Exhibit 10
AGREEMENT AND RELEASE
This Agreement and Release is made and entered into between
JERRY R. McLEOD (Mr. McLeod) and the PACIFIC GAS AND ELECTRIC
COMPANY (PG&E). Mr. McLeod and PG&E (collectively referred to as
"the parties"), in their wish to compromise, resolve, settle, and
terminate any dispute or claim between them with respect to
Mr. McLeod's employment with PG&E, his position as an officer of
PG&E, and his positions as officer and director of any of PG&E's
subsidiaries and affiliated companies; and his resignation from
those positions, have agreed as follows:
1. Effective close of business, June 30, 1994, Mr. McLeod shall
voluntarily resign from his employment with PG&E; his
position as Executive Vice President of PG&E; and his
officer and director positions with all of PG&E's
subsidiaries and affiliated companies.
2. PG&E shall provide Mr. McLeod executive outplacement
services through one of the firms providing such services
under contract with PG&E. To access outplacement services,
Mr. McLeod shall contact PG&E's Vice President - Human
Resources. Mr. McLeod agrees that he must access the
services provided him under this paragraph within one year
from the effective date of this Agreement and
Release and that his failure to do so within the one-year period
terminates PG&E's obligation to provide the specified
services.
3. PG&E shall pay Mr. McLeod the amount of One Million Ninety-
Seven Thousand Dollars ($1,097,000.00), less applicable
deductions, in the following manner:
a. in three installments; the first to be made on July 8,
1994, the second to be made on January 13, 1995, and
the third to be made on January 12, 1996;
b. the amount of each of the three installments shall be
designated in writing by Mr. McLeod on or before the
effective date of this Agreement and Release; and
c. until paid, the amount PG&E owes to Mr. McLeod under this
paragraph shall accrue interest at the Moody's AA
Utility Bond rate applicable to PG&E Officers Deferred
Compensation Program, compounded on a quarterly basis.
The payment which PG&E shall make to Mr. McLeod under this
Agreement and Release shall not be considered covered
compensation under any compensation, incentive pay,
retirement, or other benefit plan in which Mr. McLeod is a
participant.
4. All performance unit and stock option grants which
Mr. McLeod has received under PG&E's Performance Unit Plan
and PG&E's Stock Option Plan shall be governed by, and
exercised in accordance with, the general provisions of the
respective plans.
5. The parties understand and agree that Mr. McLeod shall not
participate in PG&E's 1994 Performance Incentive Plan.
6. Mr. McLeod shall be entitled to an additional 17 years and 6
months of credited service for pension benefits, provided,
however, that any increased pension benefit entitlement
attributable to said 17 years and 6 months shall be paid and
payable only from the Supplemental Executive Retirement Plan.
7. a. PG&E shall continue to provide Mr. McLeod the legal
services and indemnification protection to which he is
currently entitled as an officer on all pending legal
proceedings in which he is a party and all future legal
proceedings in which he is sued for conduct in which he
engaged as a PG&E officer under the same terms and
conditions pertaining to legal services and indemnification
protection provided to PG&E officers.
b. Mr. McLeod shall make himself reasonably available to
assist PG&E on any pending or future legal proceeding
involving issues on which he worked or acquired relevant
information as a PG&E officer.
8. This Agreement and Release shall not affect, and the payment
and other consideration due Mr. McLeod under this Agreement
and Release are in addition to any compensation or benefits
to which Mr. McLeod may be otherwise entitled under PG&E's
employee programs, including vacation, perquisites, deferred
compensation, retirement, health care insurance, and post-
retirement life insurance plans.
9. In consideration for the benefits which PG&E shall provide
to Mr. McLeod under this Agreement and Release and which
exceed Mr. McLeod's entitlement under PG&E's employee
benefit programs, Mr. McLeod, in behalf of himself, his
heirs, estate, executors, administrators, successors, and
assigns, releases and agrees to hold harmless PG&E, its
officers, directors, attorneys, agents, employees, assigns,
subsidiaries, affiliated companies, and successors, from all
actions, causes of action, claims, disputes, judgments,
obligations, damages, liabilities of whatsoever kind and
character, relating to Mr. McLeod's employment with PG&E,
including his employment severance and any action which led
to the severance. In particular, Mr. McLeod understands and
agrees that the actions, causes of action, claims, disputes,
judgments, obligations, damages, and liabilities covered by
the preceding sentence include, but are not limited to,
those arising under any federal, state, or local law,
regulation, or order relating to civil rights (including
employment discrimination on the basis of race, color,
religion, age, sex, national origin, ancestry, physical
handicap, medical condition, veteran status, marital status,
and sexual orientation), wage and hour, labor, contract, or
tort.
10. Mr. McLeod understands and agrees that this Agreement and
Release extends to all claims of every nature and kind
whatsoever, known or unknown, suspected or unsuspected, past
or present, and all rights under Section 1542 of the
California Civil Code are hereby expressly waived. Such
section reads as follows:
A general release does not extend to claims
which the creditor does not know or suspect
to exist in his favor at the time of
executing the release, which if known to him
must have materially affected his settlement
with the debtor.
11. Mr. McLeod agrees not to sue PG&E or its subsidiaries or
affiliated companies, or to participate or aid in any way in
any suit or proceeding (or to execute, seek to impose,
collect or recover upon, or otherwise enforce or accept by
judgment, decision, award, warrant, or attachment) upon any
claim released by him under paragraphs 9 and 10, unless
compelled by law or by an order of a court of competent
jurisdiction.
12. Mr. McLeod agrees not to disclose, publicize, or circulate
information concerning the terms and conditions of this
Agreement and Release unless required by law, by court or
government agency order, or by his bona fide need to obtain
legal and/or financial consulting services. Notwithstanding
the preceding sentence, Mr. McLeod may disclose the terms and
conditions of this Agreement and Release to his immediate family
members, provided that Mr. McLeod instructs each affected family
member that he or she may not make any other disclosure of the
terms and conditions of this Agreement and Release. Mr. McLeod
further agrees that his material violation of this paragraph
shall constitute a material breach of this Agreement and Release.
13. Mr. McLeod agrees not to use, disclose, publicize, or circulate
after his June 30, 1994, resignation, any confidential or proprietary
information concerning PG&E or its subsidiaries or affiliated companies,
which has come to his attention during his employment with PG&E, unless
authorized in writing by PG&E, or unless required by law. Before making
any legally-required disclosure, Mr. McLeod shall give PG&E as much
advance notice as possible. Mr. McLeod further agrees that
his material violation of this paragraph shall constitute a
material breach of this Agreement and Release.
14. Mr. McLeod agrees not to engage in unfair competition with PG&E or
its subsidiaries or affiliated companies. For purposes of this Agreement
and Release, unfair competition shall include, but not be limited to, all
judicially recognized post employment restrictions consistent with section
16600 of the Business and Professions Code. In particular, Mr. McLeod
acknowledges that his use, disclosure, publication, or circulation of
confidential or propriety information concerning PG&E, or its subsidiaries
or affiliated companies, either directly or indirectly, in self-employment,
or in employment or consulting with any entity, shall constitute unfair
competition. In addition, Mr. McLeod agrees that this paragraph shall in no
way modify the post employment obligations of Mr. McLeod, as set forth in
Standard Practice 753-1 and its supplement. Standard Practice 753-1 and its
supplement are attached to this Agreement and Release as Exhibit A and are
incorporated by reference herein. Mr. McLeod further agrees that his
violation of this paragraph shall constitute a material breach of this
Agreement and Release.
15. Mr. McLeod agrees that, if he engages in a material breach of this
Agreement and Release, he shall repay to PG&E the payment he received under
this Agreement and Release and all monetary benefits he gained as a result
of the additional credited service he received under this Agreement and
Release within seven (7) calendar days upon written demand by PG&E. Also,
Mr. McLeod agrees, in the event of a material breach by him, his pension
benefit entitlement shall be re-computed without the additional credited
service he received under this Agreement and Release. Mr. McLeod further
agrees that, if he disavows this Agreement and Release and if this Agreement
and Release is ordered to be unenforceable by a tribunal of competent
jurisdiction, he shall repay to PG&E the payment he received under this
Agreement and Release and all monetary benefits he gained as a result
of the additional credited service he received under this Agreement
and Release within seven (7) calendar days from the entry of the final
order. Mr. McLeod further understands and agrees that, if a tribunal of
competent jurisdiction rejects his attempt to disavow this
Agreement and Release, he shall pay to PG&E within seven (7) calendar
days from the entry of the final order any loss, cost, damage, or
expense, including, without limitation, attorney's fees PG&E incurred
in enforcing the Agreement and Release.
16. This Agreement and Release shall not be considered an admission of
liability or of a violation of any applicable contract, law, rule,
regulation, or order of any kind.
17. Mr. McLeod understands and agrees that all claims arising under the
Age Discrimination in Employment Act he may have up to the date of this
Agreement and Release are covered by paragraphs 9 and 10 of this Agreement
and Release and that his waiver of those age discrimination claims is an
integral and material part of the release aspect of this agreement.
Therefore, consistent with the Older Workers Benefit Protection Act, Mr.
McLeod states that he was given this Agreement and Release on May 12, 1994,
and understands that he has up to 21 calendar days from May 12, 1994 (until
June 2, 1994), to consider this Agreement and Release. Further, Mr. McLeod
understands that, if he signs this Agreement and Release, he may revoke it
within seven (7) calendar days of the agreement's execution. To revoke this
Agreement and Release, Mr. McLeod must submit to Stanley T. Skinner,
President and Chief Operating Officer of PG&E a signed statement to that
effect by close of business of the seventh (7th) day. Mr. McLeod
understands and agrees that this Agreement and Release is not effective
under the expiration of the seven-day revocation period.
18. This Agreement and Release sets forth the entire agreement among the
parties and fully supersedes any and all prior agreements or understandings
among the parties pertaining to the subject matter of this Agreement and
Release.
19. If any provision of this Agreement and Release is determined to be
invalid or unenforceable, then the invalidity or unenforceability of that
provision shall not affect the validity or enforceability of any other
provision of this Agreement and Release and all other provisions shall
remain in full force and effect.
20. The parties understand and agree that any controversy or claim
arising out of or relating to this Agreement and Release, including its
breach, termination or validity shall be settled in accordance with the
Dispute Resolution procedures contained in Exhibit B to this Agreement and
Release and incorporated by reference herein.
21. Mr. McLeod states that he has read and understands the contents of
this Agreement and Release, that he has been afforded the opportunity to
review this Agreement and Release with an attorney or other personal advisor
of his choice, that he has not relied on any other oral or written
representation not contained in this Agreement and Release, that he has
signed it voluntarily, and that he understands that after signing this
Agreement and Release he is bound by all of its provisions.
PLEASE READ CAREFULLY. THIS AGREEMENT AND RELEASE INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
STANLEY T. SKINNER 5-18-94
PACIFIC GAS AND ELECTRIC COMPANY DATE
JERRY R. McLEOD 5/18/94
JERRY R. McLEOD DATE