NANCY McFadden
EX-10.18
Exhibit 10.18
THE
TERMS AND CONDITIONS OF THIS AGREEMENT ARE PURSUANT TO THE PG&E
COMPANY OFFICER SEVERANCE PLAN, ADOPTED BY THE NOMINATING, COMPENSATION,
AND GOVERNANCE COMMITTEE OF PG&E COMPANY, AND ARE
NOT SUBJECT TO NEGOTIATION.
SEPARATION AGREEMENT
This
Separation Agreement (“Agreement”) is made and entered into by and
between Nancy McFadden and Pacific Gas
and Electric Company (the “Company” or “PG&E”) (collectively the
“Parties”) and sets forth the terms and conditions of Ms. McFadden’s
separation from employment with the Company. The “Effective
Date” of this Agreement is defined in paragraph 18(a).
1. Resignation.
Effective the close of business on December 31, 2010 (for
purposes of this Agreement, the “Date of Resignation”), Ms. McFadden
will resign from her position as Senior Vice President and Special
Advisor of Pacific Gas and Electric Company. Ms. McFadden shall have
until February 13,
2011, to accept this Agreement by submitting a signed copy to the
Company. Regardless of whether Ms. McFadden accepts this Agreement, on
the Date of Resignation, she will be paid all salary or wages and
vacation accrued, unpaid and owed to her
as of that date, she will remain entitled to any other benefits to which
she is otherwise entitled under the provisions of the Company’s plans
and programs, and she will receive notice of the right to continue her
existing health-insurance
coverage pursuant to COBRA.
The benefits set forth in paragraph 2 below are conditioned upon Ms. McFadden’s
acceptance of this Agreement.
2. Separation benefits.
Even though
Ms. McFadden is not otherwise entitled to them, in consideration of her
acceptance of this Agreement, the Company will provide to Ms. McFadden
the following separation benefits:
a. Severance payment.
Under the terms of the PG&E Company Officer Severance
Policy, Ms. McFadden’s severance payment amount is $1,040,400. (ONE
MILLION FORTY THOUSAND FOUR HUNDRED DOLLARS). On the Effective Date of
this Agreement as set forth in paragraph 18(a) below, the Company will
make the severance payment,
less applicable withholdings and deductions to Ms. McFadden.
b. Stock.
Upon the Date of Resignation, but conditioned on the occurrence of the
Effective Date of this Agreement as set forth in paragraph 18(a) below,
all unvested restricted stock grants, and performance share grants
provided to Ms. McFadden under PG&E Company’s 2006 Long-Term
Incentive Plan shall continue to
vest, terminate, or be canceled as provided under the terms of their
respective plans or program, as modified by the PG&E Company Officer
Severance Policy in effect at the time this Agreement is signed by
Ms. McFadden. The payment and
withdrawal of Ms. McFadden’s restricted stock grants, restricted stock
unit grants, and performance share grants shall be as provided under the
terms of their respective plans or program, as modified by the PG&E
Company Officer
Severance Policy in effect at the time this Agreement is signed by
Ms. McFadden.
-1-
c. Career transition services.
For a
maximum period of one year following the Date of Resignation, the
Company will provide Ms. McFadden with executive career transition
services from the firm of Torchiana, Mastrov & Sapiro, Inc., in
accordance with the contract between
the Company and Torchiana, Mastrov & Sapiro, Inc. Ms. McFadden’s
entitlement to services under this Agreement will terminate when she
becomes employed, either by another employer or through self-employment
other than consulting
with the Company. If Ms. McFadden becomes employed, she will promptly
notify PG&E Company’s Human Resources Officer to enable the Company
to end the provision of services to her by Torchiana, Mastrov &
Sapiro, Inc.
d. Payment of COBRA premiums. If
Ms. McFadden elects and is otherwise
eligible to continue her existing health-insurance coverage pursuant to
COBRA, the Company will pay her monthly COBRA premiums for the
eighteen-month period commencing the first full month after the Date of
Resignation and until and unless
Ms. McFadden becomes covered under the health-insurance plan of another
employer or through self-employment. Ms. McFadden will promptly notify
the PG&E Company’s Human Resources Officer if she becomes employed
within that period.
3. Defense and indemnification in third-party claims. The
Company
and/or its parent, affiliate, or subsidiary will provide Ms. McFadden
with legal representation and indemnification protection in any legal
proceeding in which she is a party or is threatened to be made a party
by reason of the fact that she is
or was an employee or officer of the Company and/or its parent,
affiliate or subsidiary, in accordance with the terms of the resolution
of the Board of Directors of PG&E Company dated December 18, 1996.
4. Cooperation with legal proceedings.
Ms. McFadden will, upon reasonable
notice, furnish information and proper assistance to the Company and/or
its parent, affiliate or subsidiary (including truthful testimony and
document production) as may reasonably be required by them or any of
them in connection with any legal,
administrative or regulatory proceeding in which they or any of them is,
or may become, a party, or in connection with any filing or similar
obligation imposed by any taxing, administrative or regulatory authority
having jurisdiction, provided,
however, that the Company and/or its parent, affiliate or subsidiary
will pay all reasonable expenses incurred by Ms. McFadden in complying
with this paragraph.
5. Release of claims and covenant not to sue.
a. In
consideration of the separation benefits and other benefits the Company
is providing under this Agreement, Ms. McFadden, on behalf of herself
and
her representatives, agents, heirs and assigns, waives, releases,
discharges and promises never to assert any and all claims, liabilities
or obligations of every kind and nature, whether known or unknown,
suspected or unsuspected that she ever had,
now has or might have as of the Effective Date against the Company or
its predecessors, parent, affiliates, subsidiaries, shareholders,
owners, directors, officers, employees, agents, attorneys, successors,
or assigns. These released claims include,
without limitation, any claims arising from or related to Ms. McFadden’s
employment with the Company, its parent or any of its affiliates and
subsidiaries, and the termination of that employment. These released
claims also specifically
include, but are not limited, any claims
-2-
arising under any federal, state and local statutory or common law, such
as (as amended and as applicable) Title VII of the Civil Rights Act,
the Age Discrimination in Employment Act, the
Americans With Disabilities Act, the Employee Retirement Income Security
Act, the California Fair Employment and Housing Act, the California
Labor Code, any other federal, state or local law governing the terms
and conditions of employment or the
termination of employment, and the law of contract and tort; and any
claim for attorneys’ fees.
b. Ms. McFadden
acknowledges that there may exist facts or claims in addition to or
different from those which are now known or believed by her to exist.
Nonetheless, this Agreement extends to all claims of every nature and
kind whatsoever, whether known or unknown, suspected or unsuspected,
past or present, and Ms. McFadden
specifically waives all rights under Section 1542 of the California
Civil Code which provides that:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN TO HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
c. With
respect to the claims
released in the preceding paragraphs, Ms. McFadden will not initiate or
maintain any legal or administrative action or proceeding of any kind
against the Company or its predecessors, parent, affiliates,
subsidiaries, shareholders, owners,
directors, officers, employees, agents, attorneys, successors, or
assigns, for the purpose of obtaining any personal relief, nor (except
as otherwise required or permitted by law) assist or participate in any
such proceedings, including any
proceedings brought by any third parties.
6. Re-employment.
Ms. McFadden will not seek any future re-employment with the Company,
its parent or any of its subsidiaries or affiliates. This paragraph will
not, however, preclude Ms. McFadden from accepting an offer of future
employment from the
Company, its parent or any of its subsidiaries or affiliates.
7. Non-disclosure.
a. Ms. McFadden
will not disclose, publicize, or circulate to anyone in whole or in
part, any information concerning the existence, terms, and/or conditions
of this Agreement without the express written consent of the PG&E
Company’s Chief Legal Officer unless otherwise required or permitted by
law. Notwithstanding the
preceding sentence, Ms. McFadden may disclose the terms and conditions
of this Agreement to her family members, and any attorneys or tax
advisors, if any, to whom there is a bona fide need for
disclosure in order for them to render
professional services to him, provided that the person first agrees to
keep the information confidential and not to make any disclosure of the
terms and conditions of this Agreement unless otherwise required or
permitted by law.
-3-
b. Ms. McFadden
will not use, disclose,
publicize, or circulate any confidential or proprietary information
concerning the Company or its subsidiaries or affiliates, which has come
to her attention during her employment with the Company, unless doing
so is expressly authorized in writing
by the PG&E Company’s Chief Legal Officer, or is otherwise required
or permitted by law. Before making any legally-required or permitted
disclosure, Ms. McFadden will give the Company notice at least ten
(10) business days in
advance.
8. Non-Disparagement. Ms. McFadden
agrees to refrain from
performing any act, engaging in any conduct or course of action or
making or publishing any statements, claims, allegations or assertions,
which have or may reasonably have the effect of demeaning the name or
business reputation of the Company, or
any of its parent companies, subsidiaries or affiliates, or any of their
respective employees, officers, directors, agents or advisors in their
capacities as such or which adversely affects (or may reasonably be
expected adversely to affect) the
best interests (economic or otherwise) of any of them. The Company
agrees to refrain from performing any act, engaging in any conduct or
course of action or making or publishing any statements, claims,
allegations or assertions in any print,
electronic or television media or in investor conference calls or
webcasts, which have or may reasonably have the effect of demeaning the
name or business reputation of Ms. McFadden. The Company further agrees
to instruct its officers, (in each
case, while such person remains an officer of the Company) to comply
with the Company’s obligations under this paragraph. In the event the
Company’s Chief Legal Officer or Head of Human Resources acquires actual
knowledge that a violation
of the Company’s obligations under this paragraph 8 has occurred, the
Company shall take reasonable action to reprimand and further discourage
such behavior in violation of this paragraph 8. Each Party agrees that
nothing in this paragraph 8
shall preclude the other Party from fulfilling any duty or obligation
that she or it may have at law, from responding to any subpoena or
official inquiry from any court or government agency, including
providing truthful testimony, documents
subpoenaed or requested or otherwise cooperating in good faith with any
proceeding or investigation, or from taking any reasonable actions to
enforce such party’s rights under this Agreement in accordance with the
dispute resolution provisions
specified in paragraph 15 hereof. Each Party shall continue to comply
with its or her obligations under this Paragraph 8 regardless of any
alleged breach by the other Party of its or her agreements contained in
this paragraph 8 unless and until
there has been a final determination by a court or an arbitration panel
that the other Party has breached its or her obligations under this
paragraph.
9. No unfair competition.
a. Ms. McFadden will not engage in any unfair competition against the Company, its
parent or any of its subsidiaries or affiliates.
b. For
a period of one year
after the Effective Date, Ms. McFadden will not, directly or indirectly,
solicit or contact for the purpose of diverting or taking away or
attempt to solicit or contact for the purpose of diverting or taking
away:
-4-
(1) | any existing customer of the Company or its parent, affiliates or subsidiaries; |
(2) | any prospective customer of the Company or its parent, affiliates or subsidiaries about whom Ms. McFadden acquired information as a result of any solicitation efforts by the Company or its parent, affiliates or subsidiaries, or by the prospective customer, during Ms. McFadden’s employment with the Company; |
(3) | any existing vendor of the Company or its parent, affiliates or subsidiaries; |
(4) | any prospective vendor of the Company or its parent, affiliates or subsidiaries, about whom Ms. McFadden acquired information as a result of any solicitation efforts by the Company or its parent, affiliates or subsidiaries, or by the prospective vendor, during Ms. McFadden’s employment with the Company; |
(5) | any existing employee, agent or consultant of the Company or its parent, affiliates or subsidiaries, to terminate or otherwise alter the person’s or entity’s employment, agency or consultant relationship with the Company or its parent, affiliates or subsidiaries; or |
(6) | any existing employee, agent or consultant of the Company or its parent, affiliates or subsidiaries, to work in any capacity for or on behalf of any person, company or other business enterprise that is in competition with the Company or its parent, affiliates or subsidiaries. |
10. Material breach by Employee.
In the event that Ms. McFadden breaches any
material provision of this Agreement, including but not necessarily
limited to paragraphs 4, 5, 6, 7, 8 and/or 9, the Company will have no
further obligation to pay or provide to her any unpaid amounts or
benefits specified in this Agreement and
will be entitled to immediate return of any and all amounts or benefits
previously paid or provided to her under this Agreement and to
recalculate any future pension benefit entitlement without the
additional credited age she received or would have
received under this Agreement. Despite any breach by Ms. McFadden, her
other duties and obligations under this Agreement, including her waivers
and releases, will remain in full force and effect. In the event of a
breach or threatened breach by
Ms. McFadden of any of the provisions in paragraphs 4, 5, 6, 7, 8,
and/or 9, the Company will, in addition to any other remedies provided
in this Agreement, be entitled to equitable and/or injunctive relief
and,
-5-
because the damages for such a breach or threatened breach will be
difficult to determine and will not provide a full and adequate remedy,
the Company will also be entitled to specific
performance by Ms. McFadden of her obligations under paragraphs 4, 5, 6,
7, 8, and/or 9. Pursuant to paragraph 15, and except as otherwise
prohibited or limited by law, Ms. McFadden will also be liable for any
litigation costs and expenses
that the Company incurs in successfully seeking enforcement of its
rights under this Agreement, including reasonable attorney’s fees.
11. Material breach by the Company.
Ms. McFadden will be entitled to recover actual damages in the event of
any material breach of this Agreement
by the Company, including any unexcused late or non-payment of any
amounts owed under this Agreement, or any unexcused failure to provide
any other benefits specified in this Agreement. In the event of a breach
or threatened breach by the Company of
any of its material obligations to him under this Agreement,
Ms. McFadden will be entitled to seek, in addition to any other remedies
provided in this Agreement, specific performance of the Company’s
obligations and any other applicable
equitable or injunctive relief. Pursuant to paragraph 15, and except as
prohibited or limited by law, the Company will also be liable for any
litigation costs and expenses that Ms. McFadden incurs in successfully
seeking enforcement of her
rights under this Agreement, including reasonable attorney’s fees.
Despite any breach by the Company, its other duties and obligations
under this Agreement will remain in full force and effect.
12. No admission of liability. This Agreement is not, and will not be considered,
an admission of liability or of a violation of any applicable contract, law, rule, regulation, or order of any kind.
13. Complete agreement.
This Agreement sets forth the entire agreement between the
Parties pertaining to the subject matter of this Agreement and fully
supersedes any prior or contemporaneous negotiations, representations,
agreements, or understandings between the Parties with respect to any
such matters, whether written or oral
(including any that would have provided Ms. McFadden with any different
severance arrangements). The Parties acknowledge that they have not
relied on any promise, representation or warranty, express or implied,
not contained in this Agreement.
Parole evidence will be inadmissible to show agreement by and among the
Parties to any term or condition contrary to or in addition to the terms
and conditions contained in this Agreement.
14. Severability.
If any provision of this Agreement is determined
to be invalid, void, or unenforceable, the remaining provisions will
remain in full force and effect except that, should paragraphs 4, 5, 6,
7, 8 and/or 9 be held invalid, void or unenforceable, either jointly or
separately, the Company will be
entitled to rescind the Agreement and/or recover from Ms. McFadden any
payments made and benefits provided to her under this Agreement.
15. Arbitration.
With the exception of any request for specific performance, injunctive
or other equitable relief, any dispute or controversy of any
kind arising out of or related to this Agreement, Ms. McFadden’s
employment with the Company (or with the employing subsidiary), the
separation of Ms. McFadden from that employment and from her positions
as an officer and/or director
of the Company or any subsidiary or affiliate, or any claims
-6-
for benefits, will be resolved exclusively by final and binding
arbitration using a three-member arbitration panel in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association currently in effect, provided, however, that in rendering
their award, the arbitrators will be limited to accepting the position
of Ms. McFadden or the Company. The only claims not covered by this
paragraph are any non-waivable
claims for benefits under workers’ compensation or unemployment
insurance laws, which will be resolved under those laws. Any arbitration
pursuant to this paragraph will take place in San Francisco,
California. The Parties may be represented by
legal counsel at the arbitration but must bear their own fees for such
representation in the first instance. The prevailing party in any
dispute or controversy covered by this paragraph, or with respect to any
request for specific performance,
injunctive or other equitable relief, will be entitled to recover, in
addition to any other available remedies specified in this Agreement,
all litigation expenses and costs, including any arbitrator,
administrative or filing fees and reasonable
attorneys’ fees, except as prohibited or limited by law. The Parties
specifically waive any right to a jury trial on any dispute or
controversy covered by this paragraph. Judgment may be entered on the
arbitrators’ award in any court of
competent jurisdiction. Subject to the arbitration provisions of this
paragraph, the sole jurisdiction and venue for any action related to the
subject matter of this Agreement will be the California state and
federal courts having within their
jurisdiction the location of the Company’s principal place of business
in California at the time of such action, and both Parties thereby
consent to the jurisdiction of such courts for any such action.
16. Governing law.
This Agreement will be governed by and construed under the laws
of the United States and, to the extent not preempted by such laws, by
the laws of the State of California, without regard to their conflicts
of laws provisions.
17. No waiver.
The failure of either Party to exercise or enforce,
at any time, or for any period of time, any of the provisions of this
Agreement will not be construed as a waiver of that provision, or any
portion of that provision, and will in no way affect that party’s right
to exercise or enforce such
provisions. No waiver or default of any provision of this Agreement will
be deemed to be a waiver of any succeeding breach of the same or any
other provisions of this Agreement.
18. Acceptance of Agreement.
a. Ms. McFadden
was provided over 21 days to consider and accept the terms of this
Agreement and was advised to consult with an attorney about the
Agreement before signing it. The provisions of the Agreement are,
however, not subject to negotiation. After signing the Agreement,
Ms. McFadden will have an additional seven
(7) days in which to revoke in writing acceptance of this Agreement. To
revoke, Ms. McFadden will submit a signed statement to that effect to
PG&E Company’s Chief Legal Officer before the close of business on
the seventh day. If
Ms. McFadden does not submit a timely revocation, the Effective Date of
this Agreement will be February 23.
-7-
b. Ms. McFadden
acknowledges reading
and understanding the contents of this Agreement, being afforded the
opportunity to review carefully this Agreement with an attorney of her
choice, not relying on any oral or written representation not contained
in this Agreement, signing this
Agreement knowingly and voluntarily, and, after the Effective Date of
this Agreement, being bound by all of its provisions.
Dated: __________________. | PACIFIC GAS AND ELECTRIC COMPANY | |||
By: | ||||
Dated: __________________. | NANCY MCFADDEN | |||
0 comments:
Post a Comment