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 


 


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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 1990, the Family and
Medical Leave Act of 1993 and Ohio Revised Code Chapter 4112;


 


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iii)                                any
and all Claims of wrongful or unjust discharge or breach of any contract or
promise, express or implied; and


 


iv)                                   any
and all Claims under or relating to any and all employee compensation, employee
benefit, employee severance or employee incentive bonus plans and arrangements;
provided that he shall remain entitled to the amounts and benefits specified in
Paragraph 2 above.


 


b)                                      The
Executive’s release excludes claims that cannot be waived by law, including the
right to file a charge with the Equal Employment Opportunity Commission;
provided, however, that the Executive specifically waives and releases the
right to any monetary recovery or other relief from such a filing.


 


c)                                      The
Executive understands and acknowledges that the Company does not admit any
violation of law, liability or invasion of any of his rights and that any such
violation, liability or invasion is expressly denied.  The consideration provided under this
Agreement is made for the purpose of settling and extinguishing all Claims and
rights (and every other similar or dissimilar matter) that the Executive ever
had or now may have or ever will have against the Company to the extent
provided in this Paragraph 3.  The
Executive further agrees and acknowledges that no representations, promises or
inducements have been made by the Company other than as appear in this
Agreement.


 


d)                                      The
Executive further understands and acknowledges that:


 


i)                                        the
release provided for in this Paragraph 3, including claims under the ADEA
to and including the date of this Agreement, is in exchange for the additional
consideration provided for in this Agreement, to which consideration he was not
heretofore entitled;


 


ii)                                    he
has been advised by the Company to consult with legal counsel prior to
executing this Agreement and the release provided for in this Paragraph 3,
has had an opportunity to consult with and to be advised by legal counsel of
his choice, fully understands the terms of this Agreement, and enters into this
Agreement freely, voluntarily and intending to be bound;


 


iii)                                he
has been given a period of twenty-one (21) days to review and consider the
terms of this Agreement, and the release contained herein, prior to its
execution and that he may use as much of the twenty-one (21) day period as he
desires; and he may, within seven (7) days after execution, revoke this
Agreement.  Revocation shall be made by
delivering a notice of revocation to the Senior Vice President, Human Resources
and Administration of the Company no later than the close of business on the
seventh (7th) day after
the Executive executes this Agreement. 
If the Executive exercises his right to revoke this Agreement, all of
the terms and conditions of the Agreement shall be of no force and effect and
the Company shall have no obligation to satisfy the 


 


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terms or make any payment to the Executive as set forth in
Paragraph 2 of this Agreement.


 


e)                                      The
Executive and the Company acknowledge that his resignation is by mutual
agreement between the Company and the Executive, and that the Executive waives
and releases any claim that he has or may have to reemployment by the Company.


 


f)                                        For
purposes of the above provisions of this Paragraph 3, the “Company” shall
include its predecessors, subsidiaries, divisions, related or affiliated
companies, officers, directors, stockholders, members, employees, heirs,
successors, assigns, representatives, agents and counsel.


 


4.                                      Confidential
Information.  The Executive acknowledges
and agrees that as an employee of the Company, he may have created or had
access to information, trade secrets, substances and inventions including
confidential information relating to the business or interests of persons with
whom the Company or its affiliated companies may have commercial, technical, or
scientific relations (“Information”) that is valuable to the Company or its
affiliated companies and may lose its value if disclosed to third parties.  The Executive therefore agrees to treat all
such Information as confidential and belonging to the Company and to take all
actions reasonably requested to confirm such ownership.  The Executive will not, without the prior
written consent of the Company, disclose or use the Information.  This non-disclosure obligation shall continue
until such Information becomes public knowledge through no fault of the
Executive.  The Executive agrees to
promptly inform the Company of any request, order, or legal process requesting
or requiring the Executive to disclose Information.  The Executive will cooperate with legal
efforts by the Company to prevent or limit disclosure of Information.


 


5.                                      Breach.


 


a)                                      If
the Company determines in good faith that the Executive has breached any of the
provisions of this Agreement, then the Company may, upon providing ten calendar
days’ advance written notice to the Executive (during which time he has an
opportunity to respond in writing to the Company), terminate all remaining
payments and benefits described in this Agreement, and in addition, the Company
shall be entitled to obtain reimbursement from the Executive of all payments
and benefits already provided pursuant to Paragraph 2 of this Agreement,
plus any expenses and damages incurred as a result of the breach (including,
without limitation, reasonable attorneys’ fees), with the remainder of this
Agreement, and all promises and covenants herein, remaining in full force and
effect.


 


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i)                                        The
Company will not terminate pursuant to Paragraph 5(a) any benefits in
which the Executive had vested as of the Termination Date under the Retirement
Plans.  The Executive’s COBRA rights, if
any, will not be reduced by any action taken by the Company under
Paragraph 5(a).


 


ii)                                    The
Executive may challenge any Company action under Paragraph 5(a).


 


6.                                      Successors
and Binding Agreement.


 


a)                                      This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor of or to the Company, including, without limitation, any persons acquiring,
directly or indirectly, all or substantially all of the business and/or assets
of the Company whether by purchase, merger, consolidation, reorganization, or
otherwise (and such successor shall thereafter be deemed included in the
definition of “the Company” for purposes of this Agreement), but shall not
otherwise be assignable or delegable by the Company.


 


b)                                      This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrator, successors, heirs,
distributees, and/or legatees.


 


c)                                      This
Agreement is personal in nature and none of the parties hereto shall, without
the consent of the other parties, assign, transfer or delegate this Agreement
or any rights or obligations hereunder except as expressly provided in
Subparagraphs (a) and (b) of this Paragraph 6.


 


d)                                      This
Agreement is intended to be for the exclusive benefit of the parties hereto,
and except as provided in Subparagraphs (a) and (b) of this
Paragraph 6, no third party shall have any rights hereunder.


 


7.                                      Statements
to Third Parties.  Because the
purpose of this Agreement is to settle amicably any and all potential disputes
or claims among the parties, the Executive shall not, directly or indirectly,
make or cause to be made any statements to any third parties criticizing or
disparaging the Company or comment on its character or business
reputation.  The Executive further hereby
agrees not: (a) to comment to others concerning the status, plans or
prospects of the business of the Company, or (b) to engage in any act or
omission that would be detrimental, financially or otherwise, to the Company,
or that would subject the Company to public disrespect, scandal, or
ridicule.  For purposes of this Paragraph 7,
the “Company” shall mean DPL Inc. and its directors, officers,
predecessors, parents, subsidiaries, divisions, and related or affiliated
companies.  The Company agrees that its
directors and executive officers shall not, directly or indirectly, make or
cause to be made any statements to any third parties criticizing or disparaging
the Executive or comment negatively on his character or business
reputation.  The foregoing undertakings
shall not 


 


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apply to any statements or opinions that are made under oath in any
investigation, civil or administrative proceeding or arbitration in which the
individual has been compelled to testify by subpoena or other judicial process
or which are privileged communications.


 


8.                                      Notices.  For all purposes of this Agreement, all
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered, addressed to the Company (to the attention
of the Senior Vice President, Human Resources and Administration) at its
principal executive offices and to the Executive at his principal residential
address on file with the Company, or to such other address as any party may
have furnished to the other in writing and in accordance herewith.  Notices of change of address shall be
effective only upon receipt.


 


9.                                      Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
agreed to in writing signed by the Executive and the Company.  No waiver by either party hereto at any time
of any breach by the other party hereto or compliance with any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.  No
agreements or representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by any of the parties that
are not set forth expressly in this Agreement and every one of them (if, in
fact, there have been any) is hereby terminated without liability or any other
legal effect whatsoever.


 


10.                               Entire
Agreement.  This Agreement shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and, except to the extent otherwise provided herein,
shall supersede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations or warranties,
whether oral or written, by any party hereto or any of its representatives
pertaining to such subject matter.


 


11.                               Governing
Law.  Any dispute, controversy,
or claim of whatever nature arising out of or relating to this Agreement or
breach thereof shall be governed by and under the laws of the State of Ohio.


 


12.                               Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall nevertheless remain in full
force and effect.


 


13.                               Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.


 


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14.                               Captions
and Paragraph Headings.  Captions
and paragraph headings used herein are for convenience and are not part of this
Agreement and shall not be used in construing it.


 


15.                               Further
Assurances.  Each party hereto
shall execute such additional documents, and do such additional things, as may
reasonably be requested by the other party to effectuate the purposes and
provisions of this Agreement.


 


IN WITNESS WHEREOF, the parties have executed
and delivered this Separation Agreement on November       ,
2008, effective as of the date first set forth above.


 


	
   

  	
  DPL INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE DAYTON POWER AND LIGHT COMPANY

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  John J. Gillen

  



 


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