Exhibit 10(pp)
SEPARATION
AGREEMENT
THIS SEPARATION AGREEMENT (this
“Agreement”) is effective as of November 30, 2008
(the “Termination Date”), by and between DPL Inc.
and The Dayton Power and Light Company (collectively, the
“Company”) and John J. Gillen (the
“Executive”).
WHEREAS , prior to November 30, 2008, the Executive
was the Senior Vice President, Chief Financial Officer and
Treasurer;
WHEREAS , the Executive and the Company have jointly
determined that, effective on the Termination Date, the Executive
shall resign from his employment with the Company;
WHEREAS , the Executive resigns from any and all offices
of the Company, and any other position, office or directorship of
any other entity for which he was serving at the request of the
Company as of November 30, 2008;
WHEREAS , the Company accepts the Executive’s
resignations;
WHEREAS , the Company and the Executive desire to set
forth the payments that the Executive will be entitled to receive
from the Company in connection with the cessation of his employment
with the Company;
WHEREAS , the Company and the Executive wish to resolve,
settle and/or compromise certain matters, claims and issues between
them, including, without limitation, the Executive’s
resignation from the offices he held and from his employment with
the Company;
WHEREAS , the Executive is a participant in the
DPL Inc. Severance Pay and Change of Control Plan (the
“DPL Severance Pay Plan”), and this Agreement is
intended to fully satisfy any obligation the Company may have to
the Executive under the DPL Severance Pay Plan; and
NOW, THEREFORE
, in consideration of the promises
and agreements contained herein and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, and intending to be legally bound, the Company and
the Executive hereby agree as follows:
1.
Resignation
. The Executive hereby resigns effective on
November 30, 2008 (the “Effective Date”), his
position as Senior Vice President, Chief Financial Officer and
Treasurer. The Executive further resigns, effective on
November 30, 2008: (a) from all other offices or
committees of the Company to which he has been elected by the Board
of Directors of the Company (or to which he has otherwise been
appointed), (b) from all directorships or offices of
any
entity that is a subsidiary of, or is otherwise
related to or affiliated with, the Company, (c) from all
administrative, fiduciary or other positions he may hold with
respect to arrangements or plans for, of or relating to the
Company, and (d) from any other directorship, office, or
position of any corporation, partnership, joint venture, trust or
other enterprise (each, an “Other Entity”) insofar as
the Executive is serving in the directorship, office, or position
of the Other Entity at the request of the Company. The
Company hereby consents to and accepts said
resignations.
2.
Additional Compensation and
Benefits . In consideration of the promises made in
this Agreement and subject to the conditions hereof, the Company
and the Executive agree to the following:
a)
Payment
. The Executive will be
entitled to receive the amount of $194,175 (calculated as the
prorated amount (11/12) of his target bonus of $211,750 under the
Executive Incentive Compensation Plan payable within thirty (30)
days of the Effective Date.
b)
Executive Incentive
Compensation Plan and Long Term Incentive Plan
. Except for the payment to be
made under Paragraph 2(a) of this Agreement, the Executive
will not be entitled to receive any incentive bonus payment
thereunder for fiscal year 2008. In addition, pursuant to the
terms of the Long Term Incentive Plan — Performance Shares
Agreement entered into between the Company and the Executive on
June 29, 2006, the Executive will not be eligible to receive
payment of performance shares for the Regular Performance Period,
as that term is defined in such Performance Share Agreement.
Further, pursuant to the terms of the Long Term Incentive Plan
— Performance Shares Agreements entered into between the
Company and the Executive on March 6, 2007 and on
February 21, 2008, the Executive will not be eligible to
receive payment of performance shares granted in those Performance
Share Agreements.
c)
Withholding
. The Company will withhold
such amounts from the payments described in this Paragraph 2
as are required by applicable tax or other law.
d)
Other Rights and
Obligations .
i)
Nothing in this Agreement will
affect the vested rights that the Executive may have, based on
termination of the Executive’s employment as of the
Termination Date, pursuant to any agreement, policy, plan, program
or arrangement of the Company providing for payment of accrued
vacation pay or retirement benefits under The Dayton Power and
Light Company Retirement Income Plan, The Dayton Power and Light
Company Employee Savings Plan, the DPL Inc. Employee Stock
Ownership Plan, and the DPL Inc. Supplemental Executive
Defined Contribution Plan (collectively, the “Retirement
Plans”) or deferred compensation under The Dayton Power and
Light Company
2
Key Employee Deferred Compensation Plan and the
DPL Inc. 2006 Deferred Compensation Plan for Executives, which
rights will be governed by the terms thereof, as such agreements,
policies, plans, programs or arrangements may be modified from time
to time consistent with the terms of such agreements, policies,
plans, programs or arrangements.
ii)
Except as specifically set forth in
this Agreement, no other compensation or benefits are due the
Executive under this Agreement, the DPL Severance Pay Plan, or any
other agreement, policy or program of the Company. The
Executive agrees that the compensation and benefits due him under
this Agreement are intended to and do fully satisfy any obligation
of the Company to the Executive under the DPL Severance Pay
Plan.
iii)
In connection with his termination
of employment, the Executive will follow the Company’s
standard procedures relating to departing employees, including,
without limitation, returning (and providing confirmation that he
has so returned) all Company-owned property, documents and
materials (including copies, reproduction, summaries and/or
analyses), and all other materials that contain, reflect,
summarize, describe, analyze, refer to, or relate to any items of
Confidential Information (as defined below).
3.
Release by the
Executive .
a)
The Executive for himself and his
dependents, successors, assigns, heirs, executors and
administrators (and his and their legal representatives of every
kind), hereby releases, dismisses, and forever discharges the
Company from any and all arbitrations, claims (including claims for
attorneys’ fees), demands, damages, suits, proceedings,
actions and/or causes of action of any kind and every description,
whether known or unknown, which the Executive now has or may have
had for, upon, or by reason of any cause whatsoever (except that
this release shall not apply to the obligations of the Company
arising under this Agreement), against the Company
(“Claims”), including but not limited to:
i)
any and all Claims, directly or
indirectly, arising out of or relating to: (a) the
Executive’s employment with the Company; and (b) the
Executive’s resignation as Senior Vice President, Chief
Financial Officer and Treasurer;
ii)
any and all Claims of
discrimination, including but not limited to claims of
discrimination on the basis of sex, race, age, national origin,
marital status, religion or disability, including, specifically,
but without limiting the generality of the foregoing, any claims
under the Age Discrimination in Employment Act, as amended (the
“ADEA”), Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act of 199
