exv10w29



 



Exhibit 10.29


SEPARATION AGREEMENT


     This Separation Agreement (this “Agreement”) is made and entered into by
and between STEPHEN A. HERMAN and PG&E NATIONAL ENERGY GROUP COMPANY (the
“Company”) (collectively the “Parties”) and sets forth the terms and conditions
of Mr. Herman’s separation from employment with the Company. The “Effective
Date” of this Agreement is defined in paragraph 17(a).


     1.     Separation. Mr. Herman’s separation from employment with the Company
and with any and all subsidiary, parent and affiliate companies of the Company,
will be effective on the Effective Date. Mr. Herman’s resignation from all of
his positions as an officer and/or director of the Company, and subsidiary,
parent and affiliate companies of the Company was effective close of business
December 1, 2002 and from any other position(s) held with the Company, the
Company’s parent, or any Company affiliate or subsidiary. Regardless of
whether (i) Mr. Herman accepts this Agreement, Mr. Herman will be paid all
salary or wages and vacation accrued, unpaid and owed to Mr. Herman as of the
Effective Date, (ii) an amount equal to the salary or wages and vacation that
would have been paid or accrued had he remained employed from the Effective
Date through to the end of the month of December, and (iii) Mr. Herman will
receive notice of the right to continue Mr. Herman’s existing health-insurance
coverage pursuant to COBRA.


     2.     Separation benefits. In consideration of Mr. Herman’s acceptance of
this Agreement, Mr. Herman will be provided the following separation benefits:


          a. Lump-sum payment. On the Effective Date, the Company will make a
lump-sum payment to Mr. Herman in the gross amount of Seven Hundred Six
Thousand, Eight Hundred Seventy-Five Dollars ($706,875.00), less applicable tax
withholdings and deductions.



          b. NEG Management Retention Program. On the Effective Date, the Company
will pay to Mr. Herman the full retention payment that he is entitled to under
the terms of such Program.



          c. Long-Term Incentive Program. Upon the Effective Date, all unvested
performance unit grants, stock option grants, and special incentive stock
ownership premiums provided to Mr. Herman under PG&E Corporation’s Performance
Unit Plan, Stock Option Plan, and Executive Stock Ownership Program will
continue to vest, terminate, or be canceled as provided under the terms of
their respective plans or program, as modified by the PG&E Corporation Officer
Severance Policy in effect at the time this Agreement is signed by Mr. Herman.
The payment, exercise, and withdrawal of Mr. Herman’s vested performance units,
stock option grants, and stock ownership premiums will be as provided under the
terms of their respective plans or program, provided that the performance units
and stock ownership premiums granted to Mr. Herman which have not yet vested as
of the Effective Date will continue to vest as though Mr. Herman remained
employed with the Company for 18 months after the Effective Date.



 






 





          d. STIP payment. In the event that employees in Mr. Herman’s funding unit
or subsidiary are eligible for a payment under the Company’s Short-Term
Incentive Plan (“STIP”) for the year in which the Effective Date occurs, the
Company will make the STIP payment that Mr. Herman would have received,
pro-rated to reflect the number of months from the beginning of the year to the
Effective Date. The STIP payment, if any, will be made at such time as STIP
payments are made to employees in Mr. Herman’s funding unit or subsidiary. The
STIP Plan Administrator will have the sole discretion to determine the amount
of STIP payment, consistent with the program guidelines for the year in which
the Effective Date occurs.



          e. Senior Executive Retention Program. Mr. Herman shall receive payments
under the Senior Executive Retention Program equal to those he would have
received pursuant to his February 21, 2002 grant under the Program had he
remained employed through each payment date. Mr. Herman shall receive any such
payments at the time other Program participants receive their payments.



          f. Counseling services. For a maximum of one year following the Effective
Date, the Company will provide Mr. Herman with executive career counseling
and/or placement services from the firm of DeRecat & Associates or, at Mr.
Herman’s selection, another firm providing such services under contract with
the Company. If Mr. Herman becomes employed during that one-year period, the
Company’s obligation to provide the service specified in this paragraph will
terminate at the time the employment commences.



          g. Payment of COBRA premiums. If Mr. Herman elects and is otherwise
eligible to continue Mr. Herman’s existing health-insurance coverage pursuant
to COBRA, the Company will pay Mr. Herman’s monthly COBRA premiums for the
18-month period commencing the first full month after the Effective Date and
until and unless Mr. Herman becomes covered under the health-insurance plan of
another employer. Mr. Herman will promptly notify the Company’s Senior Human
Resources Officer if Mr. Herman becomes employed in any capacity within that
period.



     3.     Defense and indemnification in third-party claims. The Company and/or
its parent, affiliate, or subsidiary will provide Mr. Herman with legal
representation and indemnification protection in any legal proceeding in which
Mr. Herman is a party or is threatened to be made a party by reason of the fact
that Mr. Herman 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 Corporation dated December 18, 1996.


     4.     Cooperation with legal proceedings. Mr. Herman 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 Mr. Herman in
complying with this paragraph.


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     5.     Release of claims and covenant not to sue.


          a. Except for the obligations of this Agreement, in consideration of the
separation benefits and other benefits the Company is providing under this
Agreement, Mr. Herman, on behalf of Mr. Herman and Mr. Herman’s
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
Mr. Herman 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 Mr. Herman’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 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 Code of Maryland, Labor and
Employment, 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. Mr. Herman acknowledges that there may exist facts or claims in
addition to or different from those which are now known or believed by Mr.
Herman 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.



          c. With respect to the claims released in the preceding paragraphs, Mr.
Herman 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. Mr. Herman 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 Mr. Herman from accepting an offer of
future employment from the Company, its parent or any of its subsidiaries or
affiliates.


     7.     Non-disclosure.


          a. Mr. Herman 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
Company’s Chief Legal Officer unless otherwise required or permitted by law.
Notwithstanding the preceding sentence, Mr. Herman may disclose the terms and
conditions of this Agreement to Mr. Herman’s 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 Mr. Herman, provided that the
person first agrees to keep

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the information confidential and not to make any disclosure of the terms and
conditions of this Agreement unless otherwise required or permitted by law.


          b. Mr. Herman will not use, disclose, publicize, or circulate any
confidential or proprietary information concerning the Company or its
subsidiaries or affiliates, which has come to Mr. Herman’s attention during Mr.
Herman’s employment with the Company, unless doing so is expressly authorized
in writing by the Company’s Chief Legal Officer, or is otherwise required or
permitted by law. Before making any legally-required or permitted disclosure,
Mr. Herman will give the Company notice at least ten (10) business days in
advance.



     8.     No competition or solicitation.


          For a period of one year after the Effective Date, Mr. Herman 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:




	 	(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 Mr. Herman
acquired information as a result of any solicitation efforts
by the Company or its parent, affiliates or subsidiaries, or
by the prospective customer, during Mr. Herman’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 Mr. Herman
acquired information as a result of any solicitation efforts
by the Company or its parent, affiliates or subsidiaries, or
by the prospective vendor, during Mr. Herman’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.



     9.     Material breach by Employee. In the event that Mr. Herman breaches any
material provision of this Agreement, including but not necessarily limited to
paragraphs 4, 5, 6, 7, and/or 8, the Company will have no further obligation to
pay or provide to Mr. Herman any

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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 Mr.
Herman under this Agreement and to recalculate any future pension benefit
entitlement without the additional credited service and/or age Mr. Herman
received or would have received under this Agreement. Despite any breach by
Mr. Herman, Mr. Herman’s other duties and obligations under this Agreement,
including Mr. Herman’s waivers and releases, will remain in full force and
effect. In the event of a breach or threatened breach by Mr. Herman of any of
the provisions in paragraphs 4, 5, 6, 7, and/or 8, the Company will, in
addition to any other remedies provided in this Agreement, be entitled to
equitable and/or injunctive relief and, 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 Mr. Herman of Mr. Herman’s obligations under paragraphs 4, 5, 6, 7, and/or
8. Pursuant to paragraph 14, and except as otherwise prohibited or limited by
law, Mr. Herman 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.


     10.     Material breach by the Company. Mr. Herman 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 Mr. Herman under this
Agreement, Mr. Herman 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 14, and except as prohibited or limited by law, the Company will
also be liable for any litigation costs and expenses that Mr. Herman incurs in
successfully seeking enforcement of Mr. Herman’s 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.


     11.     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.


     12.     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 Mr.
Herman 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. Parol 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.


     13.     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,

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should paragraphs 4, 5, 6, 7, and/or 8 be held
invalid, void or unenforceable, either jointly or separately as a result of any
action initiated by Mr. Herman or his representative, the Company
will be entitled to rescind the Agreement and/or recover from Mr. Herman
any payments made and benefits provided to Mr. Herman under this Agreement.


     14.     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, Mr. Herman’s
employment with the Company (or with the employing subsidiary), the separation
of Mr. Herman from that employment and from Mr. Herman’s positions as an
officer and/or director of the Company or any subsidiary or affiliate, or any
claims 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 Mr. Herman 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 Bethesda, Maryland. 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 Maryland
state and federal courts having within their jurisdiction the location of the
Company’s principal place of business in Maryland at the time of such action,
and both Parties hereby consent to the jurisdiction of such courts for any such
action.


     15.     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 Maryland, without regard to their conflicts of laws
provisions.


     16.     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.


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     17.     Acceptance of Agreement.


          a. Mr. Herman was provided up to 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. After reviewing an earlier draft of the
Agreement, Mr. Herman requested certain modifications to the Agreement which
were accepted and are reflected in this Agreement. Although based on those
modifications, Mr. Herman may have been entitled to another 21-day period in
which to consider and accept the terms of this Agreement, Mr. Herman elected to
waive any applicable new 21-day period. After signing the Agreement, Mr.
Herman will have an additional seven (7) days in which to revoke in writing
acceptance of this Agreement. To revoke, Mr. Herman will submit a signed
statement to that effect to the Company’s Senior Human Resources Officer before
the close of business on the seventh day. If Mr. Herman does not submit a
timely revocation, the Effective Date of this Agreement will be the eighth day
after Mr. Herman signs it, at which time the Company shall wire transfer the
payments set forth in paragraphs 2 (a) and 2 (b), above.



          b. Mr. Herman acknowledges reading and understanding the contents of this
Agreement, being afforded the opportunity to review carefully this Agreement
with an attorney of Mr. Herman’s 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:	        
                    
                     
                  
                    	 	 	PG&E National Energy Group Company
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	        
                    
                     
                  
                  
                  
                    
	 	 	 	 	 	 	 	 	 
	 	 	Dated:	        
                    
                     
                  
                    	     
	 	STEPHEN A. HERMAN
	 	 	 	 	 	 	        
                    
                     
                  
                  
                  
                  
                    
	 	 	 	 	 	 	 	 	     




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