Exhibit (10)-1
Unicom Corporation and Commonwealth Edison Company
Form 10-Q File Nos. 1-11375 and 1-1839
RETIREMENT AND SEPARATION AGREEMENT
THIS RETIREMENT AND SEPARATION AGREEMENT ("Agreement") dated as of March
12, 1998, by and among Samuel K. Skinner ("Executive"), Commonwealth Edison
Company ("ComEd") and Unicom Corporation ("Unicom") (both such corporations
hereinafter referred to collectively as the "Company").
RECITALS
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WHEREAS, the Executive has served as President of ComEd and Unicom pursuant
to a letter agreement dated December 16, 1992 and as amended, May 31, 1995,
November 20, 1996, December 11, 1996 and March 24, 1997 (the "Prior
Agreements"); and
WHEREAS, the Executive has indicated his intention to retire from the
Company;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises,
covenants and conditions hereinafter set forth, and other good and valuable
consideration, the parties agree as follows:
1. Termination of Prior Agreements. The Prior Agreements shall be terminated,
effective as of the date hereof, and, except as specifically provided herein,
neither the Company nor the Executive shall have any further liability to the
other thereunder.
2. Resignation of Executive. The Executive shall resign any and all positions
he currently holds as an officer or director of ComEd, Unicom or any subsidiary
thereof, effective as of March 16, 1998. The Executive shall remain on the ComEd
payroll as an active employee and shall continue to be paid his current salary
through and including March 31, 1998. The Executive shall be deemed to have
retired from senior executive officer status with ComEd, Unicom and any
subsidiary for purposes of (A) vesting and exercise of options and awards
(including annual or long-term) under the Company's Long Term Incentive Plan,
(B) transferring policy ownership under the Company's life insurance programs,
and (C) the Company's certificate of incorporation and by-laws.
3. Severance Benefits. Subject to the Executive's execution of the Waiver and
Release attached hereto as Appendix A and made a part hereof, the Company will
provide the following benefits:
(a) The Company agrees to pay to the Executive a severance payment equal
to $2,007,000 (two times the sum of the Executive's current annual
base salary and target annual incentive). Payment shall be made in a
lump sum, net of
applicable federal and state taxes which are required to be withheld,
on the date which is eight days after the date on which the Executive
returns the signed Waiver and Release, but no earlier than April 1,
1998.
(b) The Executive shall be entitled to a retirement benefit equal to the
annual retirement benefit that would have been payable under the
Commonwealth Edison Company Service Annuity System (the "Pension
Plan") (including payments under the Commonwealth Edison Company
Supplemental Management Retirement Plan) as currently in effect for
employees who retire at age 60 calculated based on the assumption that
the Executive had, as of the date of his employment with the Company,
completed 20 years of credited service (as defined in the Pension
Plan) and has accrued an additional year of credited service during
each year of his employment with the Company.
The annual retirement benefit provided to the Executive under this
Section 3(b) ("SERP Benefit") shall equal the amount which, when added
to all other annual retirement benefits provided by the Company
(including benefits provided under the Pension Plan, the Commonwealth
Edison Company Supplemental Management Retirement Plan and the Social
Security Supplement paid by the Company until the Executive attains
age 65) results in the SERP Benefit described in the preceding
paragraph.
The SERP Benefit will be payable semimonthly commencing April 1, 1998,
in the form of a marital annuity with surviving spouse benefit, with
applicable adjustment for such marital annuity made to the amount
calculated above that would be payable in the form of a regular
annuity. The SERP Benefit shall be unfunded and payable from the
general assets of the Company, provided that if, prior to, on or after
the date of this Agreement, the Company shall establish a grantor
trust for purposes of funding benefits under the Commonwealth Edison
Company Supplemental Management Retirement Plan or any other non-
qualified retirement plan maintained by the Company (a so-called
"rabbi trust"), then the Executive's SERP Benefit will be included as
part of such trust, and funded to the same extent as similar benefits
for the Company's senior executive officers.
(c) The Executive shall be entitled to elect post-retirement coverage for
himself and his dependents under the Commonwealth Edison Medical
Expense Plan, the Commonwealth Edison Dental Expense Plan and the
Commonwealth Edison Vision and Hearing Care Plan (collectively, the
"Plans"), provided he meets the requirements for such coverage under
the Plans as of April 1, 1998. Solely for purposes of satisfying the
eligibility requirements for post-retirement coverage under such
Plans, the Executive is hereby deemed to have completed 10 years of
credited service under the Commonwealth Edison Company Service Annuity
System.
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(d) The Company will pay to the Executive, in a cash lump sum in
accordance with its personnel practices, an amount equal to the value
of 38 days of paid time off (PTO).
(e) Through September 30, 1998, the Executive will be entitled to (1) a
furnished office located in such space as the Company and the
Executive shall agree, (2) a full-time secretary provided by the (e)
Company, and (3) access to office equipment, supplies and support
services on a basis that is comparable to that which the Company makes
available to its senior executive officers.
(f) ComEd shall purchase the car currently leased for the Executive's use
and shall transfer the title thereof to the Executive effective April
1, 1998.
(g) ComEd shall transfer to the Executive, effective April 1, 1998 (1) the
company-owned home computer, and (2) any company-owned cellular phones
currently provided for the Executive's use.
(h) ComEd will pay for the cost of financial counseling and tax
preparation services for two years following the date of this
Agreement.
(i) ComEd shall pay to the Executive the amount necessary to reimburse the
Executive for any federal or state income taxes payable by him (I)
with respect to the benefits described in paragraphs 3(f), 3(g)(1) and
3(h), and (II) with respect to the amount paid hereunder as
reimbursement for such income (i) taxes; provided, however, that any
amount payable under this paragraph (i) with respect to paragraph 3(h)
shall not exceed $10,000.
If the Executive should die prior to the payment of the amounts described
in paragraphs (a), (d), (h) or (i) of this Section 3, the Company shall pay all
such amounts to the Executive's spouse, if she is then living and if not, to the
Executive's estate.
Notwithstanding the preceding, in the event of (1) a breach by the
Executive of any of the covenants contained in Sections 5, 8 or 11 of this
Agreement and the failure by the Executive to cure such breach within 10 days
after his receipt of a written notice thereof from the Company, or (2) a breach
by the Executive of any of the covenants contained in Section 7 of this
Agreement and notice from the Company to the Executive followed by an
opportunity for the Executive to be heard within 10 business days of receipt of
such notice, the Company shall be entitled to (I) require the Executive to
promptly repay to the Company the amount which was payable to the Executive
under Section 3(a), and (II) to discontinue payment of the SERP Benefit and any
or all of the other payments or benefits provided to the Executive under this
Section 3.
4. Other Benefits. Except as provided in Section 3, above, the Executive's
rights under any employee benefit or deferred compensation plans sponsored or
maintained by the
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Company shall be determined in accordance with the provisions of such plans and
shall not be limited or reduced in any way by this Agreement.
5. Publicity. Until filed as an exhibit to the Company's quarterly report of
the results of operations, neither the Executive nor the Company shall issue or
cause the publication of any press release or other announcement with respect to
the terms or provisions of this Agreement, nor disclose the contents hereof to
any third party, without obtaining in each case the consent of the other parties
hereto, which consent shall not be withheld where such release, announcement or
disclosure shall be required by applicable law or administrative regulation or
agency.
6. Confidential Information Defined. For the purposes hereof, the term
"Confidential Information" shall mean any information not generally known in the
relevant trade or industry, which was obtained from the Company, or which was
learned, discovered, developed, conceived, originated or prepared during or as
result of the performance of any services by the Executive on behalf of the
Company and which falls within the following general categories:
(a) information relating to trade secrets of the Company or any customer
or supplier of the Company;
(b) information relating to existing or contemplated products, services,
technology, designs, processes, formulae, algorithms, research or
product developments of the Company or any customer or supplier of the
Company;
(c) information relating to business plans or strategies, sales or
marketing methods, methods of doing business, customer lists, customer
usages and/or requirements, supplier information of the Company or any
customer or supplier of the Company; and
(d) any other confidential information which either the Company or any
customer or supplier of the Company may reasonably have the right to
protect by patent, copyright or by keeping it secret and confidential.
The parties agree that Confidential Information, as defined herein, also
qualifies as "confidences or secrets" within the meaning of the Illinois Rules
of Professional Conduct.
7. Nondisclosure of Confidential Information. The Executive will not use for
his own benefit, either direct or indirect, or disclose any Confidential
Information obtained by the Executive during his employment with the Company at
any time, to any other person, firm or corporation (except to the extent
directly related to and required by the Executive's performance of duties
assigned to the Executive by the Company) without the Company's prior written
consent except as may be required by the lawful order of a court or agency of
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competent jurisdiction. The Executive shall take all reasonable steps to
safeguard such Confidential Information and to protect such information against
disclosure, misuse, loss and theft. The Executive's obligations under this
paragraph with respect to any specific Confidential Information shall cease when
that specific portion of Confidential Information becomes publicly known.
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8. Covenant Not to Compete; Non-Interference.
a) Competition. The Executive agrees that, for a period of two (2) years
beginning on the date hereof, without the prior written approval of the
Company, he will not participate in the management or serve as a
director of, be employed by (whether as a common law employee or an
independent contractor) or consult with, other than as provided in
paragraph (b), below, or own any business enterprise that (1) engages
in or proposes to engage in (I) the production, transmission,
distribution, marketing or sale of electricity, or (II) any other
business engaged in by the Company or its affiliates prior to the date
hereof which represents, as of such date, or is projected by the
Company and its affiliates as reflected in a business plan adopted
prior to the date hereof to yield during any year within the first
three-fiscal-year period commencing on or after the date hereof, more
than 5% of the gross revenues of the Company and with respect to which
the Executive had access to Confidential Information, and (2) which is
located (I) anywhere in the United States, or (II) anywhere outside of
the United States where the Company is engaged in or proposed as of
such date to engage in any of such activities (a "Competing Business");
provided, however, that nothing in this paragraph 8(a) shall prohibit
the Executive from owning stock or other securities of any such
business amounting to less than five percent of the outstanding capital
stock of such business where the Executive does not participate in the
management, control or operation of such business.
b) Practice of Law. The Executive agrees that, for a period of two years
beginning on the date hereof, he will not undertake, without first
obtaining written consent from the General Counsel of the Company, the
representation, as legal counsel, of any Competing Business: (1) in a
litigation matter adverse to the Company or any of its affiliates; (2)
in a regulatory or legislative matter where the position of the
Competing Business is contrary to the position of the Company or any of
its affiliates; (3) in a position adverse to the Company or any of its
affiliates as part of a contract negotiation; or (4) in any other
matter that would risk the disclosure of or involve any Confidential
Information
c) Interference. The Executive hereby agrees that, for a period of two
years beginning on the date hereof, he will not (1) employ any Key
Employee (as defined below) or encourage any Key Employee to terminate
his or her employment; (2) take any action which is intended to
adversely affect the Company's or any of its affiliates' relationships
with any person, firm, corporation, or other business organization who
or which at any time (whether before or after the date hereof) was a
Key
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Employee, or which, during the period commencing one year prior to the
date hereof, was a material supplier of, or maintained a material
supplier relationship with, any business of the Company or its d)
affiliates, or (3) endeavor to entice away from the Company or any of
its affiliates a Key Employee or a business which, during the period
commencing one year prior to the date hereof, was a material customer
(five or more megawatts) or material supplier of, or maintained a
material business relationship with (other than as a customer or
supplier), the Company or an affiliate. For purposes of this Section
8(c), "Key Employee" means any employee of the Company who is rated at
Group Level 12 or above ("Group Level") or any employee of an affiliate
of the Company who is rated at a level which is the equivalent of Group
Level.
9. Reasonableness of Restrictive Covenants. The Executive acknowledges that
the covenants contained in Sections 7 and 8 of this Agreement are reasonable in
the scope of the activities restricted, the geographic area covered by the
restrictions, and the duration of the restrictions, and that they are reasonably
necessary to protect the Company's legitimate interests in its Confidential
Information and in its relationships with its customers.
The Company and the Executive further acknowledge that the covenants
contained in Sections 7 and 8 are essential elements of this Agreement and that,
but for the agreement of the Executive to comply with such covenants, the
Company would not have agreed to enter into this Agreement. If a court of
competent jurisdiction shall, in a final nonappealable order, limit or
invalidate any provision of the covenants contained in Sections 7 or 8, then, in
the event of a breach by the Executive of any of the covenants contained in
Sections 7 or 8 of this Agreement, at the Company's sole discretion, (I) the
Company shall require the Executive to promptly repay to the Company the amount
which was payable to the Executive under Section 3(a), and shall be entitled to
discontinue payment of the SERP Benefit and any or all of the other payments or
benefits provided to the Executive under this Section 3; (II) the Executive
agrees to enter into an agreement embodying the essential elements of the
covenants contained in Sections 7 or 8 or both of them which is valid and
enforceable; or (III) the parties shall agree to be bound by provisions with
respect to Sections 7 and 8 which are reformed by the court pursuant to Section
12 hereof.
The Executive and the Company further acknowledge that nothing in this
Agreement is intended to limit the application of the Illinois Rules of
Professional Conduct.
The Executive and the Company have independently consulted with their
respective counsel and have been advised concerning the reasonableness and
propriety of such covenants with specific regard to the nature of the business
conducted by the Company. The Executive acknowledges that his observance of the
covenants contained in Sections 7 and 8 of this Agreement will not deprive him
of the ability to earn a livelihood or to support his dependents.
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10. Remedies. In recognition of the confidential nature of the Confidential
Information, and in recognition of the necessity of the limited restrictions
imposed under Sections 7 and 8 of this Agreement, the parties agree that it is
impossible to measure solely in money the damages which will accrue to the
Company by reason of the Executive's failure to abide by any of his obligations
under this Agreement. The Executive hereby specifically affirms the
appropriateness of injunctive or other equitable relief in any such action.
Accordingly, the Executive agrees that if he breaches any of the provisions of
Sections 7 or 8, the Company shall have the right, in addition to any other
remedies it may have under this Agreement or otherwise, to obtain in any court
of competent jurisdiction injunctive relief to restrain any breach or threatened
breach hereof or otherwise to specifically enforce any of the provisions hereof,
and the Executive hereby waives any and all rights to assert any claim or
defense that the Company has an adequate remedy at law for any breach. Disputes
regarding the rights of the Company and the Executive hereunder as to which the
Company has not sought equitable relief shall be resolved in a court of
competent jurisdiction. The Company acknowledges that the Executive would be
irreparably injured by a violation of Section 11 hereof. The Company agrees
that, in addition to any other remedies available to the Executive for such
breach or threatened breach, the Executive shall be entitled to a preliminary
injunction, temporary restraining order, or other equivalent relief, restraining
the Company from any actual or threatened breach of Section 11.
11. Non-Disparagement. The Executive agrees that he will not make any written
or oral statement that brings Unicom or ComEd or any of its employees, officers
or agents into disrepute, or tarnishes any of their images or reputations. The
Executive further agrees not to publish, comment upon or disseminate any
statements suggesting or accusing Unicom or ComEd or any of its agents,
employees or officers of any misconduct or unlawful behavior. The Company agrees
that neither the directors nor the officers of the Company nor any official
spokesperson for the Company will make any written or oral statements that bring
the Executive into disrepute or materially tarnishes his image or reputation.
The Company further agrees not to publish or disseminate any statements
suggesting or accusing the Executive of any misconduct or unlawful behavior, and
to take all reasonable steps to prevent statements prohibited hereunder. The
provisions of this Section 11 shall not apply to testimony as a witness,
compliance with other legal obligations, assertion of or defense against any
claim of breach of this Agreement, or any activity that otherwise may be
required by the lawful order of a court or agency of competent jurisdiction, and
shall not require the Company or the Executive to make false statements or
disclosures.
12. Partial Invalidity/Severability. If any provision of this Agreement shall
be held invalid or unenforceable, the remainder nevertheless shall remain in
full force and effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it nevertheless shall remain in full force
and effect in all other circumstances. Further, the covenants contained in
Sections 7 and 8 of this Agreement shall be construed as independent of any
other provision of this Agreement, and the existence of any claim or cause of
action (whether predicated on this Agreement or otherwise) shall not constitute
a defense to the enforcement by the Company of said covenants. In the event that
any provision of this Agreement should be found by a court of competent
jurisdiction to be unreasonable, invalid,
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or otherwise unenforceable, it is the desire of the parties hereto that (a) such
provision be considered severable, and (b) such provision be reformed by such
court so as to render it reasonable, valid, and enforceable, and that it be so
enforced.
13. Benefit of Agreement. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their respective successors,
assigns, heirs, and legal representatives, including any person with which the
Company may merge or consolidate. Insofar as the Executive is concerned, this
Agreement, being personal, cannot be assigned.
14. Entire Agreement. This Agreement contains the entire agreement between the
parties and constitutes the complete, final, and exclusive embodiment of their
agreement with respect to the subject matters covered by this Agreement. This
Agreement is executed without reliance upon any promise, warranty or
representation, written or oral, by any party or any representative of any party
other than those expressly contained herein and supersedes any other such
promises, warranties, representations, or agreements. This instrument shall not
affect any indemnification or other rights and benefits afforded to the
Executive by the Company's certificate of incorporation or by-laws. The Company
shall continue the Executive's coverage under the directors' and officers'
liability coverage maintained by the Company, as in effect from time to time, to
the same extent as other current or former senior executive officers and
directors of the Company.
15. Modifications and Waivers. No change, modification or waiver of any
provision of this Agreement shall be valid or binding unless it is in writing,
dated subsequent to the date hereof, and signed by the party intended to be
bound. No waiver of any breach, term, or condition of this Agreement by either
party shall constitute a subsequent waiver of the same or any other breach,
term, or condition.
16. Construction. This Agreement shall be governed by, construed and enforced
(both as to validity and performance) in accordance with the internal laws of
the State of Illinois applicable to agreements made and to be performed wholly
within such jurisdiction, without regard to principles of conflicts of law.
17. Post-Employment Communications. Nothing in this Agreement, including
Sections 5 or 11, shall be construed to prohibit the Executive from freely
communicating with, including testifying in any administrative proceeding
before, the Nuclear Regulatory Commission or the United States Department of
Labor, or from otherwise addressing issues related to nuclear safety with any
party or taking any other action protected under Section 211 of the Energy
Reorganization Act.
18. Mitigation and Set-Off. The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise. The Company shall not be entitled to set off against
the amounts payable to the Executive hereunder any amounts owed to the Company,
any amounts earned (or foregone) by the Executive in other employment after
termination of his
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employment with the Company, or any amounts that might have been earned by the
Executive in other employment had he sought such other employment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written as indicated below.
Executive
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Samuel K. Skinner
COMMONWEALTH EDISON COMPANY
By:
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UNICOM CORPORATION
By:
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Appendix A
WAIVER AND RELEASE
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In exchange for the separation benefits described in the Retirement and
Separation Agreement dated March 12, 1998, which I acknowledge I am not
otherwise entitled to receive, I freely and voluntarily agree to this Waiver and
Release.
1. In signing this Waiver and Release, I hereby waive and release any and all
claims relating to my employment with Commonwealth Edison Company and Unicom
Corporation and my service as an officer and director of each of them that I may
ever have had or that I now have against the following persons and
organizations:
a) Commonwealth Edison Company, Commonwealth Edison Company of Indiana,
Unicom Corporation and any of their affiliates, successors and
subsidiaries; and
b) Any and all officers, directors, employees, shareholders and agents of
Commonwealth Edison Company, Commonwealth Edison Company of Indiana,
Unicom Corporation and any of their affiliates, successors or
subsidiaries.
2. I understand and agree that in signing this document, I am waiving and
releasing any and all claims of whatever nature that I may ever have had or now
have against the persons and organizations listed in paragraph 1. I understand
and agree that among the claims that I am waiving and releasing are the
following:
a) Claims of age discrimination in employment under the federal Age
Discrimination in Employment Act;
b) Claims of race, color, sex, national origin, and religious
discrimination in employment under Title VII of the Civil Rights Act of
1964, as amended, and the Civil Rights Act of 1866, 42 U.S.C. (S)1981,
as amended;
c) Claims of disability discrimination under the Americans with
Disabilities Act;
d) Claims of discrimination in employment under any state or local
statute, ordinance, regulation, or constitution;
e) Claims of breach of contract or claims or vacation, bonuses, incentive
compensation or other benefits, except that nothing contained herein
shall constitute a waiver or release of any claim or cause of action
arising out of an alleged breach or other violation of any obligation
under the Retirement and Separation Agreement dated March 12, 1998; and
f) Any common law or statutory claims of wrongful discharge and any other
common law tort or statutory claims.
I understand and agree that I am waiving and releasing any and all claims
that I may ever have had or that I now have, regardless of their nature of
origin, and that the fact that such claim is not listed in subparagraphs
(a) through (f), above, does not mean that such claim is not included in
this Waiver and Release.
Appendix A
3. The existence of, and the terms of, the separation benefits described in
the Retirement and Separation Agreement dated March 12, 1998 and in this Waiver
and Release shall be confidential, and I will not reveal the contents of the
Retirement and Separation Agreement dated March 12, 1998 and this Waiver and
Release to anyone, including but not limited to, past, present or future
employees of the released parties, other than except to tax, financial or legal
advisers or members of the Executive's immediate family, or as may be required
by the lawful order of a court or agency of competent jurisdiction, where
required by law. The Retirement and Separation Agreement dated March 12, 1998
and this Waiver and Release may, however, be used as evidence in a judicial
proceeding in which any of the parties allege a breach or other violation of
this agreement.
4. I agree that I have no present or future right to seek employment with
Commonwealth Edison Company or Unicom Corporation. Further, I will not apply
for, or seek consideration for, any employment with Commonwealth Edison Company
or Unicom Corporation.
5. In signing this agreement, I agree and understand that this Waiver and
Release will be binding not only on me but also on my heirs, administrators, and
assigns with respect to the claims covered by this agreement. As of the date of
my signing of this agreement, I have made no assignment of any claims against
any of the persons or organizations described in paragraph 1.
6. The Retirement and Separation Agreement dated March 12, 1998 and this
Waiver and Release may only be modified in writing, and any party's failure to
enforce this agreement in the event of one or more events which violate this
agreement shall not constitute a waiver of any right to enforce this agreement
against subsequent violations.
7. I hereby acknowledge that, at the time I was given this Waiver and Release,
I was informed in writing by Commonwealth Edison Company that I had at least
twenty-one (21) days in which to consider whether I would sign this Waiver and
Release. I also acknowledge that, at the time I was given this Waiver and
Release, I was informed in writing that I should consult with an attorney before
signing this agreement. I have had an opportunity to consult with any attorney
and have either had such consultations or have decided of my own free will that
I will sign this agreement without consulting with legal counsel.
8. I acknowledge that I have been informed that I may revoke my acceptance of
this Waiver and Release by delivering a letter to S. Gary Snodgrass, Senior Vice
President, One First National Plaza, 37th Floor, Chicago, IL 60690 within seven
days of the date I have signed this agreement. I understand that this Waiver and
Release will not become effective until the eighth day following my signing of
this agreement. I understand and intend that, in the event I do not revoke my
acceptance of this agreement within the seven-day period described in this
paragraph, this Waiver and Release will be legally binding and enforceable.
9. This Waiver and Release shall, in all respects, be construed in accordance
with and governed by the laws of the State of Illinois.
I STATE THAT I HAVE READ THE FOREGOING, THAT IN UNDERSTAND EACH OF ITS TERMS AND
THAT I INTEND TO BE BOUND THERETO.
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Name (Print) Social Security Number
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Signature Date
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