
this Agreement to the Company's Vice President-Human Resources by such date,
this Agreement shall not take effect and shall be null and void. The Executive
represents that he has carefully read and fully understands the provisions and
effects of this Agreement, that he has had the opportunity to discuss all
aspects of this Agreement thoroughly with his attorney, that he is voluntarily
entering into this Agreement, and that neither
the Company nor its trustees, officers, employees, agents, representatives or
employee benefit plans made any representations concerning the terms or effects
of this Agreement other than those contained herein. The Company hereby advises
the Executive to consult with an attorney prior to executing this Agreement, and
the Company shall reimburse the Executive for his reasonable attorneys fees and
costs not exceeding $4,500 incurred by the Executive in connection with review
of this Agreement. The Executive agrees that he will not disclose the terms,
amounts, fact or circumstances of this Agreement except to members of his
family, his attorney or his accountant or other financial advisor and except as
required by law.
8. The Executive acknowledges that this Agreement includes a waiver of
rights or claims under the federal Age Discrimination in Employment Act, 29
U.S.C. 623 ET SEQ., as amended by the Older Workers Benefit Protection Act, Pub.
L. 101-433, in consideration of the benefits that are to be provided to him by
the Company under this Agreement, which are in addition to anything of value to
which the Executive is otherwise entitled. The Executive further acknowledges
that he has been advised in writing to consult with an attorney prior to
executing this Agreement. For the period of seven days after the Executive
executes and delivers this Agreement the Executive may revoke this Agreement by
delivering written notice of revocation to the Company to the attention of its
Vice President-Human Resources. The revocation shall be effective upon receipt
of the notice by the Vice President- Human Resources. In the event of such
revocation this Agreement shall become null and void and of no force and effect.
In the absence of a revocation this Agreement shall become effective upon the
opening of business on the first day following the expiration of the revocation
period.
9. Neither the Executive nor any other person that may be entitled to
any payment hereunder shall have the power to transfer, assign, anticipate,
mortgage or otherwise encumber
any right to receive a payment hereunder in advance of such payment, and any
attempted transfer, assignment, anticipation, mortgage or encumbrance shall be
void.
10. The Company shall not be required to segregate any funds
representing any amounts payable under this Agreement, and nothing in this
Agreement shall be construed as providing for such segregation. In addition, the
Company shall not be deemed to be a trustee or a fiduciary for the Executive of
any such amounts, and the liabilities of the Company to the Executive in respect
of such amounts shall be those of a debtor pursuant to such contract obligations
as are created by this Agreement, and no such liabilities of the Company shall
be deemed to be secured by any pledge or other encumbrance on any property of
the Company. The amounts payable under this Agreement, other than amounts
payable under the Company's Retirement Plan for Management Employees, shall be
payable out of the general assets of the Company.
11. The Company may withhold from any amount payable under this
Agreement such federal, state or local taxes as it may determine to be required
to be withheld pursuant to any applicable law or regulation.
12. In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be unenforceable in any respect
under the laws of any state or of the United States of America, such
unenforceability shall not affect any other provisions of this Agreement, but,
with respect only to that jurisdiction holding the provision to be
unenforceable, this Agreement shall then be construed as if such unenforceable
provision or provisions had never been contained in this Agreement, such that
the remaining provisions shall, to the extent
possible, be carried into effect, taking into account the general purpose and
spirit of this Agreement.
13. This Agreement sets forth the parties' full understanding
pertaining to the subject matter hereof, and fully supersedes any and all prior
agreements or understanding between the parties pertaining to such matter.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements executed and
performed entirely therein. This Agreement may not be amended or modified
otherwise than by written agreement executed by the parties hereto or their
respective successors or legal representatives.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT,
UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.
By
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Richard P. Cowie
Vice President-
Human Resources
------------------------------
J. Michael Evans
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On the 22nd day of August, 2000, before me personally came
J. Michael Evans to me known to be the individual described in and who executed
the foregoing instrument and he acknowledged to me that he executed the
instrument.
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Notary Public