Exhibit 10(g)
INDIVIDUAL
TERMINATION
AGREEMENT, RELEASE AND
WAIVER
This Agreement, Release and Waiver
(“Agreement”) is entered into by and between Irving B.
Yoskowitz (“Employee”) and Constellation Energy
Group, Inc. (“Company”) (collectively, the
“Parties”).
1.
In consideration of Employee’s
resignation from the Company effective October 31,
2008, (the “ Separation Date ”), and his
provision of certain waivers and releases as set forth in this
Agreement, the Company agrees to provide the following to Employee:
(a) a separation payment (the “ Separation
Payment ”) totaling $4,750,000.00 (subject to
applicable tax withholdings), which will be paid in a lump sum
following the seven-day revocation period outlined in paragraph 13
; and (b) a lump sum payment of $45,151.83 which
represents Employee and Company cost of medical and dental
insurance for Employee until December 2, 2010, and for his
spouse until October 11, 2014, which will be paid promptly
after January 1, 2009 . If Employee timely elects
continuation coverage pursuant to COBRA and continues to pay the
applicable premium, Employee will be eligible to continue these
health insurance benefits from the Company pursuant to COBRA (it
being understood and agreed that COBRA shall be applied for this
purpose without regard to the maximum period for continuation
coverage set forth in Section 4980B(f)(2)(B)(i) of the
Internal Revenue Code of 1986, as amended) until December 2,
2010 in the case of Employee and until October 11, 2014 in the
case of Employee’s spouse; provided that (i) Employee
and Employee’s spouse will not be entitled to any continued
coverage beyond the applicable termination date specified above and
(ii) such coverage may be terminated for Employee and
Employee’s spouse to the extent Employee and Employee’s
spouse, respectively, obtain health coverage in connection with
subsequent employment of Employee and/or Employee’s
spouse.
Employee acknowledges and agrees
that the foregoing consideration is over and above any benefit to
which Employee would be entitled under the Company’s benefit
plans and policies upon the termination of his employment.
Other than Employee’s base salary and unused vacation accrued
through the Separation Date (which shall be paid promptly after the
Separation Date), Employee acknowledges and agrees that Employee is
not entitled to any other consideration, separation benefits or
payments, or severance benefits or payments under any other Company
severance plan, program, arrangement or agreement, including any
2008 Annual Incentive Plan Award. Employee specifically
cancels/forfeits options and performance units granted in
February 2007 and February 2008. The options to
acquire 163,830 shares of Company common stock that were granted in
June 2005 as part of his employment offer, all of which have
already vested, will not be forfeited/canceled.
However, nothing in this Agreement affects any benefits to which
Employee may be entitled under the Company’s applicable
tax-qualified Pension Plan, his tax-qualified 401(k) or his
benefit accrued as of the date hereof under the Company’s
Benefit Restoration Plan.
2.
The Company hereby agrees to provide
the benefits set forth in paragraph 1 to Employee from the
Company’s general assets. Employee is not entitled to
any of the consideration described in paragraph 1 of this Agreement
prior to the expiration of the seven-day
THIS IS A LEGAL DOCUMENT AND ALL 7 PAGES MUST BE
RETURNED
revocation period following his execution of the
Agreement. Such amounts set forth in paragraph 1 are not
subject to alienation, assignment, attachment, garnishment or other
legal process by or on behalf of Employee until such amounts are
actually received by him. Such payments are subject to
applicable payroll tax withholding and will not be considered as
compensation for purposes of the Company’s retirement or
welfare benefit plans.
3.
(a)
Contingent upon the Company’s
payment of the Severance Payment , Employee knowingly, freely and
voluntarily agrees that, to the fullest extent the law permits, he
hereby releases and discharges the following entities: the Company
and any company controlling, controlled by or under common control
with the Company (“Affiliate”), their successors,
officers, directors, agents, representatives or employees
(collectively, “Company Releasees”) from any and all
debts, obligations, suits, claims, demands, judgments or causes of
action of any kind whatsoever, known or unknown, in common law, by
statute or on any other basis, for equitable relief, compensatory,
punitive or other damages, expenses (including attorneys’
fees), and/or reimbursements of costs of any kind, including, but
not limited to any and all suits, claims, demands, rights and/or
causes of action which might arise out of allegations relating to a
claimed breach of contract (express or implied), tort, legal
actions under Title VII of the Civil Rights Act of 1964, as amended
(42 U.S.C. §§ 2000e et seq .), the Civil Rights
Act of 1866 and 1871 (42 U.S.C. §§ 1981 and 1983), the
Americans with Disabilities Act (42 U.S.C. §§ 12101 et
seq .), the Age Discrimination in Employment Act (29 U.S.C.
§§ 621 et seq .), the Equal Pay Act (29 U.S.C.
§ 206(d)(1)), the Rehabilitation Act (29 U.S.C. §§
701-704), Executive Order 11246, the Employee Retirement Income
Security Act of 1974, as amended (29 U.S.C. §§ 1001 et
seq. ), the Worker Adjustment and Retraining Notification Act
(29 U.S.C. §§ 2101 et seq. ), Federal, State or
local wage and hour laws or wage payment collection laws, or any
other Federal, State, local or common law which may include but not
be limited to those concerning age, gender, race, religion,
national origin, disability or any other protected classification
or category which expressly or impliedly may form the basis of
alleged discrimination or retaliation, or any other law or
regulation. To the extent any such actions are pending,
Employee agrees that they are or will be immediately withdrawn with
prejudice before or upon his commencement of receipt of the
consideration set forth in paragraph 1. Employee also
knowingly and voluntarily agrees that, to the fullest extent the
law permits, he waives any and all causes of action and will not
participate in any judicial or arbitrable action against the
Company Releasees. Employee further agrees that should any
person, organization, or other entity file, charge, claim or sue or
cause or permit to be filed any civil action, suit or legal
proceeding involving any matter occurring at any time prior to his
execution of this Agreement, he will not seek or accept any
personal relief in such action, suit or legal proceeding.
Employee is not, however, waiving claims that may arise based on
events occurring after he executes this Agreement. Moreover,
nothing in this Agreement shall be construed to prohibit Employee
from engaging in any activity protected by the Sarbanes-Oxley Act
(15 U.S.C. §§ 7201 et seq. ).
Additionally, Employee does
specifically, knowingly and voluntarily waive any and all rights or
claims he may have under the Age Discrimination in Employment Act
(ADEA).
(b)
In exchange for Employee’s
agreement to grant the releases set forth in paragraph
3(a) above and the other agreements contained herein, each of
the Company, its
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Affiliates and all other Company Releasees
knowingly, freely and voluntarily agrees that, to the fullest
extent the law permits, he, she or it hereby releases and
discharges Employee, his immediate family members and all other
relatives and all their respective representatives, heirs,
successors and/or assigns (collectively along with Employee, the
“Employee Releasees”) from any and all debts,
obligations, suits, claims, demands, judgments or causes of action
of any kind whatsoever, known or unknown, in common law, by statute
or on any other basis, for equitable relief, compensatory, punitive
or other damages, expenses (including attorneys’ fees),
and/or reimbursements of costs of any kind, including, but not
limited to any and all suits, claims, demands, rights and/or causes
of action which might arise out of allegations relating to a
claimed breach of contract (express or implied), tort,
extra-contractual causes of action, regulatory or legislative
proceedings, or any other legal or equitable actions of any kind
whatsoever. To the extent any such actions are pending, the
Company a
