EXHIBIT NO. 10-45
SEPARATION AGREEMENT,
GENERAL RELEASE AND WAIVER
This Separation Agreement, General Release and Waiver is
made and entered into as of the 3rd day of November, 1997 by and
between JACK H. ROSKOZ (hereinafter referred to as "Employee")
and NEW YORK STATE ELECTRIC & GAS CORPORATION (hereinafter
referred to as the "NYSEG").
WITNESSETH:
WHEREAS, Employee has been employed by NYSEG since June 18,
1962 and has held the position of Executive Vice-President since
January 1, 1995; and
WHEREAS, Employee s employment with NYSEG shall terminate
effective midnight December 31, 1997 as a result of his voluntary
retirement on that date; and
WHEREAS, Employee and NYSEG desire to settle fully and
finally all rights and obligations between them including, but in
no way limited to, any rights and obligations that might arise
out of Employee s employment with NYSEG, and the termination
thereof;
NOW, THEREFORE, in consideration of the mutual promises
herein contained, it is agreed as follows:
1. Employee understands, acknowledges and agrees that his
employment with NYSEG will terminate as of December 31, 1997. A
copy of Employee s resignation as Executive Vice-President of
NYSEG is attached. After December 31, 1997, Employee will no
longer be authorized to act on behalf of NYSEG as an employee in
any manner or to incur any expense or obligation in the name of
NYSEG.
2. Provided that Employee does not revoke this Separation
Agreement, General Release and Waiver as provided in Paragraph
17, NYSEG agrees to pay Employee as follows:
a. Severance Pay in the amount of Thirty Three
Thousand Dollars ($33,000.00) payable in calendar year 1998, on
or before January 15, 1998.
b. Benefits under NYSEG s Supplemental Executive
Retirement Plan (SERP), commencing on or about January 1, 1998.
The Severance and SERP Payments provided for in this Paragraph
shall be subject to withholding for federal and state income
taxes, FICA, and such other and further deductions as may be
required by law.
3. In addition to the consideration provided in Paragraph
2, Employee shall be entitled to receive his pension in
accordance with the provisions of NYSEG s pension plan and shall
also be entitled to receive such other benefits as NYSEG provides
to its retired employees. Employee shall also be entitled to use
his accrued unused vacation prior to December 31, 1997 or be paid
for his accrued unused vacation through December 31, 1997 in
accordance with NYSEG s vacation policy. In addition, Employee
shall be entitled to his pro-rata accruals through December 31,
1997 under the NYSEG Additional Executive Incentive Compensation
Plan and the NYSEG Executive Incentive Share Plan, and shall be
reimbursed for expenses incurred in the course of his duties for
NYSEG through December 31, 1997 in accordance with NYSEG s
existing policies and procedures. Finally, Employee shall be
entitled to benefits to the extent provided in the Employee
Invention and Confidentiality Agreement Existing Executive, as
amended, by and between NYSEG and Employee.
4. Employee has returned or will return to NYSEG prior to
December 31, 1997 all NYSEG information and related reports,
files, memoranda, records, employee identification badges or
cards, keys, computer access codes, software and other property
which Employee received or prepared or helped prepare in
connection with his employment; and Employee has not retained and
will not retain any copies, duplicates, reproductions or excerpts
thereof.
5. Except as expressly provided for in this Agreement and
the Employee Invention and Confidentiality Agreement Existing
Executive, as amended, Employee acknowledges and agrees that
NYSEG owes Employee no wages, bonuses, vacation pay, sick time,
personal time, holidays, severance pay, or other compensation,
benefits, or payments of any kind or nature.
6. As a material inducement to NYSEG to enter into this
Separation Agreement, General Release and Waiver, and in
consideration that NYSEG is paying and/or providing the payment
set forth in Paragraph 2 above, which is a payment to which
Employee would not have been entitled if Employee had not signed
this Separation Agreement, General Release and Waiver, Employee
hereby releases, acquits and forever discharges NYSEG, its
directors, officers, shareholders, employees, representatives,
agents, servants, successors and assigns, and all persons acting
by, through or under or in concert with any of them and any
subsidiaries or affiliates of NYSEG and their directors,
officers, shareholders, employees, representatives, agents,
servants, successors and assigns (collectively "Releasees"), or
any of them, from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of actions, suits, rights, demands,
costs, losses, debts and expenses (including attorneys fees and
costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected, including, but not limited to,
rights under federal, state or local laws prohibiting
discrimination on the basis of sex, race, creed, national origin,
color, religion, marital status, disability, age, or other forms
of discrimination, claims growing out of Employee s employment
relationship with NYSEG and/or the termination of that employment
relationship, which Employee now has, owns, or holds, or claims
to have, own or hold, or which Employee at any time heretofore
had, owned or held, or claimed to have, own or hold, against each
or any of the Releasees. Except as provided for in Paragraph 9
below, the General Release and Waiver set forth above
specifically includes and waives any and all claims, rights,
demands, obligations, losses, causes of action, costs, expenses
and liabilities for compensation and/or exemplary damages and/or
other relief arising under the Age Discrimination in Employment
Act of 1967, as amended, Title VII of the Civil Rights Act of
1964, as amended, and any other federal, state or local law
dealing with discrimination in employment on the basis of sex,
race, creed, national origin, color, religion, marital status,
disability, or age. The General Release and Waiver set forth
above does not and is not intended to waive any rights or claims
that may arise after the date on which Employee executes this
Separation Agreement, General Release and Waiver.
7. The Employee agrees that he will not make or publish
any statements that disparage, denigrate or are otherwise
critical of NYSEG or any other Releasees. NYSEG agrees that it
will not make any statements that disparage, denigrate or are
otherwise critical of Employee.
8. In the event that Employee attempts to revoke this
Agreement on or after its Effective Date or attempts to pursue a
released claim against any of the Releasees, Employee agrees to
pay all costs and expenses incurred by Releasees in defending
against the claim including reasonable attorneys fees. This is
in addition to any other remedy otherwise available to Releasees.
9. NYSEG and Employee agree that this Agreement shall not
affect the rights and responsibilities of the US Equal Employment
Opportunity Commission (hereinafter "EEOC") to enforce the Age
Discrimination in Employment Act of 1967, as amended and other
laws. In addition, NYSEG and Employee agree that this Agreement
shall not be used to justify interfering with Employee s
protected right to file a charge or participate in an
investigation or proceeding conducted by the EEOC. NYSEG and
Employee further agree that the Employee knowingly and
voluntarily waives all rights or claims (that arose prior to
Employee s execution of this Agreement) Employee may have against
the Releasees, or any of them, to receive any benefit or remedial
relief (including, but not limited to, reinstatement, back pay,
front pay, damages, attorneys fees, experts fees) as a
consequence of any investigation or proceeding conducted by the
EEOC and any litigation concerning any facts alleged in any such
charge.
10. Upon and after the effectiveness of this Separation
Agreement, General Release and Waiver, Employee shall cooperate
with NYSEG, its subsidiaries and affiliates without further
compensation or consideration (except for reimbursement of
ordinary, necessary and reasonable business expenses for food,
transportation and/or lodging, if any, incurred in fulfillment of
a specific request from NYSEG for cooperation) in connection with
NYSEG, subsidiary or affiliate business activities that occurred
at any time within the scope of Employee s employment with NYSEG,
such cooperation to include, but not limited to, reasonably
requested sworn testimony concerning such NYSEG, subsidiary or
affiliate business activities. NYSEG agrees to use its best
efforts to limit any specific requests for cooperation in
accordance with this paragraph to five (5) days per year. During
the first two years after the execution of this Agreement, NYSEG
further agrees that specific requests for cooperation which
exceed five (5) days per year will be compensated by NYSEG at the
rate of $1500.00 per day for each day beyond five (5) days in
that year. NYSEG shall not be liable for such compensation
unless Employee s specific cooperation on a matter has been
requested by NYSEG in writing, for a period in excess of five (5)
days.
Beginning in the third year following execution of this
Agreement, and continuing thereafter, specific requests for
cooperation will be compensated by NYSEG at the rate of $1500.00
per day. NYSEG shall not be liable for such compensation unless
Employee s specific cooperation on a matter has been requested by
NYSEG in writing.
11. The parties represent and agree that they will keep the
terms, amount and fact of this Separation Agreement, General
Release and Waiver completely confidential, and that Employee
will not disclose any information concerning this Separation
agreement, General Release and Waiver to anyone except his
immediate family and his private attorney(s) and/or
accountant(s), provided, that they agree to keep said information
confidential and not disclose it to others; and NYSEG agrees not
to disclose any information concerning this Separation Agreement,
General Release and Waiver except to those persons or entities
which have a need for such information.
12. Employee agrees not to seek employment with NYSEG or
any of its subsidiaries or affiliates at any time in the future.
13. NYSEG hereby advises Employee to consult with an
attorney prior to executing the Separation Agreement, General
Release and Waiver. Employee represents and agrees that he fully
understands his right to discuss all aspects of this Separation
Agreement, General Release and Waiver with his private
attorney(s); that to the extent, if any, that he desires, he has
availed himself to this right; and that he has carefully read and
fully understands all of the provisions of this Separation
Agreement, General Release and Waiver; and that he is voluntarily
entering into this Separation Agreement, General Release and
Waiver.
14. Employee represents and acknowledges that in executing
this Separation Agreement, General Release and Waiver he does not
rely and has not relied upon any representation or statement not
set forth herein made by any of the Releasees or by any of the
Releasees agents, representatives, or attorneys with regard to
the subject matter, basis or effect of this Separation Agreement,
General Release and Waiver or otherwise.
15. Employee and NYSEG understand and acknowledge that this
Separation Agreement, General Release and Waiver shall not in any
way be construed as an admission of wrongdoing or liability on
the part of NYSEG, Employee or any other person.
16. Employee represents and agrees that he fully
understands his right to a period of twenty-one (21) days from
the receipt of this Separation Agreement, General Release and
Waiver within which to consider this Separation Agreement,
General Release and Waiver. If Employee executes this Agreement
at any time prior to the end of the, at least, twenty-one (21)
day period that NYSEG gave Employee in which to consider this
Agreement, such early execution was a knowing and voluntary
waiver of Employee s right to consider the Agreement for at least
twenty-one (21) days and was due to Employee s belief that
Employee had ample time in which to consider and understand this
Agreement, and in which to review this Agreement with an
attorney.
17. For a period of seven (7) days following the execution
of this Separation Agreement, General Release and Waiver,
Employee may revoke this Separation Agreement, General Release
and Waiver by delivering a written letter of revocation to
Richard R. Benson, Director of Human Resources, 4500 Vestal
Parkway East, Binghamton, New York 13903. This Separation
Agreement, General Release and Waiver shall not become effective
or enforceable until the Revocation Period has expired.
18. This Separation Agreement, General Release and Waiver
sets forth the entire agreement between the parties hereto, and
fully supersedes any and all prior agreements or understanding
between the parties hereto pertaining to the subject matter
hereof.
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IN WITNESS WHEREOF, Employee and NYSEG have executed this
Separation Agreement, General Release and Waiver as of the date
and year written below.
NEW YORK STATE ELECTRIC
& GAS CORPORATION
Jack H. Roskoz By Richad R. Benson
Jack H. Roskoz Richard R. Benson
Dated: November 3, 1997 Dated: November 3, 1997
STATE OF NEW YORK )
) SS.:
COUNTY OF BROOME )
On this 3rd day of November, 1997, before me, the
subscriber, personally came RICHARD R. BENSON, Director of Human
Resources for New York State Electric & Gas Corporation, known to
me to be the same person described in and who executed the within
instrument on behalf of New York State Electric & Gas Corporation
and he duly acknowledged to me that he executed the same.
Joanne M. Whalen
Notary Public
STATE OF NEW YORK )
) SS.:
COUNTY OF BROOME )
On this 3rd day of November, 1997, before me, the
subscriber, personally came JACK H. ROSKOZ, to me known and known
to me to be the same person described in and who executed the
within instrument and he duly acknowledged to me that he executed
the same.
Joanne M. Whalen
Notary Public
November 3, 1997
New York State Electric and Gas Corporation
4500 Vestal Parkway East
Binghamton, New York 13903
Ladies and Gentlemen:
As a result of my retirement I hereby tender my resignation
as Executive Vice-President of New York State Electric & Gas
Corporation effective midnight December 31, 1997.
I also tender my resignation, effective the same time and
date, as President and Director of the Somerset Railroad
Corporation, and as a Director of Xenergy Corporation.
Sincerely,
Jack H. Roskoz