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Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
PG&E CORPORATION
(Exact name of issuer as specified in its charter)
California 94-3234914
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
77 Beale Street, P.O. Box 770000, San Francisco, California 94177
(Address of principal executive offices) (Zip Code)
PG&E GAS TRANSMISSION, TEXAS CORPORATION
SAVINGS FUND PLAN
(Full title of the plan)
Bruce R. Worthington, Esq.
General Counsel
PG&E Corporation
77 Beale Street, P.O. Box 770000, San Francisco, California 94177
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 973-2078
Copy to:
Leslie P. Jay, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
- ----------------------------------------------------------------------------
Common Stock** 1,000,000 shares $24.00 $24,000,000 $7,273.00
============================================================================
* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), on the basis of $24.00 per share, the average
of the high and low prices of the Common Stock on the New York Stock
Exchange on August 8, 1997.
** In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of PG&E Corporation (the "Registrant")
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); (ii) all other reports filed by the Registrant
pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the annual report referred to in clause (i) above; and
(iii) the description of the Registrant's common stock (the "Common Stock")
filed pursuant to the Exchange Act, including any amendment or report filed for
the purpose of updating such description. All documents filed by the Registrant
or the PG&E Gas Transmission, Texas Corporation Savings Fund Plan after the date
of this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment (that
indicates all securities offered have been sold or deregisters all securities
then remaining unsold), shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock and all legal matters in connection therewith
will be passed upon by Gary P. Encinas, Esq., Chief Counsel, Corporate for the
Registrant. Mr. Encinas and other members of Pacific Gas and Electric
Company's Law Department who will participate in consideration of legal matters
relating to the Common Stock, together with members of their respective
families, own in the aggregate approximately 2,100 shares of Common Stock, and
have received options to purchase approximately 68,100 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code and Article SIXTH of the
Registrant's Articles of Incorporation provide for indemnification of the
Registrant's directors and officers under certain circumstances. The
Registrant's Board of Directors has adopted a resolution regarding the
Registrant's policy of indemnification and the Registrant maintains insurance
which insures directors and officers of the Registrant against certain
liabilities.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 PG&E Gas Transmission, Texas Corporation Savings Fund Plan.
5.1 Undertaking re Status of Favorable Determination Letter Covering the Plan.
The Registrant will cause its subsidiary, PG&E Gas Transmission, Texas
Corporation, to submit the PG&E Gas Transmission, Texas Corporation Savings
Fund Plan (the "Plan") to the Internal Revenue Service (the "IRS") with a
request for a favorable determination that the Plan qualifies under section
401(a) and related provisions of the Internal Revenue Code of 1986, as
amended, and to make such changes to the Plan required by the IRS in order
to receive such favorable determination.
5.2 Opinion of Gary P. Encinas, Esq.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gary P. Encinas, Esq. is included in Exhibit 5.2 to this
Registration Statement.
24.1 Powers of Attorney.
24.2 Resolution of the Board of Directors of the Registrant authorizing the
execution of the Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in
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the registration statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 14th day of
August, 1997.
PG&E CORPORATION
(Registrant)
By GARY P. ENCINAS
---------------------------------------
(Gary P. Encinas, Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
A. Principal Executive Officer
*ROBERT D. GLYNN, JR. President and August 14, 1997
Chief Executive
Officer
B. Principal Financial Officer
*KENT M. HARVEY Treasurer and August 14, 1997
Acting Chief
Financial Officer
C. Controller or Principal
Accounting Officer
*CHRISTOPHER P. JOHNS Controller August 14, 1997
</TABLE>
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<TABLE>
<CAPTION>
D. Directors
<S> <C> <C>
* STANLEY T. SKINNER Director August 14, 1997
* ROBERT D. GLYNN, JR. Director August 14, 1997
* RICHARD B. MADDEN Director August 14, 1997
* SAMUEL T. REEVES Director August 14, 1997
* ALAN SEELENFREUND Director August 14, 1997
* C. LEE COX Director August 14, 1997
* DAVID A. COULTER Director August 14, 1997
* RICHARD A. CLARKE Director August 14, 1997
* H. M. CONGER Director August 14, 1997
* MARY S. METZ Director August 14, 1997
* JOHN C. SAWHILL Director August 14, 1997
* WILLIAM S. DAVILA Director August 14, 1997
* DAVID M. LAWRENCE Director August 14, 1997
* REBECCA Q. MORGAN Director August 14, 1997
* BARRY LAWSON WILLIAMS Director August 14, 1997
* CARL E. REICHARDT Director August 14, 1997
</TABLE>
*By: GARY P. ENCINAS
----------------------------------------------
(Gary P. Encinas, Attorney-in-Fact)
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THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the PG&E Gas
Transmission, Texas Corporation Savings Fund Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on the 14th
day of August, 1997.
PG&E GAS TRANSMISSION, TEXAS
CORPORATION SAVINGS FUND PLAN
By *Stephen P. Reynolds, sole member
of the Administrative Committee
* By GARY P. ENCINAS
-------------------------------------
(Gary P. Encinas, Attorney-in-Fact)
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EXHIBIT INDEX
4.1 PG&E Gas Transmission, Texas Corporation Savings Fund Plan.
5.1 Undertaking re Status of Favorable Determination Letter Covering the Plan
(See Item 8 of this Registration Statement).
5.2 Opinion of Gary P. Encinas, Esq.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Gary P. Encinas, Esq. is included in Exhibit 5.2 to this
Registration Statement.
24.1 Powers of Attorney.
24.2 Resolution of the Board of Directors of the Registrant authorizing the
execution of the Registration Statement.
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EXHIBIT 4.1
PG&E GAS TRANSMISSION, TEXAS CORPORATION
SAVINGS FUND PLAN
August 1, 1997
PG&E Gas Transmission, Texas Corporation
a Delaware corporation
530 McCullough
San Antonio, Texas 78215 Company
The Company adopts this plan to provide for qualified retirement plan
benefits effective August 1, 1997 in accordance with the provision set out
below.
ARTICLE I
Relevant Dates; Qualification
1.01 Effective Date; Plan Year;
Limitation Year; Valuation Dates
1.01-1 This Plan shall be effective August 1, 1997.
1.01-2 The plan year and limitation year shall be the calendar year,
except that the first plan year and limitation year shall be the five-month
period from August 1, 1997 to December 31, 1997 and applicable limitations on
covered compensation and annual additions shall be pro-rated as required by law.
1.01-3 The plan shall have daily valuation dates unless the Committee
directs the administrator to employ balance-forward valuation procedures, in
which case last day of each plan year shall be the regular valuation date and
each other date on which the trust assets are valued at the request of the
Committee shall be a special valuation date. Under daily procedures, each
regular business day on which accounts can be valued with reference to
established securities markets shall be a valuation date.
1.02 Qualification
1.02-1 The plan and the related trust are maintained for the exclusive
benefit of eligible employees and are intended to comply with sections 401(a),
401(k), 401(m) and 501 of the Internal Revenue Code and applicable regulations.
This plan is a profit sharing plan.
1.02-2 If the Commissioner of Internal Revenue initially rules that
the plan and the related trust do not qualify under sections 401(a), 401(k),
401(m) and 501 of the Internal Revenue Code, the Company may, within the time
permitted by applicable law and regulations,
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amend the plan and trust retroactively to qualify or may rescind them. If the
plan and trust are rescinded for failure initially to qualify, all
contributions, adjusted for interim investment results and expenses, shall be
returned, and all rights of employees shall cease as though the plan and trust
had not been adopted.
ARTICLE II
Application to the Company and Affiliates
2.01 Eligible Employers
2.01-1 The Company has adopted this plan, and any affiliate approved
by the Company may adopt this plan for its employees.
2.01-2 "Affiliate" means a corporation, person or other entity that is
a member, with an Employer, of any of the following:
(a) A controlled group under section 414(b) of the Internal
Revenue Code.
(b) A group of trades or businesses under common control under
section 414(c) of the Internal Revenue Code.
(c) An affiliated service group under section 414(m) of the
Internal Revenue Code.
(d) A group of businesses required to be aggregated under
section 414(o) of the Internal Revenue Code.
2.01-3 "Employer" means the Company and any adopting affiliate. This
plan is a single plan which is or may be maintained by multiple employers and in
which all of the plan assets are available to pay benefits for all participants.
2.02 Service for Affiliates
2.02-1 Transfer of employment from one affiliate to another shall not
cause a termination or Break in Service.
2.02-2 Work for any affiliate, whether or not an adopting Employer,
shall be counted as Service after the business becomes an affiliate or an
earlier date fixed by the Company or in a statement of adoption.
2.02-3 Compensation paid by an acquired affiliate and qualified
retirement plan benefits provided by an acquired affiliate with respect to a
period of employment before the affiliation date shall be disregarded under this
plan except as provided in a statement of adoption or as required by law.
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2.02-4 If a business is acquired by the Company or an affiliate and
not continued as a separate affiliate, Service for employees of the acquired
business who become employees of the Company or the acquiring affiliate shall be
counted from their date of hire by the Company or the affiliate. Past service
for the acquired business may be counted from dates fixed by the Company, filed
with the Committee and announced to affected employees.
2.02-5 If an employee is employed by two or more affiliates at the
same time, the following rules shall apply:
(a) Service for both affiliates shall count to determine
whether a Service Year is a Year of Service.
(b) The employee may elect pre-tax and employee after-tax
contributions up to the maximum allowed percentage of compensation from
each Employer, but may not elect contributions from compensation from a
non-adopting affiliate.
(c) The employee shall receive a share of the matching
contribution from each Employer based on elective pre-tax and employee
after-tax contributions with respect to compensation from each.
2.03 Adoption Procedure
An affiliate may adopt this plan by a written statement signed by the
affiliate, approved by the Company and filed with the Trustee. The statement
shall include the effective date of adoption and any special provisions that are
to be applicable only to employees of the adopting affiliate.
ARTICLE III
Eligibility and Service
3.01 Conditions of Eligibility
3.01-1 An employee shall participate as follows:
(a) Subject to election procedures under 4.02 and 4.04,
participation shall start on the first day of the month on or next
after the date the employee satisfies the following requirements:
(1) The employee has completed six months of employment.
(2) The employee is a Qualified Employee.
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(b) Participation in elective pre-tax contributions and
employee after-tax contributions shall continue as long as the employee
remains a Qualified Employee.
(c) Participation in matching contributions shall continue as
provided in 4.03 and 13.03-2.
3.01-2 "Qualified Employee" means any employee of Employer except the
following:
(a) An employee covered by a collective bargaining agreement
that does not provide for participation in this plan.
(b) A leased employee treated as an employee for pension
purposes solely because of section 414(n) of the Internal Revenue Code.
(c) A nonresident alien who has no US-source earned income.
3.01-3 Subject to 3.01-4 below, "employee" means for a year one of
the following:
(a) A person who receives an IRS Form W-2 from Employer or an
affiliate under 2.01-2, other than the following:
(1) A person who receives a Form W-2 solely because of
payments from a non-qualified deferred compensation plan.
(2) A person who receives a Form W-2 solely because of
payments for the year attributable entirely to services
performed in the prior year.
(b) A person who has satisfied (a) in a prior year and not in
the current year but is treated as an employee for accruing service
under a specific provision of this plan.
(c) A leased employee under 3.01-2(b).
3.01-4 If a person's employment status is redetermined for any period,
the following shall apply:
(a) A person who receives a Form W-2 for a period and is later
determined to be an independent contractor for that period, not an
employee, shall be treated as ineligible retroactively to the earliest
date on which the determination is effective.
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(b) A person who does not receive a Form W-2 for a period shall
not be treated as an employee for that period even if it is later
determined that the person was entitled to receive a Form W-2 for the
period.
3.01-5 Every person eligible to elect contributions or having an
account under this plan shall be known as a participant. The Committee shall
inform participants about the plan and furnish enrollment forms for making
contribution elections, making investment elections and designating
beneficiaries.
3.02 Service
3.02-1 "Year of Service" means a 12-month period in which an employee
is in one of the following periods:
(a) A period of employment with Employer or an affiliate.
(b) A period of severance for which Service is counted under
3.02-5.
(c) A period of layoff for which Service is counted under
3.02-7.
(d) A period of disability for which Service is counted under
7.02-2.
3.02-2 Employment starts on the day the employee first performs an
Hour of Service and ends on the employee's Severance from Service.
3.02-3 "Hour of Service" means an hour for which an employee is paid
or entitled to payment for the performance of duties.
3.02-4 An employee's "Severance from Service" is the earlier of the
following:
(a) The dates prior to normal retirement date, on which the
employee quits, retires, is discharged or dies.
(b) The first anniversary of the date on which the employee
ceased performing Hours of Service for a reason not described in (a),
except that the severance date for an employee on leave of absence
under 3.03 shall be extended to the end of the leave unless 3.03-3
applies.
3.02-5 Service will be counted under 3.02-1(b) during a period of
severance following a participant's Severance from Service by quit, discharge or
retirement prior to normal retirement date if either of the following applies:
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(a) The employee returns to perform an Hour of Service for
Employer or an affiliate within the applicable return period as
follows:
(1) Subject to 3.02-6, if the absence is because of
maternity or paternity under 3.04-1(d) the return period shall
be two years.
(2) In other cases the return period shall be one year.
(b) The employee is on FMLA leave.
3.02-6 The entire return period shall be a period of severance for
which Service may be credited under 3.02-5 except for absence because of
maternity or paternity. The second year of absence for maternity or paternity
shall not be a period of severance for which Service is credited under 3.02-5.
Not more than one year of service will be credited under 3.02-5(a)(2).
3.02-7 For purposes of determining the Severance from Service date,
the following periods shall not be considered absences from work:
(a) Periods during a leave of absence authorized by Employer.
(b) Periods during absence because of illness or injury during
which the participant is entitled to any of the following:
(1) Sick leave pay.
(2) Benefits under a state disability plan, a long term
disability plan of Employer, or a Workers' Compensation Law.
(c) Absence for military service as long as reemployment rights
are protected by law.
3.02-8 All whole or fractional Years of Service not disregarded due to
a Break in Service shall be counted. Fractional Years shall be aggregated to
form whole Years of Service and any remaining whole months shall be counted as
one-twelfth of a Year of Service. Partial months shall be aggregated into whole
months based on 30 days to the month.
3.02-9 For persons who earn at least an Hour of Covered Service as a
Qualified Employee for an Employer within 12 months from August 1, 1997 through
July 31, 1998, Service as an employee before August 1, 1997 for Valero Energy
Corporation (Valero) and its predecessors and affiliates shall also be counted
as Service under 3.02-1 and related provisions. For employees who became
employees of an Employer effective January 28, 1997 when Teco Pipeline Company
(Teco) was acquired by Pacific Gas & Electric Corporation (PG&E), service
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for Teco and its predecessors and affiliates, including TRT Holdings, Inc.
shall also be counted as Service under 3.02-1 and related provisions. Service
for PG&E, and its predecessors and affiliates shall also be counted as Service
under the above rules. Similarly, for employees who became employees of the
Company in 1996 when Energy Source, Inc. (ESI) was acquired by PG&E, service for
ESI and its predecessors and affiliates shall also be counted as Service under
3.02-1 and related provisions.
3.02-10 If an employee of Employer is shared with other employers on
an agreed basis, all time for all employers shall be counted to determine the
employee's Service.
3.03 Leaves of Absence
3.03-1 Leaves of absence that will extend the severance date under
3.02-4(b) shall mean the following:
(a) A leave of absence authorized by Employer if the employee
returns or retires within the time prescribed by Employer and otherwise
fulfills all conditions imposed by Employer.
(b) A leave of absence in accordance with Employer policies
because of illness or accident, including disability under 7.02, if the
employee returns promptly after recovery.
(c) A period of military service if the employee returns with
employment rights protected by law.
(d) Periods of leave during which service for eligibility and
vesting must be counted under the Family and Medical Leave Act of 1993
(FMLA leave).
3.03-2 In authorizing leaves of absence, Employer shall treat all
employees similarly situated alike as much as possible.
3.03-3 If an employee on leave fails to meet the conditions of the
leave or fails to return to work when required, the following shall apply:
(a) Employment shall be terminated and accrual of benefits
shall stop when the failure occurs if either of the following applies:
(1) The leave is not for military service and the failure
is because of death, disability under 7.02 or retirement.
(2) The leave is an FMLA leave.
(b) If (a) does not apply, accrual of Years of Service shall
stop as of the earlier of the following:
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(1) The first anniversary of the date the employee ceased
performing Hours of Service.
(2) The date of quit or discharge.
(c) A person who leaves employment to enter military service
shall be treated as having quit on the last day of active employment.
3.04 Break in Service
3.04-1 A Break in Service shall be determined as follows:
(a) A Break in Service shall occur when a participant has five
consecutive Break in Service Years.
(b) Subject to (c), a Break in Service Year is the 12-month
period starting on the last date for which service is counted under
3.02-4 or 3.02-5 or an anniversary of that date.
(c) An employee absent because of maternity or paternity shall
not, because of such absence, start a Break in Service until the second
anniversary of the date the absence began.
(d) Absence because of "maternity or paternity" means an
absence from service because of any of the following:
(1) Pregnancy.
(2) Birth of the employee's child or care following birth.
(3) Adoption of the employee's child or care following
adoption or placement for adoption.
(e) Paragraph (c) shall not apply unless the employee furnishes
timely information satisfactory to the Committee to establish both of
the following:
(1) That the absence was due to maternity or paternity.
(2) The length of such absence.
3.04-2 Intermittent periods of service shall be aggregated until there
is a five-year Break in Service. If such a Break in Service occurs and the
participant has later service, service before the Break will be counted only if
one of the following applies:
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(a) The participant had a vested interest before the Break.
(b) The number of Years of Service before the Break is greater
than the number of consecutive Break in Service Years.
3.04-3 If a Break in Service occurs and the employee has later
service, the following shall apply:
(a) If service before the Break is counted under 3.04-2, any
prior forfeitures shall be restored and service before and after the
Break shall be combined for vesting of prior and future benefit
accruals.
(b) If service before the Break is not counted, prior accruals
shall remain forfeited and future accruals shall be vested based on
service after the break.
3.05 Construction of Service Rules
In any case not covered specifically by the plan, the Committee shall
determine Benefit Service and Eligibility Service in a manner consistent with
the general intent of the plan.
ARTICLE IV
Compensation; Contributions
4.01 Compensation
4.01-1 "Compensation" means the following subject to 4.01-3 and the
limits in 4.01-2:
(a) For deductibility of contributions under 4.07 and for the
annual addition limit under 4.08-2(b), compensation means taxable pay
reportable on IRS Form W-2 under Internal Revenue Code section 3401(a),
disregarding limitations based on the nature or location of the
employment.
(b) For determination of highly compensated employees under
4.05-5, compensation under (a) above shall be adjusted as follows:
(1) Amounts described in (c)(1) below shall be included.
(2) Amounts realized from the exercise of a nonqualified
stock option or from the lapse of restrictions on restricted
property shall be excluded.
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(c) Subject to (d), elective pre-tax contributions under 4.02,
matching contributions under 4.03, employee after-tax contributions
under 4.04 and the ADP and CP test under 4.05-2, compensation means the
amount under (a) above adjusted as follows:
(1) Elective pre-tax contributions and any amounts set
aside by the participant from otherwise taxable income under a
welfare benefit plan qualified under section 125 of the
Internal Revenue Code (a cafeteria plan) shall be included.
(2) The taxable portion of any reimbursements or other
expense allowances, fringe benefits, moving expenses, severance
or disability pay and other deferred compensation, bonuses,
overtime pay, shift differential pay and welfare benefits shall
be excluded.
(d) For purposes of the ADP and CP tests under 4.05-2, the
Committee may use any definition of compensation permitted by Internal
Revenue Code section 414(s) in lieu of the definition in 4.01-1(c).
4.01-2 Except for determination of the annual addition limit,
compensation for any participant for a year shall be limited to $150,000 plus
any cost-of-living adjustment authorized by applicable law.
4.01-3 During any leave of absence for military service under 3.03,
compensation shall be imputed at the rate the participant would have been paid
if not absent. If this amount is not reasonably certain, compensation shall be
based on the participant's average compensation during the 12 months immediately
before the leave began, or all such months if fewer than 12.
4.02 Elective pre-tax contributions
4.02-1 Employer shall make elective pre-tax contributions as follows:
(a) Subject to 4.07, 4.08 and the limits stated below, the
contribution for a participant shall be a percentage of compensation
elected by the participant, and the participant's wages, salary or
other compensation for the year shall be reduced by that amount. For
this purpose, other compensation includes a participant's otherwise
taxable benefit dollars available but not utilized for qualifying
employee welfare benefits under an employer's cafeteria plan (flex plan
dollars).
(b) Elective pre-tax contributions under (a) shall be in whole-
number percentages. The lowest percentage that may be
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elected shall be 2 percent of compensation, including any employee
after-tax contributions elected under 4.04-1.
(c) An employee's elective pre-tax contributions in a year, in
combination with the employee's after-tax contributions for the year,
shall be limited to 15 percent of compensation, or a greater or lesser
percentage fixed by the Committee. The Committee may fix lower maximums
for highly compensated employees to satisfy the requirements of 4.05.
In the first year of participation, compensation shall be counted for
the part year after the employee is first eligible to participate.
(d) The maximum elective contribution (including any unused
flex plan dollars deferred under (a) above) for any calendar year for
any participant shall be $7,000 plus any cost-of-living adjustment
authorized by applicable regulations.
4.02-2 The Committee shall establish rules covering the method and
frequency of elections and procedures for starting, stopping and changing the
rate of elective pre-tax contributions.
4.02-3 If an employee's elective pre-tax contributions for a plan year
would be more than permitted under 4.02-1(d) (an excess deferral), the following
shall apply:
(a) Any direction for such an excess deferral shall be invalid
and the excess deferral shall not be made.
(b) An excess deferral that occurs, regardless of the
restriction in (a), under all plans maintained by Employer or a
statutory affiliate under 2.01-2 shall be a designated excess and shall
be distributed to the participant subject to (e).
(c) Subject to (e) below, if an excess deferral occurs because
of elective deferrals under (b) above combined with deferrals under one
or more plans not maintained by Employer or a statutory affiliate, the
excess shall be distributed if the following conditions are satisfied:
(1) The participant notifies the Committee of the excess
deferral by March 1 following the close of the year, unless the
Committee waives the deadline.
(2) The notice specifies how much of the excess deferral is
to be distributed from this plan.
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(3) Other applicable rules of the Committee are followed.
(d) Any distribution under (b) or (c) shall be completed by
April 15 following the close of the year for which the excess deferral
is made.
(e) A participant's distribution under (b) or (c) shall include
related earnings and shall be reduced by the amount of any excess
contribution previously distributed under 4.06-2 for the same plan
year.
4.02-4 A participant who returns from military leave under 3.03-1(c)
may make elective pre-tax contributions on account of the period of leave as
follows:
(a) Subject to (c) and (e), make-up elective pre-tax
contributions may be made only during the contribution make-up period
under (b) out of compensation payable during such period.
(b) The contribution make-up period begins on the date the
participant is reemployed and ends on the earlier of the following:
(1) The fifth anniversary of reemployment.
(2) The last day of a period that is three times the period
of military leave.
(c) To the extent permitted by applicable regulations, make-up
contributions may be made out of funds other than compensation. Each
such contribution shall be considered made when the participant
delivers funds to the plan equal to the contribution amount.
(d) The participant shall file an election with the Committee
designating the plan year during military leave to which make-up
elective pre-tax contributions under (a) and (c) relate.
(e) Elective pre-tax contributions under (a) and (c), plus
elective pre-tax contributions made in the plan year for which the
make-up contributions are made, shall not exceed the limit in 4.02-
1(c), and 4.02-3 shall apply.
4.02-5 Elective pre-tax contributions shall be made in cash.
4.03 Matching Contributions
4.03-1 For each plan year Employer may make matching contributions as
follows, subject to 4.08:
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(a) The contribution for each participant shall initially be
100 percent of the participant's matched contributions under (b) and
(c) below for the year. The Board of Directors or chief executive
officer of the Company may change this percentage prospectively, or may
eliminate matching contributions prospectively, by a plan amendment,
which shall specify the matching percentage, if any. A matching
contribution shall be allocated to participants in proportion to their
matched elective pre-tax contributions and matched employee after-tax
contributions for the plan year.
(b) "Matched elective pre-tax contributions" are the
participant's elective pre-tax contributions, other than flex plan
dollars under 4.02-1(a), up to 6 percent of the participant's
compensation under 4.01-1(c). The 6 percent limit is applied paycheck-
by-paycheck, not cumulatively.
(c) "Matched employee after-tax contributions" are the
participant's employee after-tax contributions under 4.04 up to 6
percent of the participant's covered compensation under 4.01-1(c), with
the participant's 6 percent ceiling for a paycheck reduced by any
matched elective pre-tax contributions of the participant for a
paycheck.
(d) "Unmatched elective pre-tax contributions" are the
participant's elective pre-tax contributions in excess of the
participant's matched elective pre-tax contributions for the year.
Unmatched elective pre-tax contributions will not have matching
contributions.
(e) "Unmatched employee after-tax contributions" are the
participant's employee after-tax contributions in excess of the
participant's matched employee after-tax contributions for the year.
Unmatched employee after-tax contributions will not have matching
contributions.
4.03-2 Elective pre-tax contributions and after-tax contributions
shall be determined after giving effect to any reductions under 4.08, 4.09,
12.09 or 13.01-1.
4.03-3 Matching contributions shall be made in cash.
4.03-4 Each plan year, Employer shall make an additional matching
contribution with respect to make-up elective pre-tax contributions made during
that plan year under 4.03-4 as follows:
(a) The additional matching contribution shall be determined
separately with respect to each plan year to which a participant's
military leave election under 4.02-4(d) relates.
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(b) The amount of the additional matching contribution with
respect to any plan year during military leave shall equal the amount
of additional matching contribution that would have been made had the
make-up elective pre-tax contributions been made during that plan year.
4.04 Employee After-Tax Contributions
4.04-1 Subject to 4.08 and 4.05-3, Qualified Employees may make after-
tax contributions to the plan each year, as follows:
(a) The amount shall be a whole-number percentage of
compensation for the year as defined in 4.01-1(c). The lowest
percentage that may be elected shall be 2 percent of compensation,
including any employee elective pre-tax contributions elected under
4.02-1.
(b) Employee after-tax contributions in a year, in combination
with an employee's elective pre-tax contributions for the year, shall
be limited to 15 percent of compensation, or a greater or lesser
percentage fixed by the Committee. The Committee may fix lower maximums
for highly compensated employees to satisfy the requirements of 4.05.
In the first year of participation, compensation shall be counted for
the part year after the employee is first eligible to participate.
4.04-2 Employee after-tax contributions shall be made by payroll
deduction in the same manner as elective pre-tax contributions. Employee
contributions shall be accounted for as the Committee may decide and credited at
such intervals as the Committee may fix. Contributions shall be credited not
later than the next valuation date under 1.01-3 after payment to the Trustee.
4.04-3 A participant who returns from military leave under 3.03-1(c)
may make after-tax contributions pursuant to rules comparable to those in 4.02-4
for elective pre-tax contributions.
4.05 Contribution Limits for Highly Compensated Employees
4.05-1 For each year the plan shall satisfy the nondiscrimination
tests in sections 401(k)(3) and 401(m) of the Internal Revenue Code in
accordance with Treasury Regulation sections 1.401(k)-1 and 1.401(m)-1 and -2.
The following provisions shall be applied in a manner consistent with the Code
and Regulation sections, which are incorporated by this reference.
4.05-2 For each plan year the Committee shall determine the actual
deferral percentage (ADP) and the contribution percentage (CP) of the eligible
employees who are highly
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compensated employees under 4.05-5 and the ADP and CP of the remaining eligible
employees as follows:
(a) The ADP and CP for the highly compensated employees or for
the nonhighly compensated employees is the average of the individual
deferral or contribution percentages for all eligible employees in the
group.
(b) An employee's individual deferral percentage is that
individual's elective pre-tax contributions for the year as a
percentage of the individual's compensation under (d). Excess elective
deferrals for a nonhighly compensated employee under a plan maintained
by Employer shall be disregarded.
(c) An employee's individual contribution percentage is that
individual's matching contributions and employee after-tax
contributions for the year, including amounts recharacterized under
4.07, as a percentage of the individual's compensation under (d).
(d) Compensation for purposes of the ADP and CP is compensation
under 4.01-1 for the entire plan year, except that in the first year of
participation, compensation shall be counted for the part year after
the employee is first eligible to participate.
(e) The Committee may, for any year, treat elective pre-tax
contributions not needed for the ADP test as matching contributions for
purposes of the CP test. No contributions may be used in both tests.
(f) The following shall be aggregated to determine the ADP and
the CP:
(1) All plans that are aggregated with this plan under
Internal Revenue Code sections 401(a)(4) and 410(b) (other than
for the average benefit percentage test).
(2) All cash and deferred arrangements in which the same
highly compensated employee is eligible to participate.
4.05-3 Neither the ADP nor the CP of the highly compensated employees
may exceed the greater of the following, as adjusted in 4.05-4:
(a) 1.25 times the ADP or CP of the nonhighly compensated
employees for the prior plan year. For 1997, the ADP and CP for the
current plan year shall be used.
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(b) 2 percentage points higher than the ADP or CP of the
nonhighly compensated employees for the prior plan year, up to 2 times
such ADP or CP. For 1997, the ADP and CP for the current plan year
shall be used.
4.05-4 The limits in 4.05-3 shall be applied under the following
rules:
(a) The limit in 4.05-3(b) shall be adjusted in accordance with
Treasury Regulation section 1.401(m)-2 to avoid duplicate use of the
limit for any highly compensated employee in violation of Code section
401(m)(9).
(b) In accordance with applicable regulations, the Employer may
elect to apply the limits in 4.05-3 using the ADP and CP of nonhighly
compensated employees for the current year.
4.05-5 "Highly compensated employee" is defined in section 414(q) of
the Internal Revenue Code and related Treasury regulations. In determining
which employees are highly compensated employees, the following shall apply:
(a) Subject to (b) through (d) below, a highly compensated
employee for a plan year is an employee who has performed services for
Employer during the year or the prior plan year and is one of the
following:
(1) An owner of 5 percent or more of an Employer during
either year.
(2) A person paid over $80,000 for the prior year.
(b) The dollar amounts in (a) above shall be adjusted in
accordance with Treasury regulations for changes in cost of living.
(c) Former employees shall be taken into account in accordance
with applicable regulations.
(d) Pay for this purpose shall mean compensation under 4.01-
1(b), adjusted in accordance with 4.01-1(c)(1).
4.06 Actions to Correct Excess Contributions
for Highly Compensated Employees
4.06-1 If the ADP or CP of the highly compensated employees would
exceed the limits in 4.05-3, the Committee shall adjust the contributions for
certain highly compensated employees to come within the limits, as follows
subject to 4.07:
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(a) If the ADP limit is exceeded, elective pre-tax
contributions and related matching contributions shall be adjusted,
taking the highest individual deferral amount first.
(b) If the CP limit is exceeded, first employee after-tax
contributions (including any recharacterized contributions), then
matching contributions, shall be adjusted, taking the highest
individual contribution amount first.
(c) Amounts recharacterized under 4.07 shall be reflected
before the correction is calculated.
4.06-2 Adjustments under 4.06-1 shall be by forfeiture or distribution
as follows:
(a) Amounts from matching contributions shall be forfeited,
with related earnings, to the following extent:
(1) Any matching amount under 4.06-1(a) shall be forfeited
whether or not it would otherwise have been vested.
(2) Any amount under 4.06-1(b) shall be forfeited to the
extent of any unvested balance in the matching contribution
account of the highly compensated employee to whom it applies.
The unvested balance shall be determined before the reduction.
(3) Amounts forfeited shall be applied first to restore
previously forfeited amounts under 8.05-1, then to pay plan
expenses or offset future matching contributions.
(b) Subject to (d) below, any elective pre-tax contributions
under 4.06-1(a) shall be distributed, with related earnings, to the
highly compensated employees to whom they apply.
(c) Employee after-tax contributions and matching contributions
under 4.06-1(b) shall be distributed, with related earnings, to the
highly compensated employees to whom the adjustment applies.
(d) A distribution under (b) above because of the ADP test
shall be reduced by the amount of any excess deferral previously
distributed under 4.02-3(b) for the same plan year.
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(e) Related earnings shall be determined under applicable
regulations. Distribution shall be made during the plan year after the
year to which the excess applies.
4.07 Recharacterization of Excess Elective Pre-tax
Contributions
4.07-1 Excess elective pre-tax contributions under the ADP test may be
recharacterized as an employee after-tax contributions under the following
rules:
(a) Recharacterization may be combined with distribution under
4.06 to correct the excess. If part of the excess is recharacterized,
the distribution necessary for correction under 4.07 shall be reduced
by the amount recharacterized and related earnings. Earnings related to
a recharacterized excess shall not be treated as an amount
recharacterized.
(b) The Committee shall decide each year whether all or part of
any required correction will be carried out by Recharacterization.
(c) Recharacterization must occur within two and one-half
months after the close of the plan year to which it relates. The date
of notice under (d) shall be the date of Recharacterization.
(d) The Committee shall notify the affected participant of the
Recharacterization in accordance with applicable regulations.
4.07-2 An amount recharacterized shall be accounted for as follows:
(a) The amount shall be treated as an employer contribution for
purposes of deduction limits under 4.08, minimum distribution rules
under 6.04, annual addition limitations under 4.09 and top-heavy plan
provisions under Article 13.
(b) The amount shall be treated as an elective pre-tax
contribution for purposes of restrictions on in-service withdrawals
under 5.05 and as after-tax employee contributions for tax treatment on
distribution or withdrawal.
(c) The amount shall be treated as an elective pre-tax
contribution for purposes of determining compensation.
4.08 Deductibility
4.08-1 Contributions are conditioned upon deductibility under section
404 of the Internal Revenue Code. To the extent a deduction is disallowed,
12.09 shall apply.
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4.08-2 The aggregate of elective pre-tax and matching contributions
under this plan and all other employer contributions to any profit sharing and
stock bonus plans maintained by an Employer covering some or all of the same
participants shall not exceed 15 percent of aggregate compensation under 4.01-
1(a) for all the Employer's participants. To the extent the 15 percent limit is
exceeded, 12.09 shall apply.
4.08-3 If contributions would exceed the 15 percent limit because of
another defined contribution plan, the amount recovered under 12.09 shall be
charged in the same order as reductions under 4.10-2, disregarding returns of
employee after-tax contributions, and 4.09-3 shall apply.
4.09 Limit on Annual Additions
4.09-1 Benefits shall be limited in accordance with the following
rules as provided in Internal Revenue Code section 415 and related regulations.
The following provisions shall be applied in a manner consistent with the Code
and regulations, which are incorporated by this reference.
4.09-2 No annual addition for any participant shall be more than the
lesser of the following:
(a) $30,000 plus any authorized cost-of-living adjustment.
(b) 25 percent of the participant's compensation, under 4.01-
1(a), for the limitation year.
4.09-3 "Annual addition" means for any limitation year the sum of
elective, matching, and employee after-tax contributions for the year. In
applying the limitations on annual additions, all employers that are statutory
affiliates as described under 2.01-2, with the adjustment provided in section
415(h) of the Internal Revenue Code, shall be considered a single employer.
4.09-4 If Employer maintains one or more other defined contribution
plans at any time, the annual additions under all such plans shall be combined
for purposes of applying the above limitations. For the purposes of 4.09-2(a)
only, any contribution to a separate account for post-retirement medical
benefits for a key employee under a funded welfare benefit plan shall be
considered such an annual addition.
4.09-5 If Employer maintains or has maintained one or more defined
benefit pension plans at any time, the following shall apply:
(a) The defined benefit fraction under all such plans combined
with the defined contribution fraction under this plan and all other
defined contribution plans currently or previously maintained by
Employer shall not exceed 1.0 for any individual.
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(b) The defined benefit fraction numerator shall be the
participant's projected annual normal retirement benefit. The
denominator shall be the maximum benefit under section 415(b)(1) of the
Internal Revenue Code, adjusted under (d).
(c) The defined contribution fraction numerator shall be the
sum of all annual additions for the participant since the plan's
inception. The denominator shall be the sum of the maximum annual
additions under section 415(c)(1) of the Internal Revenue Code for all
years of the participant's employment with Employer, adjusted under
(d).
(d) The denominators under (b) and (c) shall be the smaller of
the maximum percentage limitation amount times 1.4 or the maximum
dollar limitation amount times 1.25.
4.10 Adjustments to Satisfy Limits
4.10-1 If an annual addition for a participant would exceed the limit
in 4.09 as a result of allocation of forfeitures, a reasonable error in
estimating a participant's compensation, a reasonable error in determining the
amount of elective pre-tax contributions and employee after-tax contributions
that may be made under the limits of 4.09, or under other limited facts and
circumstances that justify the availability of these rules, then the excess will
be disposed of in accordance with Treasury Regulation section 1.415-6(b)(6) as
follows:
(a) Any unmatched employee after-tax contributions, matched
employee after-tax contributions, unmatched elective pre-tax
contributions and matched elective pre-tax contributions, in that
order, to the extent they would reduce the excess amount, shall be
distributed, with related earnings, to the participant.
(b) If after action under (a) an excess amount still exists and
the participant is covered by the plan at the end of the limitation
year, the excess amount in the participant's account shall be used to
reduce employer matching contributions (including any allocation of
forfeitures) for such participant in the next limitation year, and each
succeeding limitation year if necessary.
(c) If after action under (b) an excess amount still exists and
the participant is not covered by the plan at the end of a limitation
year, the excess amount shall be held unallocated in a suspense
account. The suspense account shall be applied to reduce employer
matching contributions, and corresponding amounts will be allocated,
with respect to all remaining participants in the next limitation year,
and each succeeding limitation year if necessary.
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(d) If a suspense account is in existence at any time during a
particular limitation year, all amounts in the suspense account must be
allocated and reallocated to participants' accounts before any employer
contributions may be made to the plan for that limitation year. Excess
amounts may not be distributed to participants or former participants.
4.10-2 If an annual addition for a participant would exceed the limit
in 4.09 because of any other tax qualified retirement plan of an Employer, the
annual additions under this plan shall be disposed of under 410-1 as necessary
to meet the limit, in the following order:
(a) Unmatched employee after-tax contributions.
(b) Unmatched elective pre-tax contributions.
(c) Matched employee after-tax contributions.
(d) Matched elective pre-tax contributions (together with
related matching contributions) under this plan.
(e) Benefits under any defined benefit pension plan.
(f) Annual additions under any defined contribution plan other
than this plan.
4.11 Time of Payment
4.11-1 Employer shall make payments to the Trustee to cover all
contributions as follows:
(a) Subject to (b) and (c), an elective contribution or
employee after-tax contribution shall be paid as soon as the amount can
reasonably be identified and separated from Employer's other assets.
Payment shall in any event be made no later than the 15th business day
of the month following the month in which the participant would
otherwise have received the amount deducted from pay on account of the
contribution.
(b) All contributions for a plan year shall be paid within the
regular or extended time for filing Employer's federal income tax
return for the year.
(c) In any event, all elective and matching contributions for a
plan year shall be paid no later than 12 months after the end of the
plan year.
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4.11-2 Any amount that is paid after the end of the year within the
time allowed under 4.11-1(b) shall be treated as though paid on the last day of
the year.
ARTICLE V
Participants' Accounts
5.01 Participants' Accounts
5.01-1 The Committee shall keep such separate accounts for each
participant as may be necessary to administer the plan properly.
5.01-2 At least annually, the Committee shall furnish each participant
a statement showing contributions, vesting and account balances.
5.02 Valuations and Adjustments
5.02-1 As of each valuation date under 1.01-3, the trust funds shall
be valued and the values allocated as follows:
(a) The Trustee shall value the pooled investment funds at
their fair market values and report the values to the Committee. The
Committee and Trustee may establish procedures for unit valuation of
investment fund assets.
(b) The Committee shall adjust the pooled fund account values
as of the valuation date, with appropriate adjustments for any interim
contributions or distributions since the last valuation date.
5.02-2 If balance-forward valuation is used under 1.01-3, whenever the
Committee finds it desirable to avoid a material distortion in benefits or
otherwise to administer the plan properly, it may do either of the following:
(a) Call for a special valuation.
(b) Defer pending distributions until after the next regular
valuation date.
5.03 Rollovers
5.03-1 The Committee may approve rollover of funds from a tax
qualified retirement plan or Individual Retirement Account (IRA) if all of the
following criteria are met:
(a) The individual rolling over the funds is a Qualified
Employee of Employer at the time the rollover is made.
(b) The funds come from either of the following:
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(1) An IRA that holds only amounts rolled over from one or
more total distributions or eligible rollover distributions
from other qualified plans and related earnings.
(2) An eligible rollover distribution from a qualified
plan.
(c) The funds are paid to this plan within 60 days after
distribution from the other plan or IRA.
(d) The funds do not include any employee contributions.
(e) The Committee finds that the rollover will not impair the
qualified status of this plan.
5.03-2 A rollover shall be accounted for in such manner as the
Committee shall decide.
5.04 Transfers Between Plans
5.04-1 The Committee may approve a transfer from this plan directly
into another qualified plan if all of the following conditions are met:
(a) The account is vested and currently distributable under
this plan.
(b) The individual involved requests that the account be
distributed directly to the other plan in which the individual may
participate.
(c) The plan administrator of the receiving plan has agreed to
accept the funds and has affirmed that the receiving plan is authorized
to accept the transfer.
5.04-2 The Committee may direct the Trustee to accept funds
transferred directly to this plan from another qualified plan if the following
conditions are met:
(a) The individual involved has requested the transfer and is a
Qualified Employee of Employer at the time the transfer is made.
(b) The Committee determines that the transfer will not impair
the qualified status of this plan.
(c) Subject to (d) below, none of the amount transferred is
subject to any distribution requirement that is inconsistent with the
distribution options in this plan.
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(d) The transfer would not satisfy (c) above except that it is
an elective transfer under Treasury Regulation section 1.411(d)-4 Q&A-3
and the requirements of the regulation are met.
5.04-3 An amount received by direct transfer shall be accounted for in
such manner as the Committee shall decide.
5.05 In-Service Withdrawals
5.05-1 Before termination of employment, a participant may withdraw
from the plan under (a) and (b), subject to (c) and (d), as follows:
(a) Once a plan year, a participant may withdraw from the
following accounts (inclusive of earnings) without establishing
hardship:
(1) Unmatched employee after-tax contributions.
(2) Matched employee after-tax contributions.
(3) Rollover contributions.
(4) Unrestricted transfers. An unrestricted transfer is a
plan-to-plan transfer under 5.04-2 that is not a restricted
transfer. A restricted transfer is one that is attributable to
legally required withdrawal restrictions under the transferor
plan and is not an elective transfer under 5.04-2(d). If part
of a transfer is restricted, the limitations in this provision
shall apply only to the restricted part..
(5) Employer matching contributions to the extent vested,
except that participants under age 59 1/2 may not withdraw
employer matching contributions held by the plan less than two
full calendar years.
(6) Unmatched elective pre-tax contributions, if the
participant is totally and permanently disabled or at least age
59 1/2.
(7) Unmatched elective pre-tax contributions, if the
participant is totally and permanently disabled or at least age
59 1/2.
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(b) A participant may withdraw from the following accounts to
the extent approved by the Committee because of financial hardship
under 5.05-2:
(1) Unmatched employee after-tax contributions (inclusive
of earnings).
(2) Matched employee after-tax contributions (inclusive of
earnings).
(3) Rollover contributions (inclusive of earnings).
(4) Unrestricted transfers (inclusive of earnings).
(5) Employer matching contributions (inclusive of
earnings), to the extent vested.
(6) Unmatched elective pre-tax contributions (exclusive of
earnings).
(7) Matched el ective pre-tax contributions (exclusive of
earnings).
(c) Withdrawals shall not be allowed from the following:
(1) Funds necessary to provide adequate security for a loan
under 5.06, except on default of a loan under 5.06-3(d).
(2) Restricted transfer accounts, such as funds (including
post-transfer earnings) attributable to amounts transferred
from a money purchase pension plan, excluding amounts
attributable to any after-tax employee contributions included
in the transfer.
(d) The order of priority among accounts for withdrawal shall
be as listed in (a) or (b), as applicable, unless the Committee
establishes a different priority by administrative procedure
consistently applied. The Committee's withdrawal procedures may impose
restrictions on timing or frequency of withdrawal to the extent related
to reasonable administrative needs, but may not waive withdrawal
restrictions stated above or impose other restrictions on withdrawal.
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5.05-2 "Financial hardship" means a participant's immediate and heavy
financial need that cannot be met from other reasonably available resources and
is caused by one or more of the following:
(a) Medical expenses under Internal Revenue Code section 213(d)
of the participant, the spouse or a dependent under Internal Revenue
Code section 152.
(b) The cost of tuition for post-secondary education and
related educational fees and room and board for the next 12 months for
the participant, the participant's child or spouse or a dependent under
Internal Revenue Code section 152.
(c) The cost of buying the principal residence of the
participant, not including making mortgage payments.
(d) The cost of preventing eviction from or foreclosure on the
principal residence of the participant.
(f) Funeral expenses relating to death of a participant's
spouse or child or another family member who is a dependent of the
participant under Internal Revenue Code section 152.
(g) In addition to the expenses stated above, but only for
purposes of withdrawals other than from elective pre-tax contribution
accounts, the following other expenses if they impose a severe present
or impending financial strain on the participant or cause the
participant or the participant's family to be endangered by present or
impending want or privation or other harsh financial circumstances:
(1) Extraordinary expenses incurred on account of accident,
sickness, disability or other emergency that affects the
participant or a dependent of the participant under Internal
Revenue Code section 152.
(2) Repair or major improvement of the participant's
principal residence.
5.05-3 Withdrawals shall be carried out in accordance with the
following rules:
(a) The withdrawal date shall be fixed by the Committee after
application by the participant under Committee procedures. If the
participant is married when the withdrawal is requested, the
application must have the spouse's written consent.
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(b) The application shall include a signed statement of the
facts causing financial hardship and any other information required by
the Committee. The statement shall include confirmation that the
participant has withdrawn all funds available from all sources
reasonably available, including allowed withdrawals under this plan,
and has borrowed from all sources reasonably available, including
participant loans under this plan, and has liquidated all assets
reasonably available to meet the financial need. The Committee may rely
on the signed statement of facts and accompanying documents, if any, as
conclusive evidence of a participant's financial need.
(c) The Committee may require a minimum advance notice, may
limit the amount and frequency of withdrawals and may delay payment of
an approved withdrawal to permit a special valuation if balance-forward
valuation is used under 1.01-3, to permit liquidation of necessary
assets or for other pertinent reasons.
(d) Withdrawals shall be drawn pro rata from all investment
funds holding assets for the participant's account(s).
(e) Accounts shall be adjusted as of the last valuation date
under 1.01-3 on or before the withdrawal.
5.06 Loans to Participants
5.06-1 The Committee may direct the Trustee to lend money to a
participant or beneficiary as follows:
(a) The Committee shall make loans available to participants
and beneficiaries who are parties in interest under 3(14) of the
Employee Retirement Income Security Act of 1974 (ERISA) on a reasonably
equivalent basis as follows:
(1) The borrower must establish an intention and a
reasonably certain capacity to repay the loan and interest when
due.
(2) A beneficiary shall not be eligible for a loan unless
all events needed to make the beneficiary's rights
unconditional have occurred.
(3) A loan shall be available for not less than $1,000 and
not more than the limits specified in 5.06-4.
(4) Loans shall not be made available to highly compensated
employees in an amount greater than
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the amount available to other employees expressed as a
percentage of the account, subject to (3) above.
(5) A borrower may have only one loan at a time. If more
than one loan is transferred into this plan by direct transfer,
that will not violate the one loan limit.
(b) The loan date shall be fixed by the Committee after
application by the borrower under Committee procedures.
(c) Receipt of a loan shall constitute consent by the
participant to withdrawals under 5.06-3 before normal retirement age.
If the participant is married when the loan is made, the application
must have the spouse's written consent in accordance with applicable
law.
(d) A loan shall be held as a separated investment for the
account of the borrower and not as an asset of the pooled trust fund. A
participant's loan shall be drawn pro rata from all investment funds
holding assets for the participant's account(s). Repayments shall be
deposited in accordance with the participant's current fund
selection(s) for elective pre-tax contributions and/or employee after-
tax contributions.
(e) Reasonable fees may be charged to the borrower for making
and administering the loan. Such fees shall be paid to the Company and
shall be charged directly to the borrower as a condition of making and
continuing the loan. The fees shall be charged against the borrower's
account unless other arrangements are made by the Committee for payment
of the fees.
5.06-2 Loans shall be secured as follows:
(a) A loan shall be secured by the account balances as follows:
(1) A loan shall not be secured by amounts attributable to
elective pre-tax contributions as defined in 4.02 if the loan
is fully secured by other vested account balances.
(2) A loan shall be fully secured by other vested account
balances if the aggregate of such account balances exceeds the
aggregate of all outstanding loan balances when the loan is
made or the security is being identified.
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(3) The loan shall be held as a segregated investment, not
as part of the accounts that secure the loan. Any withdrawals
on default shall be credited to or charged against such
accounts in accordance with the hierarchy for account charges
established in accordance with Committee procedures. Segregated
loan accounts may not be withdrawn under 5.05.
(b) All loans shall also be secured by an assignment of current
pay of the borrower. Termination of the employment producing the pay or
other termination of the assignment of current pay shall constitute a
default unless 5.06-6(a) or (b) is satisfied.
(c) The Committee may require or accept other collateral in its
discretion.
5.06-3 If a loan is not repaid when due or otherwise is in default,
the following shall apply:
(a) The Committee shall have the option to declare the entire
principal and interest immediately due and payable.
(b) The Committee may instruct the Trustee to withdraw from the
participant's vested accounts the amount of the loan and interest plus
any applicable withholding, or foreclose on any other collateral, or
both, as provided below.
(c) After age 59 1/2 or termination of service, all or part of
a participant's entire vested plan interest may be withdrawn on
default.
(d) During employment before age 59 1/2, only the following
portions of a participant's vested plan interest may be withdrawn on
default:
(1) Elective pre-tax contributions plus earnings credited
through December 31, 1988 but not later earnings and restricted
transfers of such contributions and earnings, to the extent the
Committee finds a financial hardship under 5.05-2. A restricted
transfer is one that is attributable to amounts that were
subject to legally required withdrawal restrictions under the
transferor plan and is not an elective transfer under 5.04-
2(d).
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(2) Amounts attributable to employee after-tax
contributions, rollovers and unrestricted transfers or vested
amounts attributable to matching contributions.
(e) Withdrawals will be charged as the Committee may decide
against different accounts to which the participant's contributions
have been allocated.
5.06-4 Unless the Committee imposes lower limits on a
nondiscriminatory basis, a loan may be made so long as it does not exceed the
lesser of the following at the time the loan is made:
(a) 50 percent of the participant's vested accounts.
(b) $50,000, reduced by any principal payments made on plan
loans in the 12 months preceding the date of the loan.
5.06-5 The Committee shall fix the terms of payment and interest rate
for loans under the following rules, treating all persons similarly situated
alike:
(a) All loans shall be evidenced by negotiable promissory notes
payable to the Trustee. The maker shall be personally liable on the
note regardless of any security.
(b) The interest rate shall be a reasonable rate fixed by the
Committee based on the locally prevailing commercial lending rates at
the time for comparable loans.
(c) Subject to (d), loans must be payable in not more than five
years, unless used to acquire the principal residence of the
participant.
(d) Loans must be amortized by substantially level principal
and interest payments made no less often than quarterly over the loan
term. Prepayments in full shall be allowed without penalty. Partial
prepayments shall not be allowed.
5.06-6 Regardless of the payment terms, the following rules shall
apply:
(a) A loan made to an employee-participant shall be due and
payable in full three months after the participant is no longer
employed by the Company or an affiliate unless the borrower continues
to be a party in interest.
(b) A loan shall be in default and 5.06-3 shall apply if the
pay assignment lapses by termination of employment or is canceled,
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and a new payment arrangement satisfactory to the Committee is not in
place before the next payment is due.
(c) If a participant or beneficiary applies for a distribution
or withdrawal of assets that secure an outstanding loan, the
distribution or withdrawal shall, to the extent necessary to maintain
adequate security, be made by holding back a corresponding amount to
cover the current balance of the loan and accrued interest.
ARTICLE VI
Retirement Benefits
6.01 Entitlement; Retirement Dates; Participation After Mandatory Benefit
Starting Date
6.01-1 A participant shall be entitled to benefits on retirement or on
reaching the mandatory benefit starting date under 6.04-2.
6.01-2 Retirement shall occur on termination of employment after
reaching one of the following dates:
(a) Normal retirement date, which shall be age 65.
(b) Deferred retirement date, which shall be any day after
normal retirement date.
6.01-3 Commencing benefits under 6.04-2 while still employed shall not
constitute retirement and shall not prevent continued participation in
contributions. Contributions allocated to the account of a participant after
the distribution date under 6.04-2 shall be distributed as soon as practicable,
and in any case not later than the end of the calendar year after the calendar
year that includes the allocation date.
6.01-4 If a person entitled to receive benefits is rehired, the
following shall apply:
(a) If payment had not commenced, the benefit shall not be paid
until later termination of employment except as provided in 6.04-2.
(b) When the participant later terminates, the amount and form
of the benefit shall be redetermined.
(c) Subject to 6.04-2, a participant who was receiving
installments may elect at any time to stop benefits or to reduce the
size of installments.
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6.02 Amount and Form of Benefit
6.02-1 On retirement, the benefit shall be based on the participant's
entire account, which shall be 100 percent vested under 8.01-2, adjusted through
the last valuation date under 1.01-3 on or before distribution.
6.02-2 Benefits shall be paid in one combination of the following ways
as selected under 6.03-4, subject to 6.04:
(a) By lump sum payment.
(b) By payment in installments fixed by the recipient subject
to 6.04 if the amount has ever exceeded $3,500, installments shall
normally be substantially equal over the period of payout. Variations
may occur because of changes in the account balances caused by trust
investment results.
A participant receiving installments may elect to discontinue
installments and receive the remaining balance in a lump sum.
6.02-3 If the participant's accounts are distributed before the final
allocation of contributions is made, a final payment shall be made to the
participant promptly after allocation.
6.02-4 If the participant dies before payment of the entire account,
the balance shall be paid as a death benefit under Article VII.
6.03 Application for Benefits; Time of Payment
6.03-1 A participant or beneficiary eligible for benefits must apply
in writing under 9.04 as follows:
(a) Application shall be made on a form prescribed by the
Committee.
(b) Application shall be made after receipt of the explanation
in 6.03-2(c) and within 90 days before benefits are to start.
6.03-2 Subject to 6.04, retirement benefits shall be paid under the
following rules:
(a) Subject to (b), the Committee shall direct the Trustee to
start benefits as soon as reasonably possible after retirement whether
or not an application is filed if either of the following applies:
(1) The distributable amount has never been over $3,500.
(2) The participant has reached age 70 1/2.
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(b) The Committee may delay payment of benefits for a
reasonable period necessary to process payment but in no event beyond
60 days after the latest of the following:
(1) The end of the plan year of retirement.
(2) The date the amount is known.
(3) The date an application is received.
(c) If the distributable amount has ever exceeded $3,500, the
Committee shall, between 30 and 90 days before benefits are to start,
give the participant an explanation of the distribution options and the
right to defer payment until the mandatory benefit starting date.
(d) The Committee shall give the participant or other eligible
recipient a written explanation of the following between 30 and 90 days
before benefits start:
(1) The right to have a direct rollover under 6.03-4, if
applicable.
(2) The applicability of mandatory withholding if a direct
rollover could be elected under 6.03-4 and is not.
(3) The applicable rules on rollover and taxation of the
distribution as required by section 402(f) of the Internal
Revenue Code.
(4) The right to defer any benefit election for at least 30
days.
(e) If the explanations in (d) are given and the recipient
makes the required elections within 30 days, the recipient may request
immediate distribution and waive the balance of the 30-day period.
6.03-3 If the date for payment under 6.04-2 has passed and the
Committee has not located the participant or beneficiary, the Committee shall
distribute the benefit into an interest-bearing account in a financial
institution in the name of the participant or beneficiary. This shall
constitute a lump sum distribution to which regular tax reporting and
withholding requirements shall apply.
6.03-4 An eligible recipient of an eligible rollover distribution may
elect before a benefit is paid to have the benefit distributed by a direct
rollover into an eligible retirement plan or IRA and the following shall apply:
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(a) The recipient shall furnish the Committee sufficient
information to identify the eligible retirement plan or IRA and the
fund holder to whom the direct rollover should be paid.
(b) "Eligible retirement plan" means an individual retirement
account or annuity, an employer-sponsored qualified retirement trust,
or an employer-sponsored qualified annuity plan.
(c) "Eligible rollover distribution" means any distribution
from the plan other than the following:
(1) One of a series of substantially equal periodic
payments over life, life expectancy, or a period of 10 years or
more.
(2) A payment required by the minimum distribution rules
under 6.04-1.
(3) Return of post-tax contributions.
(d) "Eligible recipient" means the participant, the spouse of a
deceased participant or a spouse or former spouse who is an alternate
payee under a qualified domestic relations order.
6.03-5 The participant or beneficiary shall select the form of payment
in the application. Absent a selection, benefits shall be paid in a single lump
sum.
6.04 Distribution Rules
6.04-1 Benefits shall be paid in accordance with the following
overriding rules as provided in Treasury Regulation sections 1.401(a)(9)-1 and -
2.
6.04-2 Payments to a participant shall be subject to the following:
(a) Payments shall start by the April 1 following the calendar
year in which the participant has reached age 70 1/2 and either is a 5
percent owner under 416(i) of the Internal Revenue Code or has
terminated employment.
(b) After the mandatory starting date in (a), the following
shall apply:
(1) Benefits shall be paid over a period not longer than
the life expectancies of the participant and any designated
beneficiary. Life expectancies shall not be recalculated after
initial determination
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(2) If payments are by installments with a non-spouse
designated beneficiary who is more than 10 years younger than
the participant, the joint life expectancy shall be calculated
based on the participant's age and a beneficiary 10 years
younger.
6.04-3 Payments after a participant's death shall be subject to the
following:
(a) If the participant was past the mandatory benefit starting
date under 6.04-2, payments must continue at least as quickly as under
the schedule in effect at death.
(b) If (a) does not apply, payments may be made over a period
not longer than the beneficiary's life expectancy.
(c) Payments to a beneficiary who is a natural person shall
start by the end of the next calendar year after the calendar year of
death.
(d) If the beneficiary is not a natural person, the entire
benefit shall be paid within five years after death.
ARTICLE VII
Benefits on Death or Disability
7.01 Benefits on Death
7.01-1 A deceased participant's vested account, adjusted to the last
valuation date under 1.01-3 before payment and including any final allocation
for the year of death, shall be paid as a death benefit to the beneficiary. If
death occurs before employment terminates, the participant's account shall be
fully vested.
7.01-2 Death benefits shall be paid in a form and at a time selected
by the recipient, subject to 6.04. Application shall be made under 6.03. If
the Committee has not located the beneficiary within the time for payment, 6.03-
3 shall apply.
7.02 Benefits on Disability
7.02-1 A participant whose employment ends because of disability shall
be fully vested and entitled to receive benefits under Article VIII.
7.02-2 A disabled participant is one who as a result of illness or
injury suffers from a condition of mind or body that qualifies the participant
for total, permanent disability benefits under Social Security. The Committee
shall determine the existence of disability and
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<PAGE>
may have the participant examined by and rely on advice from a medical examiner
satisfactory to the Committee in making the determination.
7.02-3 If the participant notifies the Committee in writing that
benefits after disability would reduce any other disability benefit, the
Committee shall defer payment until the other benefit stops, subject to 6.04-2.
7.03 Designation of Beneficiary
7.03-1 Each participant shall file a designation of beneficiaries with
the Committee as follows:
(a) The designation shall name a specific beneficiary or
beneficiaries, which may include a trust. The beneficiaries may be
changed from time to time in accordance with these provisions.
(b) A designation by a married participant of a beneficiary
other than the surviving spouse shall not be effective unless either of
the following applies:
(1) The spouse executes a consent in writing that
acknowledges the effect of the designation and is witnessed by
a plan representative or notary public.
(2) The consent cannot be obtained because the spouse
cannot be located or because of other circumstances provided by
applicable regulations.
(c) A determination in good faith by the Committee that (b) has
been complied with shall be final and binding if the Committee has
exercised proper fiduciary care in making the determination.
(d) The designated beneficiary or other recipient described
below shall receive any residual benefit after death of a participant.
7.03-2 If the participant's marital status changes after the
participant has designated a beneficiary, the following shall apply, subject to
any applicable qualified domestic relations order under 12.07-2:
(a) If the participant is married at death but was unmarried
when the designation was made, the designation shall be void unless the
spouse is the beneficiary or the spouse consents to the designation in
the manner prescribed above.
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<PAGE>
(b) If the participant is unmarried at death but was married
when the designation was made, the benefit shall be paid as though the
former spouse had predeceased the participant.
(c) If the participant was married when the designation was
made and is married to a different spouse at death, the designation
shall be void unless the new spouse consents to it in the manner
prescribed above.
7.03-3 If a beneficiary dies after the death of a participant but
before full distribution to the beneficiary, any benefit to which the
beneficiary was entitled shall be paid to the estate of the deceased
beneficiary.
7.03-4 The following shall apply to any part of a benefit as to which
no valid designation of beneficiary is in effect at death:
(a) Subject to (b) and (c) below, the benefit shall be paid in
the following order of priority:
(1) To the participant's surviving spouse.
(2) To the participant's surviving children in equal
shares.
(3) To the participant's estate.
(b) If a beneficiary designated under (a) above or under 7.03-1
disclaims a benefit, the benefit shall be paid as though that
beneficiary had predeceased the participant.
(c) If a surviving spouse entitled to a benefit consents after
the participant's death to the participant's designation of another
beneficiary, the other beneficiary shall be a validly designated
beneficiary as to such benefit.
ARTICLE VIII
Benefits After Termination of Employment
8.01 Vesting
8.01-1 Amounts attributable to matching contributions shall be vested
as follows based on Years of Service under 3.02:
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<PAGE>
<TABLE>
<CAPTION>
Years of Service Percent Vested
<S> <C>
Less than 1 -0-
1 20%
2 40%
3 60%
4 80%
5 or more 100%
</TABLE>
8.01-2 A participant who, while employed by Employer, dies, becomes
disabled under 7.02-2 or becomes eligible for retirement shall be fully vested.
8.01-3 Amounts attributable to elective pre-tax contributions,
employee after-tax contributions and any rollovers and transfers shall be fully
vested at all times.
8.02 Distributable Amount
8.02-1 Absent rehire and restoration under 8.05, a participant whose
employment terminates for any reason other than retirement, disability under
7.02 or death shall receive only the vested interest under 8.01.
8.02-2 The amount to be forfeited shall be determined under 8.04-2(a).
The amount of the vested benefit shall be based on the last valuation under
1.01-3 on or before payment.
8.03 Payment of Benefits
8.03-1 Subject to 6.04-2, the participant shall specify the time of
payment of benefits after termination of employment in the application under
6.03, and the following shall apply:
(a) Subject to (b) below, the Committee shall direct the
Trustee to pay benefits as soon as reasonably possible, whether or not
an application has been filed, if either of the following applies:
(1) The distributable amount has never been over $3,500.
(2) The participant has reached age 70 1/2.
(b) The Committee may delay payment for a reasonable period
necessary to process payment but in no event beyond 60 days after the
latest of the following:
(1) The end of the plan year of reaching normal retirement
age.
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(2) The date the amount is known.
(3) The date an application is received.
(c) The Committee shall, between 30 and 90 days before benefits
are to start, give the participant or other eligible recipient the
following:
(1) An explanation of the distribution options and the
right to defer payment until normal retirement date.
(2) The explanations required by 6.03-2(d).
(d) If the amount has never been over $3,500, only the
information in (c)(2) is required.
(e) If the explanations in (c) are given and the recipient
makes the required elections within 30 days, the recipient may request
immediate distribution and waive the balance of the 30-day period.
(f) If a person entitled to receive benefits is rehired, the
benefit shall not be paid until later termination of employment except
as provided in 6.04-2. When the participant later terminates, the
amount of the benefit shall be redetermined.
8.03-2 If the date for payment has passed and the Committee has not
located the participant or beneficiary, the Committee shall distribute the
benefit under the procedure described in 6.03-3.
8.03-3 Benefits shall be paid in the form determined under 6.02.
Application shall be made under 6.03.
8.04 Forfeiture of Unvested Amounts
8.04-1 A participant's unvested accounts shall be forfeited at the
earlier of the following:
(a) The date on which both of the following are true:
(1) The participant is zero percent vested or the
participant has received a full distribution of the vested
portion of the participant's accounts.
(2) The participant is not then an employee.
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<PAGE>
(b) The end of the plan year in which the fifth Break-in-
Service Year ends.
8.04-2 Forfeitures shall be accounted for as follows:
(a) The amount forfeited shall be based on the balance in the
account as of the date on which forfeiture occurs.
(b) Forfeitures shall first be applied to restore prior
forfeitures under 8.05.
(c) Any forfeitures remaining after application under (b) shall
be applied to reduce future matching contributions or to pay plan
expenses.
8.04-3 A zero vested balance of a participant shall be treated as
though it is distributed immediately when employment terminates.
8.05 Restoration of Forfeited Amounts
8.05-1 If a participant is rehired before a five-year Break in Service
but after a forfeiture under 8.04-1(a) because of a distribution, the forfeited
amount, unadjusted for interim gains or losses, shall be subject to restoration
under 8.05-2, and 8.05-3 shall apply. If the rehire occurs after a five-year
Break in Service, no restoration shall occur.
8.05-2 An amount subject to restoration under 8.05-1 shall be credited
to the participant's matching contribution account, as applicable, as of the
first plan-year-end after rehire and satisfaction of the requirement of 8.05-4.
Amounts restored shall be derived first from forfeitures for the plan year of
restoration, and then from additional Employer contributions.
8.05-3 A rehired participant under 8.05-1 may repay the full amount
previously distributed from a partially vested account as follows:
(a) Repayment shall be made in a single lump sum. Partial
repayments shall not be allowed.
(b) Repayment may only be made while the participant remains
employed, and may not be made later than five years after rehire.
(c) Repaid amounts shall be fully vested and shall be accounted
for in such manner as the Committee may decide.
(d) Repayment cannot be made in whole or in part by rollover
from another plan or IRA.
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<PAGE>
8.05-4 In order to receive a restoration under 8.05-1 and 8.05-2, a
participant must apply for restoration within the time allowed for repayment
under 8.05-3. Repayment shall not be required.
8.06 Vesting After Rehire
8.06-1 A participant who is fully vested on termination of employment
shall remain fully vested after rehire.
8.06-2 The following rules shall apply in determining the future
vested balances for matching contributions after rehire of a participant who is
not fully vested:
(a) If the rehire occurs before a distribution is made from the
account or if the participant repays a distribution under 8.05-3 after
rehire, the following shall apply:
(1) Subject to (2), the participant's future vested balance
shall be determined by applying the vesting schedule to the
entire account.
(2) In no event shall the vested amount under (1) be less
than the amount repaid under 8.05-3, adjusted for investment
results after the date of the repayment.
(b) If the rehire occurs after a distribution is made from the
account and before the participant has a five-year Break in Service and
no repayment is made under 8.05-3, the participant's future vested
balance shall be determined by taking the following steps:
(1) Multiplying the participant's vesting percentage times
the sum of the current account balance and the amount
previously distributed.
(2) Subtracting the amount previously distributed.
(c) If the rehire occurs after the participant has a five-year
Break in Service, the following shall apply:
(1) Any unforfeited and undistributed residue of the
participant's partially vested account shall remain fully
vested and be carried as a separate account until the
participant's future contributions are fully vested.
(2) The forfeited balance shall not be restored.
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<PAGE>
ARTICLE IX
Plan Administration
9.01 Administrative Committee
9.01-1 The plan shall be administered by an Administrative Committee
of one or more persons appointed by the chief executive officer of the Company.
If no Committee has been appointed at the date of adoption of the plan, the
chief executive officer shall serve as the Committee until one is appointed.
The Committee shall have a Chair chosen from among its members and a secretary
who need not be a member. Minutes shall be kept of all proceedings of the
Committee. The Committee may act at a meeting by a majority vote of a quorum
present or without a meeting by action recorded in a memorandum signed by a
majority of all members. A majority of members shall constitute a quorum.
9.01-2 Any member of the Committee may resign on 15 days' notice to
the Company. The Company may remove any Committee member without having to show
cause. All vacancies on the Committee shall be filled as soon as reasonably
practicable. Until a new appointment is made, the remaining members of the
Committee shall have authority to act although less than a quorum.
9.01-3 The Trustee shall be given the names and specimen signatures of
the Committee members, the Chair and the secretary. The Trustee shall accept
and rely on the names and signatures until notified of a change.
9.01-4 Documents may be signed for the Committee by the Chair, the
secretary or other person designated by the Committee.
9.02 Committee Powers and Duties; Reports to Committee
9.02-1 The Committee shall interpret the plan and the related trust,
shall decide any questions about the rights of participants and their
beneficiaries and in general shall administer the plan and trust, including
carrying out all fiduciary and administrative responsibilities allocated to the
Committee under the plan and trust documents. Any decision by the Committee
shall be final and bind all parties. The Committee shall have absolute
discretion to carry out its responsibilities.
9.02-2 The Committee shall be the plan administrator under federal
laws and regulations applicable to plan administration and shall comply with
such laws and regulations. The Chair of the Committee shall be an agent for
service of process on the plan at the Company's address.
9.02-3 The Committee shall keep records of all relevant data about the
rights of all persons under the plan. The Committee shall determine eligibility
to participate and the time, manner, amount and recipient of payment of benefits
and the Service of any employee and shall instruct the Trustee on distributions.
Any person having an interest under the plan may consult the Committee at any
reasonable time.
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<PAGE>
9.02-4 The Committee may delegate all or part of its administrative
duties to one or more agents and may retain advisors to assist it. The
Committee may consult with and rely upon the advice of counsel who may be
counsel for an Employer. The Committee shall appoint any independent public
accountant required for the plan.
9.02-5 Each Employer shall furnish the Committee any information
reasonably requested by it for plan administration.
9.03 Company and Employer Functions
9.03-1 Except as provided in 9.03-2, all Company or Employer functions
or responsibilities shall be exercised by the chief executive officer of the
corporation, who may delegate all or any part of those functions.
9.03-2 The power to amend or terminate the plan and trust may be
exercised only by the Board of Directors of the Company, except as provided in
9.03-3.
9.03-3 The chief executive officer of the Company may amend the plan
to make technical, administrative or editorial changes on advice of counsel to
comply with applicable law or to simplify or clarify the plan. The chief
executive officer may delegate the amendment authority.
9.03-4 Matching contributions may be changed in accordance with 4.03
by the Board of Directors of the Company or by the chief executive officer of
the Company.
9.03-5 The Board of Directors of the Company or an Employer shall have
no administrative or investment authority or function. Membership on the Board
shall not, by itself, cause a person to be considered a plan fiduciary.
9.04 Claims Procedure
9.04-1 Any person claiming a benefit or requesting information, an
interpretation or a ruling under the plan shall present the request in writing
to the Committee Chair, who shall respond in writing as soon as practicable.
9.04-2 If the claim or request is denied, the written notice of denial
shall state the following:
(a) The reasons for denial, with specific reference to the plan
provisions on which the denial is based.
(b) A description of any additional material or information
required for review of the claim and an explanation of why it is
necessary.
(c) An explanation of the plan's claim review procedure.
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<PAGE>
9.04-3 Any person whose claim or request is denied or who has not
received a response within 30 days may request review by notice in writing to
the Committee. The original decision shall be reviewed by the Committee who
may, but shall not be required to, grant the claimant a hearing. On review,
whether or not there is a hearing, the claimant may have representation, examine
pertinent documents and submit issues and comments in writing.
9.04-4 The decision on review shall normally be made within 60 days.
If an extension is required for a hearing or other special circumstances, the
claimant shall be so notified and the time limit shall be 120 days. The
decision shall be in writing and shall state the reasons and the relevant plan
provisions. All decisions on review shall be final and bind all parties
concerned.
9.05 Distributions; Conflicting Claims
9.05-1 The Trustee may pay a participant's or a beneficiary's benefit
directly to the participant or beneficiary or to one or more of the following,
as directed by the Committee or chosen by the Trustee in the absence of
direction:
(a) A spouse or parent or to a child of legal age.
(b) A legal guardian or a person or entity having actual
custody of the person.
(c) A provider of maintenance, support or hospitalization.
9.05-2 A receipt from the recipient or canceled check shall be a
sufficient voucher for the Trustee. No accounting for the payment need be
obtained by Employer, the Trustee or the Committee.
9.05-3 If a dispute arises over a distribution, the Committee may
direct the Trustee to withhold payment until a court of competent jurisdiction
has ruled on the dispute or it is settled by the parties concerned.
9.05-4 A participant entitled to a distribution may elect to receive
in kind any asset held in a separated account for the participant under 10.01-3.
No transfer agent or other person involved need review the authority for the
transfer ore require an accounting of the application of the property
transferred.
9.06 Expenses
9.06-1 Members of the Committee shall not be compensated for services.
The Committee shall be reimbursed for all expenses.
9.06-2 The Company may elect to pay any administrative fees or
expenses and may allocate the cost among the Employers. Otherwise the expenses
and fees shall be paid from the plan assets. Expenses related to a particular
account, subaccount or an investment fund may be charged directly to that
account, subaccount or fund.
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9.07 Indemnity and Bonding
9.07-1 The Company shall indemnify and defend any plan fiduciary who
is an officer, director or employee of Employer from any claim or liability that
arises from any action or inaction in connection with the plan subject to the
following rules:
(a) Coverage shall be limited to actions taken in good faith
that the fiduciary reasonably believed were not opposed to the best
interest of the plan.
(b) Negligence by the fiduciary shall be covered to the fullest
extent permitted by law.
(c) Coverage shall be reduced to the extent of any insurance
coverage.
9.07-2 The Company shall indemnify and defend any plan fiduciary not
covered by 9.07-1 from any claim or liability arising from any action or
inaction based on information or direction from the Committee or an Employer
absent willful misconduct, gross negligence or bad faith.
9.07-3 Plan fiduciaries shall be bonded to the extent required by
applicable law for the protection of plan assets.
ARTICLE X
Investment of Trust Funds
10.01 Trust Fund
10.01-1 Benefits under this plan shall be funded through a trust
established by agreement between the Company and the Trustee. The Trustee shall
receive the contributions, hold and invest them, and pay benefits. The Trustee
shall accept the sums paid and need not determine the required amount of
contributions or collect any contribution not voluntarily paid.
10.01-2 Contributions shall be paid to the Trustee who shall pool them
for investment under 10.02, unless separated for participant-directed investment
under 10.01-3. The Trustee shall have no regard for the separate interests of
individual participants and shall rely completely on the Committee in paying
benefits.
10.02 Pooled Investment Funds
10.02-1 Plan assets shall be pooled and invested in one or more
investment funds established by the Committee. The Committee shall define
objectives for the funds, may establish new funds, combine two or more funds or
change the objectives of an existing fund.
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Investment funds may be established to invest in stock of the Company
or stock of an affiliate of the Company (Company Stock Fund), or stock of a
sponsor of a plan from which accounts and related assets are directly
transferred to this Plan (Predecessor Employer Stock Fund). No new deposits may
be made, however, in a Predecessor Employer Stock Fund.
10.02-2 The Trustee and any investment manager shall be informed of
any Committee action with respect to the investment funds. The Committee shall
inform all participants about the funds and the objectives of each.
10.02-3 If there are two or more investment funds offered, allocation
of the account of each participant among the funds shall be controlled as
follows:
(a) A participant shall allocate all accounts among the funds
in minimum increments established by the Committee and may elect to
transfer assets between funds. Allocations apply separately to existing
balances and to future contributions to the extent permitted under
procedures established by the Committee. If no allocation has been
made, the contributions shall be allocated to a money market fund.
(b) All allocations and elections to transfer shall be by
advance notice in accordance with notice requirements established by
the Committee. The Committee shall adopt rules for allocations and
transfers, which may restrict amounts and timing, to the extent
permitted by law. Transfers shall be made over a reasonable period to
allow orderly liquidation and reinvestment of the funds.
10.02-4 The rights of a participant under 10.02-3 may be exercised by
a beneficiary as follows:
(a) Subject to (c), the beneficiary must be currently entitled
to receive benefits on account of the death of a participant.
(b) If more than one person or entity is entitled to share the
benefit, the Committee may do any of the following:
(1) Designate one person or entity to make decisions
controlling the entire account.
(2) Divide the account and allocate the decision-making
power over separate portions to separate beneficiaries.
(3) Require the beneficiaries to designate one of
themselves or a third person to exercise the power for all of
them in such manner and on such terms as the Committee may
prescribe.
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(c) An alternate payee under a qualified domestic relations
order under 13.07 shall be considered a beneficiary for this purpose if
one of the following applies:
(1) The participant has died.
(2) The alternate payee's interest is held in a separate
account and the Committee elects to allocate to the alternate payee the
power of decision over the account.
ARTICLE XI
Amendment; Termination; Merger
11.01 Amendment
11.01-1 The Company may amend this plan and trust at any time by
written instrument as follows:
(a) Amendments shall be signed on behalf of the Company and
need not be signed by the Trustee.
(b) No amendment shall revest any of the plan assets in any
Employer or otherwise modify the plan or trust so that it would not be
for the exclusive benefit of eligible employees except as required or
permitted by applicable law and regulations.
(c) No amendment shall reduce any participant's accrued
benefit, or the vested percentage of that accrued benefit, as of the
date the amendment is adopted or is effective, whichever is later.
(d) No amendment shall increase the Years of Service required
for vesting without allowing each participant with at least three Years
of Service on the date the amendment is adopted a 60-day period to
elect in writing to the Committee to have the prior vesting schedule
continue to apply to future benefits under the plan. The 60-day
election period shall begin on the latest of the following:
(1) The date the amendment is adopted.
(2) The date the amendment is effective.
(3) The date the participant is provided written notice of
the amendment.
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11.01-2 Amendments may be made effective retroactively to the extent
permitted by applicable law and regulations.
11.02 Termination
11.02-1 The Company may terminate this plan or discontinue
contributions at any time. In the event of any total or partial termination or
discontinuance, the accounts of all affected participants shall be fully vested
and nonforfeitable. The Company may request a ruling from the Internal Revenue
Service on the effect of termination on the qualification of the plan.
11.02-2 Upon termination or discontinuance, the Company may continue
the trust to pay benefits as they mature or liquidate and distribute the
relevant portion of the trust fund as follows:
(a) If the Employer does not maintain a successor defined
contribution plan, the assets may be distributed to employees or
transferred to a qualified plan that is not a successor plan.
(b) If the Employer maintains a successor defined contribution
plan, the assets may be transferred to the successor plan. The assets
may not be distributed to employees before termination of employment
except as allowed under 5.05 for in-service withdrawals.
(c) The net assets transferred or distributed shall be
allocated by the Committee among participants and beneficiaries in
proportion to their interests. Any accumulated forfeitures shall be
covered by 12.09-2.
11.03 Treatment of Employers
11.03-1 All employees of all Employers, including the Company, shall
be treated as though employed by one Employer for purposes of determining total
or partial termination. For this purpose the plan shall be treated as one plan
and not as a collection of separate plans of the Employers. If some or all of
the employees of an Employer terminate employment, this shall be viewed in the
context of the whole plan to determine whether there has been a partial
termination and whether accelerated vesting is required.
11.03-2 An Employer may be excluded from the plan with respect to its
employees at any time by the Company. Such exclusion shall not automatically
constitute a termination or partial termination of the plan. Employees of the
excluded affiliate shall be treated as having terminated employment if the
affiliate ceases to maintain its affiliated status. Unless the Committee
determines or the Internal Revenue Service rules that the exclusion constitutes
a partial termination of the plan, the rights of the employees of the excluded
affiliate shall not become fully vested and nonforfeitable as a result of the
exclusion. If the excluded affiliate retains its affiliated status with the
Company, its employees shall continue to accrue Service for purposes of vesting,
but shall not be eligible to participate in contributions with respect to pay
after the effective date of the exclusion.
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11.04 Merger
If this plan is merged or consolidated with or the assets or
liabilities are transferred to any other plan or trust, the benefit that each
participant would receive if the plan terminated just afterwards shall be at
least as much as if it terminated just before.
ARTICLE XII
Miscellaneous Provisions
12.01 Information Furnished
12.01-1 The Trustee and the Committee may accept as correct and rely
on any information furnished by Employer. Neither the Trustee nor the Committee
may demand an audit, investigation or disclosure of the records of Employer.
12.01-2 The Committee may require satisfactory proof of age, marital
status or other data from a participant, spouse or beneficiary. The Committee
may adjust any benefit if an error in relevant data is discovered.
12.02 Applicable Law
This plan and trust shall be construed according to the laws of Texas
except as preempted by federal law.
12.03 Plan Binding on All Parties
This plan shall be binding upon the heirs, personal representatives,
successors and assigns of all present and future parties.
12.04 Not Contract of Employment
The plan shall not be a contract of employment between an Employer and
any employee, and no employee may object to amendment or termination of the
plan. The plan shall not prevent any Employer from discharging any employee at
any time.
12.05 Notices
Except as otherwise required or permitted under this plan or applicable
law, any notice or direction under this plan shall be in writing and shall be
effective when actually delivered or when deposited postpaid as first-class
mail. Mail shall be directed to the address stated in this plan or in a
statement of adoption or to such other address as a party may specify by notice
to the other parties. Notice to the Committee shall be sent to the Company's
address.
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12.06 No Implied Duties
The duties of the Trustee shall be those stated in the trust's
governing instrument(s), and no other duties shall be implied.
12.07 Benefits Not Assignable; Qualified Domestic Relations Orders
12.07-1 This plan is for the personal protection of the participants.
No vested or unvested interest of any participant or beneficiary may be
assigned, alienated, seized by legal process, transferred or subjected to the
claims of creditors in any way, except as provided in 12.07-2.
12.07-2 Benefits may be paid in accordance with a qualified domestic
relations order (QDRO) under section 414(p) of the Internal Revenue Code
pursuant to procedures established by the Committee. A benefit shall be paid to
an alternate payee at the earliest time permitted by the QDRO whether or not the
participant has terminated employment.
12.08 Nondiscrimination
The Company, each Employer and the Committee shall to the fullest
extent possible treat all persons who may be similarly situated alike under this
plan.
12.09 Nonreversion of Assets
12.09-1 Subject to 1.02-2 and the following paragraphs, no part of the
contributions or the principal or income of this plan shall be paid to or
revested in an Employer or be used other than for the exclusive benefit of the
participants and their beneficiaries.
12.09-2 Any forfeitures that have not been offset against matching
contributions or allocated because of the limit on annual additions when the
plan is terminated shall be returned to Employer.
12.09-3 A contribution may be returned to an Employer to the extent
that either of the following applies:
(a) The contribution was made by mistake of fact.
(b) A deduction for the contribution under 4.07-1 is
disallowed.
12.09-4 Return of contributions under 12.09-3 shall be subject to the
following:
(a) Any return must occur within one year of the mistaken
payment or disallowance of the deduction.
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(b) The returnable amount shall be reduced by a pro rata share
of any investment losses attributable to the contribution and by any
amounts that cannot be charged under (c) below.
(c) The amounts returned shall be charged to participants'
accounts in the same proportion as the accounts were credited with the
contribution. No participant's account shall be charged more than it
was previously credited.
ARTICLE XIII
Special Top-Heavy Plan Rules
13.01 Application of Rules
13.01-1 Contributions shall not be made to the plan for key employees
in any plan year if the contributions would cause the plan to become top heavy.
Contributions shall be adjusted under this provision by prospective, pro rata
reduction in the elective, employee after-tax and related matching contributions
otherwise allocable to the key employees' accounts for the year.
13.01-2 If the plan becomes top-heavy, the rules in this Article shall
apply and shall control over any other provisions with which they conflict.
Once effective, the top-heavy plan restrictions in 13.03 shall continue to apply
even if the plan ceases to be top-heavy.
13.02 Determination of Top-Heavy Status
13.02-1 The plan shall be top-heavy for a plan year if, as of the
determination date, the plan's top-heavy percentage for the year exceeds 60
percent. The top-heavy percentage is the present value of accrued benefits of
all key employees as a percentage of the present value of accrued benefits of
all key and non-key employees. For this purpose, employees means all current
and former employees other than the following:
(a) Non-key employees who were formerly key employees.
(b) Former employees who have performed no services for
Employer during the five-year period ending on the determination date.
13.02-2 The determination date for each plan year other than the first
plan year shall be the last day of the preceding plan year. For the first plan
year, the determination date shall be the last day of the plan year.
13.02-3 "Key employee" and "non-key employee" are defined in section
416(i) of the Internal Revenue Code.
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13.02-4 The following plans of Employers and affiliates shall be
considered as one plan for determining top-heaviness:
(a) Any plan in which a key employee participates.
(b) Any plan that must be considered in order for a plan in (a)
to meet the minimum coverage requirements for qualification under
Internal Revenue Code sections 401(a)(4) and 410.
13.02-5 For purposes of 13.02-1, the present value of a participant's
accrued benefit shall be the sum of the account balances as of the determination
date, subject to the following:
(a) Any later Employer contributions allocated as of that date
shall be excluded.
(b) Rollovers and transfers shall be included or excluded as
provided in 13.02-6 and 13.02-7.
13.02-6 Except as provided below, distributions and transfers made
within the plan year ending on the determination date or the four preceding plan
years shall be added back to the present value of accrued benefits as of the
determination date unless already counted. A transfer out of this plan, or a
distribution that is rolled over, shall not be added back if either of the
following applies:
(a) It goes to a plan maintained by Employer or an affiliate.
(b) It is not initiated by the employee.
13.02-7 A rollover or transfer shall be included only if one of the
following applies:
(a) It comes from a plan maintained by Employer or a statutory affiliate
under 2.01-2.
(b) It is not initiated by the employee.
13.03 Top-Heavy Plan Restrictions
13.03-1 The following provisions shall apply effective the first plan
year for which the plan is top-heavy and shall continue in effect even if the
plan ceases to be top-heavy.
13.03-2 Each participant who is a non-key employee employed at the end
of the year shall receive a minimum Employer contribution regardless of the
participant's Hours of Service for the year, or whether or not the participant
has elective pre-tax contributions during the year. The minimum contribution
(excluding elective pre-tax contributions) for a non-key employee shall be the
lesser of the following:
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(a) The largest combined elective and other Employer
contribution, expressed as a percentage of compensation as defined in
4.01-1(a), for any key employee for the year.
(b) 3 percent of such compensation.
13.03-3 The limitation in 4.08-5(d) shall be determined using 1.0 in
place of 1.25.
Adopted: July 31, 1997.
Company/1/ PG&E GAS TRANSMISSION,
TEXAS CORPORATION
By___________________________
Executed: _________, 1997
- ------------------------------
/1/ The Company is adopting the Plan in its capacity as lead sponsoring
employer. The Company's adoption of the Plan is on behalf of and applies with
respect to each adopting affiliate.
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EXHIBIT 5.2
August 14, 1997
PG&E Corporation
77 Beale Street
San Francisco, California 94177
Re: Registration Statement on Form S-8/
PG&E Gas Transmission, Texas Corporation
Savings Fund Plan
Ladies and Gentlemen:
At your request, I, Chief Counsel, Corporate for PG&E Corporation, a
California corporation (the "Company"), am rendering this opinion in connection
with the proposed issuance pursuant to the PG&E Gas Transmission, Texas
Corporation Savings Fund Plan (the "Plan"), of up to 1,000,000 shares of common
stock, no par value, of the Company ("Common Stock").
I, or other members of Pacific Gas and Electric Company's Law Department
acting under my direction and under my supervision, have examined instruments,
documents, and records which I deemed relevant and necessary for the basis of my
opinion hereinafter expressed. In such examination, I have assumed the
following: (a) the authenticity of original documents and the genuineness of all
signatures; (b) the conformity to the originals of all documents submitted to me
as copies; and (c) the truth, accuracy and completeness of the information,
representations and warranties contained in the records, documents, instruments
and certificates I have reviewed.
Based on such examination, I am of the opinion that the 1,000,000 shares of
Common Stock to be issued by the Company pursuant to the Plan are validly
authorized shares of Common Stock and, when issued in accordance with the
provisions of the Plan, will be legally issued, fully paid and nonassessable.
I express no opinion as to matters of law in jurisdictions other than the
State of California and federal law of the United States.
I hereby consent to the filing of this opinion as an exhibit to this
Registration Statement and to the use of my name wherever it appears in said
Registration Statement. In giving such consent, I do not consider that I am an
"expert" within the meaning of such term as used in the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission issued thereunder, with respect to any part of the Registration
Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
GARY P. ENCINAS
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent accountants, we hereby consent to the incorporation by reference
in this registration statement of our reports dated February 10, 1997 included
or incorporated by reference in PG&E Corporation's Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
San Francisco, California
August 14, 1997
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EXHIBIT 24.1
POWER OF ATTORNEY
Each of the undersigned Directors of PG&E Corporation hereby constitutes
and appoints BRUCE R. WORTHINGTON, LESLIE H. EVERETT, LINDA Y.H. CHENG, ERIC
MONTIZAMBERT, KATHLEEN RUEGER, GARY P. ENCINAS, CRAIG M. BUCHSBAUM, or KATHLEEN
M. HAYES his or her attorneys with full power of substitution to sign and file
with the Securities and Exchange Commission in his or her capacity as Director
of said corporation a Registration Statement on Form S-8 relating to 1,000,000
shares of said corporation's common stock and an indeterminate number of plan
interests issuable under the PG&E Gas Transmission, Texas Corporation Savings
Plan, and any and all amendments of said Registration Statement, including post-
effective amendments, and hereby ratifies all that said attorneys or any of them
may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have signed these presents this 16th day of July,
1997.
STANLEY T. SKINNER H.M. CONGER
ROBERT D. GLYNN, JR. MARY S. METZ
RICHARD B. MADDEN JOHN C. SAWHILL
SAMUEL T. REEVES WILLIAM S. DAVILA
ALAN SEELENFREUND DAVID M. LAWRENCE
C. LEE COX REBECCA Q. MORGAN
DAVID A. COULTER BARRY LAWSON WILLIAMS
RICHARD A. CLARKE CARL E. REICHARDT
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POWER OF ATTORNEY
ROBERT D. GLYNN, JR., the undersigned, the President and Chief Executive
Officer of PG&E Corporation, hereby constitutes and appoints BRUCE R.
WORTHINGTON, LESLIE H. EVERETT, LINDA Y.H. CHENG, ERIC MONTIZAMBERT, KATHLEEN
RUEGER, GARY P. ENCINAS, CRAIG M. BUCHSBAUM, or KATHLEEN M. HAYES his attorneys
with full power of substitution to sign and file with the Securities and
Exchange Commission in his capacity as the President and Chief Executive Officer
of said corporation a Registration Statement on Form S-8 relating to 1,000,000
shares of said corporation's common stock and an indeterminate number of plan
interests issuable under the PG&E Gas Transmission, Texas Corporation Savings
Plan, and any and all amendments of said Registration Statement, including post-
effective amendments, and hereby ratifies all that said attorneys or any of them
may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have signed these presents this 16th day of July,
1997.
ROBERT D. GLYNN, JR.
--------------------
ROBERT D. GLYNN, JR.
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POWER OF ATTORNEY
KENT M. HARVEY, the undersigned, Treasurer and Acting Chief Financial
Officer of PG&E Corporation, hereby constitutes and appoints BRUCE R.
WORTHINGTON, LESLIE H. EVERETT, LINDA Y.H. CHENG, ERIC MONTIZAMBERT, KATHLEEN
RUEGER, GARY P. ENCINAS, CRAIG M. BUCHSBAUM, or KATHLEEN M. HAYES his attorneys
with full power of substitution to sign and file with the Securities and
Exchange Commission in his capacity as Treasurer and Acting Chief Financial
Officer of said corporation a Registration Statement on Form S-8 relating to
1,000,000 shares of said corporation's common stock and an indeterminate number
of plan interests issuable under the PG&E Gas Transmission, Texas Corporation
Savings Plan, and any and all amendments of said Registration Statement,
including post-effective amendments, and hereby ratifies all that said attorneys
or any of them may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have signed these presents this 16th day of July,
1997.
KENT M. HARVEY
--------------
KENT M. HARVEY
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POWER OF ATTORNEY
CHRISTOPHER P. JOHNS, the undersigned, Vice President and Controller of
PG&E Corporation, hereby constitutes and appoints BRUCE R. WORTHINGTON, LESLIE
H. EVERETT, LINDA Y.H. CHENG, ERIC MONTIZAMBERT, KATHLEEN RUEGER, GARY P.
ENCINAS, CRAIG M. BUCHSBAUM, or KATHLEEN M. HAYES his attorneys with full power
of substitution to sign and file with the Securities and Exchange Commission in
his capacity as Vice President and Controller of said corporation a Registration
Statement on Form S-8 relating to 1,000,000 shares of said corporation's common
stock and an indeterminate number of plan interests issuable under the PG&E Gas
Transmission, Texas Corporation Savings Plan, and any and all amendments of said
Registration Statement, including post-effective amendments, and hereby ratifies
all that said attorneys or any of them may do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have signed these presents this 16th day of July,
1997.
CHRISTOPHER P. JOHNS
--------------------
CHRISTOPHER P. JOHNS
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POWER OF ATTORNEY
STEPHEN P. REYNOLDS, the undersigned, hereby constitutes and appoints BRUCE
R. WORTHINGTON, LESLIE H. EVERETT, LINDA Y.H. CHENG, ERIC MONTIZAMBERT, KATHLEEN
RUEGER, GARY P. ENCINAS, CRAIG M. BUCHSBAUM or KATHLEEN M. HAYES, and each of
them with power to act alone, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign a Registration Statement on
Form S-8 relating to 1,000,000 shares of common stock of PG&E Corporation and an
indeterminate number of plan interests issuable under the PG&E Gas Transmission,
Texas Corporation Savings Fund Plan, and any and all amendments of such
Registration Statement, including post-effective amendments, and to file the
same, together with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises hereof,
as fully to all intents and purposes as he might do or could do in person,
thereby ratifying and confirming all that said attorney-in-fact or his or her
substitutes may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have signed these presents this 14th day of August,
1997.
STEPHEN P. REYNOLDS
-------------------
STEPHEN P. REYNOLDS
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EXHIBIT 24.2
RESOLUTION OF THE
BOARD OF DIRECTORS OF
PG&E CORPORATION
July 16, 1997
WHEREAS, on January 23, 1997, and February 19, 1997, this Board of
Directors approved the acquisition of the natural gas related services business
of Valero Energy Corporation ("Valero Energy");
WHEREAS, it is contemplated that, after the closing of such acquisition,
the natural gas pipeline operations and related marketing activities of Valero
Energy will be conducted by an indirect subsidiary of this corporation to be
named "PG&E Gas Transmission, Texas Corporation"("P&E Texas";
WHEREAS, it is contemplated that PG&E Texas will offer eligible employees
of PG&E Texas and its participating affiliates participation in a tax-qualified
savings fund plan to be named the "PG&E Gas Transmission, Texas Corporation
Savings Plan" (the "Plan");
WHEREAS, it is desirable that this Plan offer participants an opportunity
to select a fund invested in common stock of this corporation on a continuing
basis; and
WHEREAS, in order to effectuate the purposes of the Plan, it is desirable
that 1,000,000 shares of the common stock of this corporation be authorized for
issuance under the Plan;
NOW, THEREFORE, BE IT RESOLVED that 1,000,000 shares of the common stock,
no par value, of this corporation are authorized for issuance under the Plan;
and
BE IT FURTHER RESOLVED that the officers and counsel of this corporation
are hereby authorized, jointly and severally, to take such action and execute
such agreements and documents on behalf of this corporation as may in their
judgment be necessary, convenient, or appropriate to carry out this resolution,
including the preparation, execution, and filing of a registration statement
under the Securities Act of 1933 with the Securities and Exchange Commission,
and any amendments or supplements thereto to effect the registration under said
Act of the 1,000,000 shares of common stock of this cooperation issuable under
the Plan; and
BE IT FURTHER RESOLVED that LESLIE H. EVERETT, LINDA Y.H. CHENG, ERIC
MONTIZAMBERT, KATHLEEN RUEGER, GARY P. ENCINAS, CRAIG M. BUCHSBAUM, and KATHLEEN
M. HAYES are hereby authorized, jointly and severally, to sign on behalf of this
corporation said
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registration statement and all amendments and supplements thereto to be filed
with the Securities and Exchange Commission covering said 1,000,000 shares of
common stock, and to do any and all acts necessary to satisfy the requirements
of the Securities Act of 1933 and the regulations of the Securities and Exchange
Commission adopted pursuant thereto with regard to the filing of said
registration statement and all amendments or supplements thereto; and
BE IT FURTHER RESOLVED that the Chairman of the Board, the Vice Chairman of
the Board, the President, the Chief Financial Officer, the Treasurer, the
Corporate Secretary, the Assistant Treasurer, or any Assistant Corporate
Secretary (the "Delegated Officers") are hereby authorized on behalf of this
corporation to sign applications to be made to the New York Stock Exchange, the
Pacific Stock Exchange, and any other stock exchange as may be deemed
appropriate by any of the Delegated Officers for listing thereon of said
1,000,000 additional shares of common stock of this corporation, and the
Delegated Officers are further authorized to make such changes therein, or in
any documents or agreements relative thereto, as may be necessary to conform
with requirements for listing, and to appear, if necessary, before the officials
of said Exchanges; and
BE IT FURTHER RESOLVED that the certificates representing said 1,000,000
shares of common stock may be authenticated by facsimile signature of the
Chairman of the Board and of the Secretary of this corporation; and
BE IT FURTHER RESOLVED that DAVID M. KELLY, Transfer Agent, is hereby
authorized and requested to countersign, by facsimile signature, and deliver in
accordance with directions of the Corporate Secretary of this corporation
fullpaid certificates representing whole shares only for all or any part of said
1,000,000 shares of the common stock of this corporation when such certificates
are duly executed and authenticated in the manner provided for in this
resolution and also to countersign, by facsimile signature, and deliver
additional fullpaid certificates representing all or any part of such stock,
upon receiving and canceling therefor fullpaid certificates representing a like
number of shares of the same class of stock duly assigned and transferred by the
registered owner or owners thereof, their successors, or assigns; and
BE IT FURTHER RESOLVED that the BNY WESTERN TRUST COMPANY, Registrar of
Transfers, is hereby authorized and requested to register and countersign, by
manual signature, fullpaid certificates, representing whole shares only, for all
or any part of said 1,000,000 shares of the common stock of this corporation,
when such certificates, executed and authenticated in the manner provided for in
this resolution and countersigned by the facsimile signature of its Transfer
Agent, are presented for registration; and also to register and countersign
additional new fullpaid certificates representing all or any part of such stock
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when executed, authenticated, and countersigned as above described and
accompanied by canceled old certificates representing a like number of shares,
in lieu of which such new certificates are to be issued; and
BE IT FURTHER RESOLVED that the officers, counsel, and employees of this
corporation, including said DAVID M. KELLY as Transfer Agent, and BNY WESTERN
TRUST COMPANY, as Registrar of Transfers, are hereby authorized and directed to
do any and all things necessary in order to issue and deliver said shares and
the certificates representing said shares.
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