EXHIBIT 10.37
PG&E CORPORATION
LONG-TERM INCENTIVE PROGRAM
RESTRICTED STOCK AGREEMENT
PG&E CORPORATION, a California corporation, hereby grants
shares of Restricted Stock to the Recipient named below. The shares of
Restricted Stock have been awarded under the PG&E Corporation Long-Term
Incentive Program (the "LTIP"). The terms and conditions of the Restricted Stock
are set forth in this cover sheet and in the attached Restricted Stock Award
Agreement (the "Agreement").
Date of Award: January 2, 2004
Name of Recipient: _____________________________________________________________
Recipient's Social Security Number: _____-____-_____
Number of Shares of Restricted Stock Awarded:___________________________________
Aggregate Fair Market Value of Restricted Stock on Date of Award: $_____________
BY SIGNING THIS COVER SHEET, YOU AGREE TO
ALL OF THE TERMS AND CONDITIONS DESCRIBED
IN THE ATTACHED AGREEMENT. YOU AND PG&E
CORPORATION AGREE TO EXECUTE SUCH FURTHER
INSTRUMENTS AND TO TAKE SUCH FURTHER
ACTION AS MAY REASONABLY BE NECESSARY TO
CARRY OUT THE INTENT OF THE ATTACHED
AGREEMENT. YOU ARE ALSO ACKNOWLEDGING
RECEIPT OF THIS AGREEMENT AND A COPY OF
THE PROSPECTUS DESCRIBING THE LTIP AND THE
RESTRICTED STOCK DATED JANUARY 1, 2004.
Recipient: _____________________________________________________________________
(Signature)
Attachment
Please return your signed Agreement to PG&E Corporation, Human Resources,
One Market Street, Spear Street Tower, Suite 400, San Francisco, California
94105
PG&E CORPORATION
LONG-TERM INCENTIVE PROGRAM
RESTRICTED STOCK AGREEMENT
THE LTIP AND This Agreement constitutes the entire understanding
OTHER between you and PG&E Corporation regarding the
AGREEMENTS Restricted Stock, subject to the terms of the LTIP.
Any prior agreements, commitments or negotiations are
superseded. In the event of any conflict or
inconsistency between the provisions of this
Agreement and the LTIP, the LTIP shall govern.
GRANT OF PG&E Corporation grants you the number of shares of
RESTRICTED STOCK Restricted Stock shown on the cover sheet of this
Agreement. The shares of Restricted Stock are subject
to the terms and conditions of this Agreement and the
LTIP.
LAPSE OF As long as you remain employed with PG&E Corporation
RESTRICTIONS (or any of its subsidiaries), the restrictions will
lapse as to 25 percent of the total number of shares
of Restricted Stock originally subject to this
Agreement, as shown above on the cover sheet, on the
first business day of January of each of the first,
second, third and fourth years following the Date of
Award (each such day an "Annual Lapse Date"). Except
as described below, all shares of Restricted Stock
subject to this Agreement as to which the
restrictions have not lapsed shall be forfeited upon
termination of your employment.
VOLUNTARY In the event that you terminate your employment with
TERMINATION PG&E Corporation voluntarily, you will automatically
forfeit to PG&E Corporation all of the shares of
Restricted Stock as to which the restrictions have
not lapsed subject to this Agreement as of the date
of such Termination.
TERMINATION FOR If your employment with PG&E Corporation (or any of
CAUSE its subsidiaries) is terminated by PG&E Corporation
or the subsidiary for cause, you will automatically
forfeit to PG&E Corporation all shares of Restricted
Stock as to which the restrictions have not lapsed
subject to this Agreement as of the date of such
termination. In general, termination for "cause"
means termination of employment because of
dishonesty, a criminal offense or violation of a work
rule, and will be determined by and in the sole
discretion of PG&E Corporation or the employing
subsidiary.
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TERMINATION If your employment with PG&E Corporation (or any of
OTHER THAN FOR its subsidiaries) is terminated by PG&E Corporation
CAUSE or the subsidiary other than for cause before the
restrictions on your Restricted Stock lapse, and you
are an officer in Bands 1-5, the restrictions on your
outstanding shares of Restricted Stock that would
have lapsed during the period of the "Severance
Multiple" under the applicable severance policy shall
continue to lapse pursuant to the regular lapse
schedule (or sooner, in the event of a Change in
Control during such period). In the event of your
involuntary termination other than for cause, if you
are not an officer in Bands 1-5, the restrictions on
your outstanding shares of Restricted Stock that
would have lapsed within 12 months following such
termination will continue to lapse pursuant to the
regular lapse schedule (or sooner, in the event of a
Change in Control during such period). All other
outstanding shares of Restricted Stock shall
automatically be forfeited to PG&E Corporation upon
such termination.
RETIREMENT In the event of your Retirement, the restrictions on
your outstanding shares of Restricted Stock will
continue to lapse as though your employment had
continued. You will be considered to have retired if
you are age 55 or older on the date of termination
and if you were employed by PG&E Corporation or any
of its subsidiaries for at least five consecutive
years ending on the date of termination of your
employment.
DEATH/DISABILITY If your employment terminates due to your death or
disability, the restrictions on all of your shares of
Restricted Stock shall lapse on the next Annual Lapse
Date. In the event of a Change in Control of PG&E
Corporation after such termination and before such
next Annual Lapse Date, the restrictions as to all
shares of Restricted Stock shall immediately lapse as
described below under "Change in Control."
TERMINATION If (1) your employment is terminated (other than for
DUE TO cause or your voluntary termination) by reason of a
DISPOSITION OF divestiture or change in control of a subsidiary of
SUBSIDIARY PG&E Corporation, which divestiture or change in
control results in such subsidiary no longer
qualifying as a subsidiary corporation under Section
424(f) of the Code or (2) if your employment is
terminated (other than for cause or your voluntary
termination) coincident with the sale of all or
substantially all of the assets of a subsidiary of
PG&E Corporation, the restrictions on all shares of
Restricted Stock shall lapse on the next Annual Lapse
Date. In the event of a Change in Control of PG&E
Corporation after such Termination and before such
next Annual Lapse Date, the restrictions as to all
shares of Restricted Stock shall immediately lapse as
described below under "Change in Control."
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ESCROW The certificates for the Restricted Stock shall be
deposited in escrow with the Corporate Secretary of
PG&E Corporation to be held in accordance with the
provisions of this paragraph. Each deposited
certificate shall be accompanied by any assignment
documents PG&E Corporation may require you to
execute. The deposited certificates shall remain in
escrow until such time as the certificates are to be
released or otherwise surrendered for cancellation as
discussed below. Upon delivery of the certificates to
PG&E Corporation, you shall be issued an instrument
of deposit acknowledging the number of shares of
Restricted Stock delivered in escrow to the Corporate
Secretary of PG&E Corporation.
All dividends, if any, on the Restricted Stock shall
be held in escrow and subject to the same
restrictions as the shares to which they relate.
RELEASE OF The shares of Restricted Stock held in escrow
SHARES AND hereunder shall be subject to the following terms
WITHHOLDING and conditions relating to their release from escrow
TAXES or their surrender to PG&E Corporation:
- When the restrictions as to your shares of
Restricted Stock lapse as described above, the
certificates for such shares shall be released
from escrow and delivered to you, at your request
within thirty (30) days of the applicable Annual
Lapse Date.
- Upon your Termination, any shares of Restricted
Stock as to which the restrictions have not
lapsed shall be forfeited and automatically
surrendered to PG&E Corporation as provided
herein.
Note that you must make arrangements acceptable to
PG&E Corporation to satisfy withholding or other
taxes that may be due before your shares will be
released to you. If you so elect, PG&E Corporation
will assist you in selling your shares through a
broker so that you can use the sales proceeds to
satisfy applicable taxes. You will receive the
remaining proceeds in cash. However, if you wish to
receive the stock certificates in lieu of selling
your shares, you will need to make arrangements to
pay the applicable taxes either by check or through
payroll deduction. PG&E Corporation will notify you
about how to instruct PG&E Corporation to sell your
shares when the restrictions lapse or make other
arrangements.
CHANGE IN The restrictions on all of your outstanding shares of
CONTROL Restricted Stock shall automatically lapse and become
nonforfeitable in the event there is a Change in
Control of PG&E Corporation.
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CODE SECTION Under Section 83(a) of the Internal Revenue Code of
83(b) ELECTION 1986, as amended (the "Code"), the Fair Market Value
of the Restricted Stock on the date any forfeiture
restrictions applicable to such Restricted Stock
lapse will be reportable as ordinary income at that
time. For this purpose, "forfeiture restrictions"
include surrender to PG&E Corporation of Restricted
Stock as described above. You may elect to be taxed
at the time the Restricted Stock is awarded to you,
rather than when the restrictions lapse by filing an
election under Section 83(b) of the Code with the
Internal Revenue Service within thirty (30) days
after the Date of Award. The form for making this
election is attached as Exhibit A hereto. Failure to
make this filing within the thirty (30) day period
will result in the recognition of ordinary income by
you (in the event the Fair Market Value of the
Restricted Stock increases after the date of
purchase) as the forfeiture restrictions lapse. YOU
ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND
NOT PG&E CORPORATION'S, TO FILE A TIMELY ELECTION
UNDER CODE SECTION 83(b). YOU ARE RELYING SOLELY ON
YOUR OWN ADVISORS WITH RESPECT TO THE DECISION AS TO
WHETHER OR NOT TO FILE A CODE SECTION 83(b) ELECTION.
LEAVES OF For purposes of this Agreement, if you are on an
ABSENCE approved leave of absence from PG&E Corporation (or
any of its subsidiaries), or a recipient of Company
sponsored disability benefits, you will continue to
be considered as employed. If you do not return to
active employment upon the expiration of your leave
of absence or the expiration of your PG&E Corporation
sponsored disability benefits, you will be considered
to have voluntarily terminated your employment. See
above under "Voluntary Termination."
PG&E Corporation reserves the right to determine
which leaves of absence will be considered as
continuing employment and when your employment
terminates for all purposes under this Agreement.
VOTING AND Subject to the terms of this Agreement, you shall
OTHER RIGHTS have all the rights and privileges of a shareholder
of PG&E Corporation while the Restricted Stock is
held in escrow, including the right to vote. As
described above, all dividends, if any, on the
Restricted Stock shall be held in escrow and subject
to the same restrictions as the shares to which they
relate.
RESTRICTIONS ON PG&E Corporation will not issue any Restricted Stock
ISSUANCE if the issuance of such Restricted Stock at that time
would violate any law or regulation.
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RESTRICTIONS ON By signing this Agreement, you agree not to sell any
RESALE AND Restricted Stock before the restrictions lapse or
HEDGE sell any shares acquired under this award at a time
TRANSACTIONS when applicable laws, regulations or Company or
underwriter trading policies prohibit sale. In
particular, in connection with any underwritten
public offering by PG&E Corporation of its equity
securities pursuant to an effective registration
statement filed under the Securities Act of 1933, you
shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for
value or agree to engage in any of the foregoing
transactions with respect to any shares acquired
under this award without the prior written consent of
PG&E Corporation or its underwriters, for such period
of time after the effective date of such registration
statement as may be requested by PG&E Corporation or
the underwriters.
If the sale of shares acquired under this award is
not registered under the Securities Act of 1933, but
an exemption is available which requires an
investment or other representation and warranty, you
shall represent and agree that the Shares being
acquired are being acquired for investment, and not
with a view to the sale or distribution thereof, and
shall make such other representations and warranties
as are deemed necessary or appropriate by PG&E
Corporation and its counsel.
By your acceptance of the award, you agree that while
the Restricted Stock is subject to restrictions, you
will not enter into a corresponding hedging
transaction relating to PG&E Corporation's stock nor
engage in any short sale of PG&E Corporation's stock.
This prohibition shall not apply to transactions
effected through PG&E Corporation's benefit plans
that provide an opportunity to invest in Company
stock or which provide compensation based on the
price of Company stock.
NO RETENTION This Agreement is not an employment agreement and
RIGHTS does not give you the right to be retained by PG&E
Corporation (or its subsidiaries). Except as
otherwise provided in an applicable employment
agreement, the Company (or any of its subsidiaries)
reserves the right to terminate your employment at
any time and for any reason.
LEGENDS All certificates representing the Restricted Stock
issued under this award shall, where applicable, have
endorsed thereon the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH
IN AN AGREEMENT BETWEEN PG&E CORPORATION AND THE
REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN
INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF PG&E
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CORPORATION AND WILL BE FURNISHED UPON WRITTEN
REQUEST TO THE CORPORATE SECRETARY OF PG&E
CORPORATION BY THE HOLDER OF RECORD OF THE SHARES
REPRESENTED BY THIS CERTIFICATE."
Applicable Law This Agreement will be interpreted and enforced under
the laws of the State of California.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE AND IN THE LTIP.
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Note: Do not have this Section 83(b) Election filed unless you wish to pay tax
withholding to PG&E Corporation at the same time.
EXHIBIT A
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address and social security number of the undersigned:
________________________________________________________________
________________________________________________________________
________________________________________________________________
Social Security No.:____________________________________________
2. Description of property with respect to which the election is being
made:
____________________ shares of common stock of PG&E Corporation.
3. The date on which the property was transferred is January 2, 2004.
4. The taxable year to which this election relates is calendar year 2004.
5. Nature of restrictions to which the property is subject:
The shares of stock are subject to the provisions of a Restricted Stock
Award Agreement (the "Agreement") between the undersigned and PG&E
Corporation. The shares of stock are subject to forfeiture under the
terms of the Agreement.
6. The fair market value of the property at the time of transfer
(determined without regard to any lapse restriction) was $__________
per share, for a total of $__________.
7. The amount paid by taxpayer for the property was $ 0 .
8. A copy of this statement has been furnished to PG&E Corporation.
Dated: _____________, 2004
_____________________________
[Taxpayer's Name]
Note: A valid Section 83(b) Election must be filed with the IRS within 30 days
of the Date of Award. Accordingly, if you wish to file, please submit this
signed form for receipt by January 29, 2003 to PG&E Corporation, Human
Resources, One Market Street, Spear Street Tower, Suite 400, San Francisco, CA
94105.
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