Exhibit 10.2


 


Execution Copy


 


TERMINATION AGREEMENT


 


THIS
TERMINATION AGREEMENT (this “Agreement”), dated as of November 3,
2010, by and among EDF Inc. (f/k/a EDF Development Inc.), a Delaware
corporation (“EDFD”), E.D.F. International S.A. (f/k/a Electricité de
France International, S.A.), a société anonyme
organized under the laws of France (“EDFI”) and Constellation Energy
Group, Inc., a Maryland corporation (“Constellation”, and together
with EDFD and EDFI, the “Parties”).


 


W I T N E S S E T H :


 


WHEREAS, on October 26, 2010, Constellation
and Electricité de France, S.A. entered into a Master Agreement, whereby
Constellation agreed, among other things, to terminate, and Electricité de
France, S.A. agreed to cause its subsidiaries to terminate, the Amended and
Restated Investor Agreement dated December 17, 2008 by and between
Constellation and EDFI (the “Amended and Restated Investor Agreement”)
and the Stock Purchase Agreement dated December 17, 2008, by and among
Constellation, EDFD and EDFI (the “Stock Purchase Agreement”); and


 


WHEREAS, the Parties desire to terminate the
Amended and Restated Investor Agreement and the Stock Purchase Agreement as
provided in this Agreement.


 


NOW,
THEREFORE, in consideration of the promises and the mutual representations,
warranties, covenants and agreements set forth in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:


 


ARTICLE I



TERMINATION


 


Section 1.1                                   Termination
of the Amended and Restated Investment Agreement and Stock Purchase Agreement.  The Parties hereby immediately, irrevocably
and unconditionally terminate in full the Amended and Restated Investment
Agreement and the Stock Purchase Agreement, which shall henceforth be null and
void, and each Party for itself and its Affiliates (as defined below),
predecessors, successors in interest, assigns, equityholders, members,
partners, principals, officers, directors, attorneys, agents and other
representatives hereby absolutely and irrevocably releases and forever
discharges the other parties to the Amended and Restated Investment Agreement
and the Stock Purchase Agreement, together with their respective Affiliates,
predecessors, successors in interest, assigns, equityholders, members,
partners, principals, officers, directors, attorneys, agents and other
representatives from liability for any and all claims, actions, causes of
action, demands, debts, liens, contracts, agreements, promises,
representations, torts, costs, legal fees, monies, obligations, judgments,
damages or liabilities of any nature and kind and whether in law, equity,
contract, tort or otherwise (“Losses”), in each case to the extent
arising out of, or under, or relating to the Amended and Restated Investment
Agreement, the Stock Purchase Agreement, the purchase of any 


 

















 


Constellation securities prior to the date hereof or the Parties’
capacities as shareholders prior to the date hereof of  one another, whether or not known now,
heretofore or hereafter, whether anticipated or unanticipated, suspected or
claimed, fixed or contingent, whether accrued or not and whether damage has yet
resulted from such or not, which such party had, has or may ever have.  For purposes of this Agreement, “Affiliate”
means, with respect to any Person (as defined in Section 2.1(c)), any
other Person directly or indirectly controlled by, controlling or under common
control with, such Person.


 


ARTICLE II



REPRESENTATIONS AND WARRANTIES


 


Section 2.1                                   Representations
and Warranties of the Parties.  Each of Constellation, EDFD and EDFI hereby
represents and warrants to the other, as of the date hereof, as follows:


 


(a)                                  Organization.  Such Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite power and authority to
carry on its business as it is now being conducted.


 


(b)                                 Due
Authorization.  Such Party
has all right, power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. 
The execution, delivery and performance by such Party of this Agreement,
and the consummation by such Party of the transactions contemplated hereby and
thereby (i) are within the power and authority of such Party and
(ii) have been duly authorized by all necessary action on the part of such
Party.  This Agreement constitutes a
valid and binding agreement of such Party enforceable against such Party in
accordance with its respective terms, except as such enforcement is limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors’ rights generally and for limitations imposed by general principles
of equity.


 


(c)                                  Consents; No
Violations.  Neither the
execution, delivery or performance by such Party of this Agreement nor the
consummation of the transactions contemplated hereby will (i) conflict
with, or result in a breach or a violation of, constitute a default under or
give any third party the right to terminate or accelerate any obligation under
any provision of (A) the organizational or governing documents of such
Party, (B) any indenture, mortgage, loan agreement or material lease or
any other material agreement to which such Party is a party or its assets are
bound, (C) any material judgment, order or decree applicable to any such
Party or its assets, or (D) any Law (as defined below) applicable to such
Party or its assets, or (ii) require any consent, approval or
authorization of, notification to, filing with, or exemption or waiver by, any
Governmental Entity (as defined below) or any other Person (as defined
below).  For purposes of this Agreement, (i) “Governmental
Entity” shall mean any supernational, national, foreign, federal, state or
local judicial, legislative, executive, administrative, governmental or
regulatory body, commission or authority (including any self-regulatory
organization); (ii) “Law” shall mean, for any Person, all foreign,
federal, state, and local laws, statutes, ordinances, rules, regulations,
orders, permits, licenses, certificates of authority, judgments, decrees and
bodies of law, in each case of or by any Governmental Entity, to which such
Person or any of its business is subject; and (iii) “Person” shall
mean any individual, firm, corporation, limited liability 


 


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company, partnership, company, trust or other entity, and shall include
any successor (by merger or otherwise) of such entity.


 


(d)                                 Litigation.  There is no action, suit, claim, proceeding, arbitration,
governmental inquiry or investigation pending or, to such Party’s Knowledge (as
defined below), threatened against such Party, at law or in equity, before or
by any governmental or regulatory department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which, if adversely determined, would
prevent the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof.  For
purposes of this Agreement, “Knowledge”, with respect to each Party,
shall mean the actual knowledge of any executive officer of such Party.


 


ARTICLE III


 


MISCELLANEOUS


 


Section 3.1                                   Successors
and Assigns.  This
Agreement shall bind and inure to the benefit of the Parties and their
respective successors, permitted assigns, heirs and personal representatives.


 


Section 3.2                                   Entire
Agreement.  This
Agreement contains the entire agreement among the Parties with respect to the
transactions contemplated by this Agreement and supersedes all prior and
contemporaneous arrangements or understandings with respect thereto.


 


Section 3.3                                   Notices.  All notices, requests, consents and other
communications hereunder to any Party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy, nationally
recognized overnight courier or first class registered or certified mail,
return receipt requested, postage prepaid, addressed to such Party at the
address set forth below or such other address as may hereafter be designated in
writing by such Party to the other Parties:


 


(i)                                     if to
Constellation, to:


 


Constellation
Energy Group, Inc.


750
East Pratt Street, 18th Floor


Baltimore,
Maryland 21202


Phone: (410) 470-3011


Fax:  (410) 470-5766

Attention:                 Charles
Berardesco


 


with
a copy (which shall not constitute notice) to:


 


Kirkland & Ellis LLP

655 15th Street, NW


Washington, DC 20005


 


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Phone: (202) 879-5000

Fax:  (202) 879-5200

Attention: George P. Stamas and Mark D. Director


 


(ii)                                  If to EDFI to:


 


E.D.F. International S.A.


20, Place de la Défense


92050
Paris


France


Phone: +33 1 56 65 08 71


Fax: +33 1 56 65 20 03


Attention:  Anne Collas-Thiebault


 


with
a copy (which shall not constitute notice) to:


 


Cleary
Gottlieb Steen & Hamilton LLP


One
Liberty Plaza


New
York, NY 10006


Phone:
(212) 225-2000


Fax:
(212) 225-3999


Attention:
Neil Q. Whoriskey and Pierre-Yves Chabert


 


(iii)       if to EDFD to:


 


EDF Inc.

5404 Wisconsin Avenue, Suite 400


Chevy Chase, MD 20815


Phone: (202) 744-8019


Fax: (202) 744-8049


Attention:  Alexander Daniels


 


with
a copy (which shall not constitute notice) to:


 


Cleary
Gottlieb Steen & Hamilton LLP


One
Liberty Plaza


New
York, NY 10006


Phone:
(212) 225-2000


Fax:
(212) 225-3999


Attention:
Neil Q. Whoriskey and Pierre-Yves Chabert


 


All
such notices, requests, consents and other communications shall be deemed to
have been given or made if and when delivered personally or by overnight
courier to the Parties at the above addresses or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
above (or at such other address or telecopy number for a Party as shall be 


 


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specified by like
notice).  Any notice delivered by any
Party hereto to any other Party hereto shall also be delivered to each other
Party hereto simultaneously with delivery to the first Party receiving such
notice.


 


Section 3.4                                   Counterparts.  This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.


 


Section 3.5                                   Headings.  The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.


 


Section 3.6                                   Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.


 


Section 3.7                                   Dispute
Resolution.  In the
event of any dispute arising out of or in connection with this Agreement,
including any dispute regarding its existence, breach, termination or validity,
each Party shall have the right to have recourse to and shall be bound by the
pre-arbitral referee procedure of the International Chamber of Commerce in
accordance with its Rules for a Pre-Arbitral Referee Procedure.  All disputes arising out of or in connection
with this Agreement (including as to existence, breach, termination and
validity) shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce (the “Rules”) by three arbitrators appointed in accordance with said
Rules.  The place of the pre-arbitral
referee procedure and of the arbitration procedure shall be New York, New York,
United States of America.  The
proceedings before the arbitral tribunal (including with respect to the
Pre-Arbitral Referee Procedure) shall be governed by the Rules.  The rules of law to be applied by the
arbitral tribunal to the merits of the dispute shall be the rules of law
of the State of New York.  The language
of the arbitration shall be English. 
Evidence shall be provided in English and pleadings shall be done in
English.   The arbitral tribunal shall render its decision within six
months from the date of signature of the terms of reference.  Any decision or award of the arbitral
tribunal shall be final and binding upon the parties to the arbitration
proceeding.  Without limiting the authority conferred on the arbitral
tribunal by this Agreement and the Rules, the arbitral tribunal shall have the
authority to award specific performance. 
The Parties waive to the extent permitted by applicable law any rights
to appeal or to review of such award by any court or tribunal.  The
Parties hereby submit to the exclusive jurisdiction of the federal and state
courts of the State of New York sitting in the Borough of Manhattan, and agree
not to raise any objection to venue in such court, with respect to the
enforcement of this Section 2.7 and any application to confirm, vacate or
modify the decision or award of the arbitration tribunal.  The Parties agree that, once confirmed, the
arbitral award may be enforced against the parties to the arbitration
proceeding or their assets wherever they may be found.


 


Section 3.8                                   Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any Party.  Upon such
determination that any term or other provision is 


 


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invalid, illegal or incapable of being enforced, the Parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in an acceptable manner
to the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.


 


Section 3.9                                   Amendment
and Waivers.  No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Parties. 
Any Party may (i) waive any inaccuracies in the representations and
warranties of another Party contained herein or in any document delivered by
another Party pursuant hereto or (ii) waive compliance with any of the
agreements of another Party contained herein. 
Any such waiver shall be valid only if set forth in an instrument in
writing signed by the Parties to be bound thereby.  Any such waiver shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement. The
failure of any Party hereto to assert any of its rights hereunder shall not
constitute a waiver of any of such rights.


 


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IN
WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the
date first above written.


 


 


	
   

  	
  CONSTELLATION
  ENERGY GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Berardesco

  
	
   

  	
   

  	
  Name: Charles A. Berardesco

  
	
   

  	
   

  	
  Title: Senior Vice President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E.D.F.
  INTERNATIONAL S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Wolfram

  
	
   

  	
   

  	
  Name: Steven Wolfram

  
	
   

  	
   

  	
  Title: General Counsel — Development, EDF S.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EDF
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jean-Pierre Benque

  
	
   

  	
   

  	
  Name: Jean-Pierre Benque

  
	
   

  	
   

  	
  Title: President

  



 


Signature
Page to Termination Agreement relating to


Amended
and Restated Investor Agreement