Exhibit 10.30
FORM OF SEPARATION
AGREEMENT
THIS SEPARATION AGREEMENT (this
“ Agreement ”) is entered into as of
, 20 between Exelon Corporation
(“ Exelon ”),
(“Subsidiary”, and, collectively with Exelon, the
“ Company ”) and
(the “ Executive ”).
WITNESSETH:
WHEREAS, the Executive is separating
from all positions with Exelon, SUBSIDIARY and their
affiliates.
NOW, THEREFORE, in consideration of
the mutual promises and agreements contained herein, the adequacy
and sufficiency of which are hereby acknowledged, the Company and
the Executive agree as follows:
1. Resignation; Termination of
Employment . The Executive’s employment will be
terminated and Executive hereby resigns, effective as of the close
of business on
, 20 (the “ Termination
Date ”), as
of Subsidiary and from all other positions as an officer or
director of the Company and its subsidiaries and
affiliates.
2. Payment of Accrued Amounts
. The Company shall pay to the Executive not later than the second
payroll date after the Termination Date the following
amounts:
(a) the portion of his or her annual
salary that has accrued but is unpaid as of the Termination Date;
and
(b) an additional amount
representing the Executive’s accrued but unused vacation days
as of the Termination Date, if any.
3. Severance Payments .
Subject to the Executive’s execution, not earlier than the
Termination Date and not later than forty-five days after the
Termination Date, of the waiver and release attached hereto as
Exhibit I and made a part hereof (the “ Waiver and
Release ”), the Company shall pay to the
Executive:
(a) Cash severance payments in an
aggregate amount equal to $
, representing the product of
times the sum of (i) $
(representing the Executive’s current annual base salary) and
(ii) $
(representing the Executive’s target annual incentive for
calendar year 20 ). Payment shall
commence no later than the second payroll date following the date
that the Executive signs and returns the Waiver and Release, in
substantially equal regular payroll installments over a period of
fifteen months.
(b) Executive shall remain eligible
to receive a pro-rated annual incentive award for 20
, payable at the time, such awards
are paid to active executives (but not later than March 15, 20
).
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4. Tax Withholding . The
Company shall deduct from the amounts payable to the Executive
pursuant to this Agreement the amount of all required federal,
state and local withholding taxes in accordance with the
Executive’s Form W-4 on file with the Company and all
applicable social security and Medicare taxes. The Company shall be
entitled to withhold from the shares of common stock of the Company
to be delivered to the Executive pursuant to Sections 6(a) and 6(b)
a number of shares of common stock of the Company having a value
(based upon the closing price of a share of the Company’s
common stock as reported on the New York Stock Exchange on the
applicable valuation date) equal to the minimum amount of all
required federal, state and local withholding taxes and all
applicable social security and Medicare taxes with respect to the
lapse of forfeiture conditions applicable the vesting of
performance shares or the vesting of options.
5. Outplacement Assistance .
During the twelve-month period following the Termination Date, the
Company shall reimburse the Executive for reasonable fees incurred
for services rendered to the Executive by a professional
outplacement organization selected by the Executive and acceptable
to the Company to provide individual outplacement
services.
6. Long Term Incentive Awards
.
(a) Each of the Executive’s
options to purchase common stock of Exelon Corporation granted
pursuant to Exelon’s long term incentive plan which is vested
and exercisable as of the Termination Date shall remain so
exercisable for ninety days following the Termination Date. Each of
Executive’s stock options that are not vested and exercisable
as of the Termination Date shall be forfeited.
(b) Subject to the Executive’s
timely execution of the Waiver and Release, Executive shall become
fully vested in the number of shares of common stock of Exelon
Corporation representing outstanding non-vested performance share
awards for 20 (and reinvested
dividends thereunder). Executive shall also remain eligible to
receive a pro-rated performance share award for 20
, payable in stock at the time the
first installments of such awards are paid to active executives
(but not later than March 15, 20
), subject to any cash payment
election then effective under the program rule.
7. Supplemental Executive
Retirement Benefits . The Executive shall be eligible for a
retirement benefit under the Exelon Corporation Supplemental
Management Retirement Plan (the “ SERP ”) in
accordance with the terms and conditions thereof, except that in
determining such benefit, the Executive shall subject to the
Executive’s timely execution of the Waiver and Release, be
credited with
months additional service calculated as though he or she received
the severance benefits specified in Section 3(a) as regular
salary incentive pay over such period (and limited in its
application to the amounts of such payments that exceed the
compensation limitations applicable to qualified pension plans
under the Code). Such benefit shall be paid as provided in
Section 8(b).
8. Employee and Other
Benefits .
(a) Subject to the Executive’s
timely execution of the Waiver and Release:
(i) During the period commencing on
the Termination Date and ending
months after the Termination Date (the “ Severance
Period ”) and in lieu of COBRA continuation coverage
during such period with respect to healthcare benefits,
(A) the Executive (and his or her eligible dependents) shall
be eligible to participate in, and shall receive benefits under
Exelon’s welfare benefit plans (including medical, dental,
vision and hearing) in which the Executive (and his or her eligible
dependents) were participating immediately prior to the Termination
Date, and (B) the Executive shall be eligible to participate
in the base life insurance programs in which he or she was a
participant immediately prior to the Termination Date, in each case
on the same basis as if the Executive had remained actively
employed during the Severance Period.
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(ii) Following the Severance Period,
the Executive (and his or her eligible dependents) shall be
eligible for continued health care coverage at Executive’s
sole expense for any remaining period required by COBRA.
(b) The Company shall pay to the
Executive, in the time and manner specified in the terms and
conditions of such plans and any distribution elections by the
Executive in effect thereunder, his or her account balances (if
any) under Exelon’s deferred compensation and stock deferral
plans, as adjusted by all applicable earnings and losses on such
account balances, and the Executive’s benefit under the
supplemental executive retirement plan; provided that, to the
extent required by section 409A of the Code, no such payment or
benefit shall commence prior to the date that is six months after
the Termination Date.
(c) The Executive shall be entitled
to purchase the computer furnished by the Company for his or her
use. The Executive shall be responsible for payment of expenses
incurred after the Termination Date with respect to the
Company-owned cellular phone furnished for his or her
use.
(d) If the Executive is entitled to
any benefit under any employee benefit plan of the Company that is
accrued and vested on the Termination Date and that is not
expressly referred to in this Agreement, such benefit shall be
provided to the Executive in accordance with the terms of such
employee benefit plan.
(e) Notwithstanding
Section 8(d) or anything else contained in this Agreement to
the contrary, the Executive acknowledges and agrees that he or she
is not and shall not be entitled to benefits under any other
severance or change in control plan, program, agreement or
arrangement, and that the benefits provided under this Agreement
shall be the sole and exclusive benefits to which the Executive may
become entitled upon his or her termination of employment. In the
event the Executive dies prior to executing the Waiver and Release
attached hereto, neither he or she, his or her estate, nor any
other person shall be entitled to any further compensation or
benefits under this Agreement, unless and until the executor of the
Executive’s estate (and/or such other heirs or
representatives as may be requested by the Company) executes upon
Company request and does not revoke such a Waiver and
Release.
9. Restrictive Covenants .
The Executive acknowledges and agrees that he or she is bound by,
and subject to, the Restrictive Covenants and the Waiver and
Release. The Executive shall comply with, and observe, the
Restrictive Covenants including, without
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limitation, the confidential information,
non-competition, non-solicitation and intellectual property
provisions and related covenants contained therein, all of which
are hereby incorporated by reference. In the event the Company
determines that Executive has breached any of the Restrictive
Covenants or the Waiver and Release or has engaged in conduct
during his or her employment with the Company that would constitute
ground for termination for Cause, benefits under this Agreement
shall terminate immediately, and Executive shall reimburse Exelon
for any benefits received.
10. Certain Tax Matters
.
(a) If it is determined by
Exelon’s independent auditors that any severance payment,
benefit or enhancement that is provided to the Executive pursuant
to the terms of the this Agreement is or will become subject to any
excise tax under section 4999 of the Internal Revenue Code of 1986,
as amended, or any similar tax payable under any United States
federal, state, local, foreign or other law ( “Excise
Taxes” ), then such payment, benefit or enhancement shall
be reduced to the largest amount which would not cause any such
Excise Tax to by payable by the Executive and not cause a loss of
the related income tax deduction by the Company.
(b) The parties intend this
Agreement to comply with section 409A of the Code. In the event the
timing of any payment or benefit under this Agreement would result
in any tax or penalty under section 409A of the Code,
the
