California 95-1184800
______________________________ ______________________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 Ash Street
San Diego, California 92101
______________________________ ______________________________
(Address of Principal (Zip Code)
Executive Offices)
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Title of Amount Proposed Maximum Proposed Amount of Securities To To Be Offering Price Maximum Aggregate Registration Be Registered Registered per Share(1) Offering Price(1) Fee Common Stock, 9,000,000 $21.375 $192,375,000 $66,337 without par shares value |
(1)Estimated solely for the purpose of calculating the registration fee on the basis of the average of the high and low prices for the Registrant's Common Stock as reported on the New York Stock Exchange on May 24, 1995.
(2)Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.
This Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act of 1933.
*Item 2 . Registrant Information and Employee Plan Annual Information.
Item 3 . Incorporation of Certain Documents by Reference.
The following documents, filed by San Diego Gas & Electric Company (the "Registrant") or The Savings Plan of San Diego Gas & Electric Company (the "Plan") with the Securities and Exchange Commission (the "SEC"), are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1994; and (i) The Plan's Annual Report on Form 11-K for the year ended June 30, 1994 and (ii) the Plan's Transition Report on Form 11- K for the six-month period ended December 31, 1994;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since December 31, 1994; and
(c) The description of the Registrant's common stock, without par value (the "Common Stock"), contained in the Registrant's most recent registration statement for the Common Stock filed under the Exchange Act (File No. 1-3779), including any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by Registrant or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Regis- tration Statement and to be a part hereof from the date of filing of such documents.
Not applicable.
Item 5 . Interests of Named Experts and Counsel.
N. A. Peterson, Senior Vice President, General Counsel and Secretary of the Registrant, has provided an opinion regarding originally issued shares of the Registrant's Common Stock which may be issued in connection with the Plan. As of March 1, 1995, Mr. Peterson held beneficial ownership of 11,064 shares of the Registrant's Common Stock and was a participant in the Plan (with 23 shares of Common Stock credited to his Plan account).
Item 6 . Indemnification of Directors and Officers.
Section 317 of the Corporations Code of the State of California permits a corporation to provide indemnification to its directors and officers under certain circumstances. The Restated Articles of Incorporation and the Restated Bylaws of the Registrant eliminate the liability of directors for monetary damages to the fullest extent permissible under California law and provide that indemnification for liability for monetary damages incurred by directors, officers and other agents of the Registrant shall be allowed, subject to certain limitations, in excess of the indemnification otherwise permissible under California law. The Registrant maintains liability insurance, and the Registrant is also insured against loss for which it may be required or permitted by law to indemnify its directors and officers for their related acts.
Item 7 . Exemption from Registration Claimed.
Not applicable.
Item 8 . Exhibits.
See Index to Exhibits.
The Registrant undertakes that it has submitted or will
submit the Plan and any amendment thereto to the Internal
Revenue Service (the "IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify
the Plan under the Employee Retirement Income Security Act of
1974, as amended.
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:
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Regis- tration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the in- formation set forth in this Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registra- tion Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if 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 Exchange Act that are incorporated by reference in this 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 registra- tion 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 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 Exchange Act (and each
filing of the Plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this
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 SEC 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
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 autho- rized, in the City of San Diego, State of California, on May 30, 1995.
SAN DIEGO GAS & ELECTRIC COMPANY, a
California corporation
By: /s/ N. A. Peterson -------------------------- N. A. Peterson Senior Vice President, General Counsel and Secretary |
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:
Signature Title Date
--------- ----- ----
* /s/ Thomas A. Page Chairman of the Board, Chief May 30, 1995
- ---------------------------- Executive Officer and
Thomas A. Page President (Principal Executive
Officer)
* /s/ Stephen L. Baum Executive Vice President May 30, 1995
- ---------------------------- (Principal Financial Officer)
Stephen L. Baum
* /s/ Frank H. Ault Vice President and Controller May 30, 1995
- ---------------------------- (Principal Accounting Officer)
Frank H. Ault
*/s/ Richard C. Atkinson Director May 30, 1995
- ----------------------------
Richard C. Atkinson
* /s/ Ann Burr Director May 30, 1995
- ----------------------------
Ann Burr
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* /s/ Daniel W. Derbes Director May 30, 1995
*/s/Catherine T. Fitzgerald Director May 30, 1995
*/s/ Robert H. Goldsmith Director May 30, 1995
* /s/ William D. Jones Director May 30, 1995
* /s/ Ralph R. Ocampo Director May 30, 1995
* /s/ Thomas C. Stickel Director May 30, 1995
* By: /s/ N. A. Peterson
- ----------------------------
Attorney in Fact
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Pursuant to the requirements of the Securities Act of 1933, the members of the Savings Plan Committee of the Registrant have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on May 30, 1995.
* /s/ Frank H. Ault * /s/ Stephen L. Baum - ----------------------------- ------------------------------------ Frank H. Ault, Chairman Stephen L. Baum * /s/ Gary D. Cotton * /s/ Donald E. Felsinger - ----------------------------- ------------------------------------ Gary D. Cotton Donald E. Felsinger * /s/ Margot A. Kyd * /s/ Thomas A. Page - ----------------------------- ----------------------------------- Margot A. Kyd Thomas A. Page * By: /s/ N. A. Peterson - ----------------------------- Attorney in Fact |
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
*4.1 Registrant's Restated Articles of --
Incorporation (4/26/94).
**4.2 Registrant's Registered Bylaws --
(12/20/93).
5 Opinion of N. A. Peterson, 10
General Counsel of San Diego
Gas & Electric Company, regarding the
legality of original issue
securities to be offered.
24.1 Consent of Deloitte & Touche 11
LLP, Independent Auditors.
24.2 Consent of N. A. Peterson --
(included as part of Exhibit
5.).
25.1 Power of Attorney for Members of 12
the Board of Directors of San
Diego Gas & Electric Company.
25.2 Power of Attorney for Members of 13
the Savings Plan Committee of
San Diego Gas & Electric Company.
99.1 Savings Plan of Registrant. 14
_________
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* Incorporated by reference from Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1994.
** Incorporated by reference from Registrant's Annual Report on Form 10-K for the year ended December 31, 1993.
San Diego Gas & Electric Company
101 Ash Street
San Diego, CA 92101
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by San Diego Gas & Electric Company, a California corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933 relating to 9,000,000 shares of the Company's Common Stock and an indeterminate amount of interests issuable pursuant to the Savings Plan of the Company (the "Plan"), it is my opinion that such shares of the Common Stock of the Company as shall be original issue securities, when issued and sold in accordance with the Plan, will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5 to the Registra- tion Statement.
Very truly yours,
/s/ N. A. Peterson
10
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We consent to the incorporation by reference in this Registration Statement of San Diego Gas & Electric Company on Form S-8 of our reports dated February 27, 1995 (which reports contain an emphasis paragraph referring to the Company's consideration of alternative strategies for its 80 percent owned subsidiary, Wahlco Environmental Systems, Inc.), appearing in and incorporated by reference in the Annual Report on Form 10-K of San Diego Gas & Electric Company for the year ended December 31, 1994.
/s/ DELOITTE & TOUCHE LLP San Diego, California May 30, 1995 |
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each of the undersigned constitutes and appoints David R. Clark and Nad A. Peterson, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute a Registration Statement on Form S-8 and any and all amendments and supplements thereto under the Securities Act of 1933, as amended, with respect to the Saving Plan (the "Plan") of San Diego Gas & Electric Company, a California corporation ("SDG&E"), which Registration Statement shall register the offer and sale of additional common stock of SDG&E and Plan interests pursuant to the Plan, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Dated: April 25, 1995 /s/ Thomas A. Page
------------------------------
Thomas A. Page
Dated: April 25, 1995 /s/ Richard C. Atkinson
------------------------------
Richard C. Atkinson
Dated: April 25, 1995 /s/ Ann Burr
------------------------------
Ann Burr
Dated: April 25, 1995 /s/ Richard A. Collato
-------------------------------
Richard A. Collato
Dated: April 25, 1995 /s/ Daniel W. Derbes
-------------------------------
Daniel W. Derbes
Dated: April 25, 1995 /s/ Catherine T. Fitzgerald
-------------------------------
Catherine T. Fitzgerald
Dated: April 25, 1995 /s/ Robert H. Goldsmith
-------------------------------
Robert H. Goldsmith
Dated: April 25, 1995 /s/ William D. Jones
------------------------------
William D. Jones
Dated: April 25, 1995 /s/ Ralph R. Ocampo
-----------------------------
Ralph R. Ocampo
Dated: April 25, 1995 /s/ Thomas C. Stickel
-----------------------------
Thomas C. Stickel
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KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each of the undersigned constitutes and appoints David R. Clark and Nad A. Peterson, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute a Registration Statement on Form S-8 and any and all amendments and supplements thereto under the Securities Act of 1933, as amended, with respect to the Saving Plan (the "Plan") of San Diego Gas & Electric Company, a California corporation ("SDG&E"), which Registration Statement shall register the offer and sale of additional common stock of SDG&E and Plan interests pursuant to the Plan, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Dated: May 5, 1995 /s/ Frank H. Ault
------------------------
Frank H. Ault
Dated: May 4, 1995 /s/ Stephen L. Baum
------------------------
Stephen L. Baum
Dated: May 5, 1995 /s/ Gary D. Cotton
-------------------------
Gary D. Cotton
Dated: May 4, 1995 /s/ Donald E. Felsinger
---------------------------
Donald E. Felsinger
Dated: May 9, 1995 /s/ Margot A. Kyd
----------------------------
Margot A. Kyd
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Exhibit 99.1
April 21, 1995
TABLE OF CONTENTS
Page
----
1. DEFINITIONS 2
1.1 Accounts 2
1.2 Administrator 2
1.3 After-tax Basic Contributions 2
1.4 After-tax Optional Contributions 2
1.5 Basic Contributions 3
1.6 Beneficiary 3
1.7 Board of Directors 3
1.8 Code 3
1.9 Committee 3
1.10 Company 3
1.11 Company Matching Contributions 3
1.12 Compensation 4
1.13 Controlled Group 6
1.14 Effective Date 6
1.15 Election Effective Date 6
1.16 Eligible Basic Contribution Percentage 6
1.17 Eligibility Computation Period 7
1.18 Eligible Employee 7
1.19 Employee 7
1.20 Employment Commencement Date 8
1.21 Entry Date 8
1.22 ERISA 8
1.23 Family Member 8
1.24 Forfeitures 8
1.25 Funds 8
1.26 Highly Compensated Employee 8
1.27 Hour of Service 11
1.28 Invested Primarily in Stock 12
1.29 Leased Employee 12
1.30 Non-Highly Compensated Employee 13
1.31 Notice 13
1.32 One-Year Break in Service 13
1.33 Optional Contributions 13
1.34 Participant 14
1.35 Pension Plan 14
1.36 Period of Severance 14
1.37 Plan 14
1.38 Plan Year 14
1.39 Pretax Basic Contributions 14
1.40 Pretax Optional Contributions 15
1.41 Reemployment Commencement Date 15
1.42 Retirement 15
1.43 SDG&E 15
1.44 Service 15
1.45 Severance from Service 16
1.46 Stock 16
1.47 Termination of Service 17
1.48 TRESOP 17
1.49 Trust 17
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1.51 Trustee 17
1.52 Vested Right 17
1.53 Year of Service 17
2. PARTICIPATION 17
2.1 Entry into Plan 17
2.2 Enrollment in Plan 18
2.3 Plan Participation by Rehired Employees 18
2.4 Leaves of Absence: 19
2.5 Participation in the Plan 20
2.6 Transfer from TRESOP 20
3. BASIC AND OPTIONAL CONTRIBUTIONS 21
3.1 Individual Accounts 21
3.2 Pretax and After-tax Basic Contributions 21
3.3 Pretax and After-tax Optional Contributions 22
3.4 Limits on Pre-tax Basic and Optional
Contributions 23
3.5 Discontinuance of Pretax and After-tax Basic
Contributions 26
3.6 Discontinuance of Pretax and After-tax Optional
Contributions 27
3.7 Change of Pretax and After-tax Basic
Contributions 27
3.8 Change of Pretax and After-tax Optional
Contributions 28
3.9 Withdrawal of Basic and Optional Contributions
Accounts 28
3.10 Payment to Trustee 29
4. COMPANY MATCHING CONTRIBUTIONS; LIMITATION ON AFTER-TAX
CONTRIBUTIONS 29
4.1 In General 29
4.2 Allocation of Company Matching Contributions 29
4.3 Payment to Trustee 30
4.4 Limitation on Matching Contributions and
After-tax Contributions 30
5. INVESTMENTS 35
5.1 Investment of Contributions 35
5.2 Fund Transfers 36
5.3 Right to Diversify Accounts 36
5.4 Protection of Participants' Rights 37
5.5 Voting of Stock 38
5.6 Valuation of Funds 39
5.7 Valuation of Stock 39
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6. ALLOCATION LIMITATIONS 39
6.1 General Rule 39
6.2 Annual Additions 40
6.3 Participation in Additional Defined Contribution
Plan 42
6.4 Participation in Additional Defined Benefit Plan 42
6.5 Treatment of Excess Allocations 45
6.6 Limitation Compensation 46
7. VESTING OF COMPANY CONTRIBUTIONS 48
7.1 Vesting of Participant's Company Matching
Contributions Account 48
7.2 Vesting of Stock Dividends, Stock Splits and
Stock Rights 48
7.3 Participants and Beneficiaries Who Cannot Be
Located 49
7.4 Amendment to Vesting Schedule 49
8. WITHDRAWAL AND DISTRIBUTIONS OF ACCOUNTS 50
8.1 Withdrawal of Accounts During Employment 50
8.2 No Withdrawal of Company Matching Contributions
Account during Employment 54
8.3 Distribution At Or After Cessation of Employment 54
8.4 Form and Timing of Distributions 57
8.5 Distribution of Amounts Transferred from TRESOP 65
8.6 Distribution of Excess Deferrals 65
8.7 Distribution of Excess Contributions 66
8.8 Distribution of Excess Aggregate Contributions 68
8.9 Deferral of Payment of Benefits During Period of
Consideration of Domestic Relations Order;
Distribution to Alternate Payee Before Event
Permitting Distribution to Participant 70
8.10 Direct Rollovers. 71
9. ADMINISTRATION 73
9.1 Plan Administration 73
9.2 Employment of Advisers 74
9.3 Service in Several Fiduciary Capacities 74
9.4 Bonding 75
10. AMENDMENT OR TERMINATION OF PLAN 75
10.1 Amendment 75
10.2 Termination. Partial Termination or Complete
Discontinuance of Contributions 76
10.3 Non-reversion 76
11. TOP-HEAVY PLAN RULES 77
11.1 Definitions 78
11.2 Minimum Allocations 83
11.3 Change in Computation of Allocation and Benefit
Limitations 84
11.4 Special Vesting Schedule 85
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12.1 Plan Provisions to Govern 85
12.2 Rights in Trust Fund 85
12.3 Non-Alienation of Benefits 85
12.4 Treatment of Alternate Payee as Participant 86
12.5 Limitation on Rights of Employees; Employment
Relationship 86
12.6 Transfer of Assets of Plan 87
12.7 Claims Procedure 87
12.8 Gender and Number 88
12.9 Construction 89
12.10 Procedures if Participant or Beneficiary Cannot
be Located 89
12.11 Transfer from TRESOP 90
12.12 No Guarantee of Benefits 90
12.13 Rollover Contributions; Transfers From Other
Plans 90
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SAN DIEGO GAS & ELECTRIC COMPANY
SAVINGS PLAN
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San Diego Gas & Electric Company hereby amends and
restates this retirement plan effective December 1,
1994 for the benefit of its eligible Employees.
Effective December 1, 1994, the Plan is amended from a
profit sharing plan to a stock bonus plan and is
intended to comply with the provisions of Sections
401(a) and 401(k) of the Code and further is intended
to be an employee stock ownership plan (ESOP) under
section 409 of the Code. However, Section 8.1(c)
applies to former Employees as of December 1, 1994 and
to current Employees, other than those whose terms
of employment are governed by a collective bargaining
agreement, effective June 1, 1995. Section 8.1(c) does
not apply to current Employees whose terms of
employment are covered by a collective bargaining
agreement until such time as the Committee provides.
As of such time, the provisions of the Plan apply to
all Participants except when otherwise indicated. The
ESOP must be Invested Primarily in Stock, but is not
designed at this time to acquire such Stock on a
leveraged basis.
The purposes of the Plan are:
(a) To permit Participants to share in the
Company's earnings;
(b) To stimulate and maintain among Participants a sense of responsibility, cooperative effort and a sincere interest in the progress and success of the Company;
(d) To provide security for Participants by establishing a Plan under which each Participant may agree to make Pretax Contributions or After-tax Contributions to the Plan and to receive allocations of Matching Contributions, such contributions and the earnings thereon to be invested and accumulated to create a fund to benefit the Participant and his or her dependents in the event of the Participant's retirement, disability or death; and
(e) To enable Participants to acquire Stock.
2. DEFINITIONS
1.1 Accounts: A Participant's separate Accounts, as described in Section 3.1.
1.2 Administrator: A person appointed by the Company to handle administrative details in connection with the operation of the Plan.
1.3 After-tax Basic Contributions: A
Participant's voluntary contributions, as elected under
Section 3.2. After-tax Basic Contributions are matched
by Company Matching Contributions, as set forth in
Section 4.1.
1.4 After-tax Optional Contributions: A
Participant's voluntary contributions, as elected under
Section 3.3. Such contributions are not matched by
Company Matching Contributions.
1.6 Beneficiary: The person or persons designated by a Participant on a form provided by the Company to receive any distribution due under the Plan in the event of his or her death.
1.7 Board of Directors: The Board of Directors of San Diego Gas & Electric Company.
1.8 Code: The Internal Revenue Code of 1986, as amended.
1.9 Committee: The Savings Plan Committee, a group of at least three officers or directors (of any corporation adopting the Plan) appointed by the Board of Directors in accordance with Section 9.
1.10 Company: San Diego Gas & Electric Company,
and any other corporation which adopts this Plan, with
the approval of San Diego Gas & Electric Company.
Adopting Companies may elect to adopt the Plan without
the requirement that such Company make Matching
Contributions with respect to the Company's Employees.
The adopting Company may change its election at its
discretion with the approval of San Diego Gas &
Electric Company.
1.11 Company Matching Contributions: The
Company's contributions to the Plan which match
After-tax Basic Contributions made by a Participant and
Pretax Basic Contributions made on his or her behalf,
as set forth in Section 4.1. Such contributions may be
made in cash or shares of Stock, as determined by the
Company.
(a) Company Matching Contributions made for the Employee under this Plan and Company contributions for or on account of the Employee under any other employee benefit plan;
(b) Any deferred compensation paid or payable after termination of employment of an Employee in consideration of services performed prior to Retirement;
(c) Any compensation paid or payable by reason of services performed prior to the date the Employee became a Participant;
(d) Any compensation paid by way of overtime, or other special payments.
For purposes of computing the limits under
Sections 3.4 and 4.4, Compensation shall mean
Limitation Compensation as defined in Section 6.6 of
the Plan. For purposes of the preceding sentence,
Compensation shall include an Employee's Pretax
Contributions to this Plan and any Pretax contributions
to a cafeteria plan under Code Section 125 sponsored by
the Company.
If the Plan determines Compensation on a period of time that contains fewer than 12 calendar months, then the annual Compensation limit is an amount equal to the annual Compensation limit for the calendar year in which the Compensation period begins multiplied by the ratio obtained by dividing the number of full months in the period by 12.
1.14 Effective Date: "Effective Date" of this restated Plan, unless otherwise specified, is December 1, 1994. However, the provisions of this Plan which comply with the requirements of the Tax Reform Act of 1986, the Omnibus Budget Reconciliation Act of 1986, the Omnibus Budget Reconciliation Act of 1987, and the final regulations issued pursuant to the Retirement Equity Act of 1984 and all subsequent legislation shall be effective as required by statute.
1.15 Election Effective Date: The first day of each month, the dates upon which changes in elections respecting Basic and Optional Contributions are effective.
1.16 Eligible Basic Contribution Percentage: The percentage of a Participant's Compensation that may be contributed to the Plan as Pretax and/or After-tax Basic Contributions, as set forth in Section 3.2.
1.18 Eligible Employee: Each Employee, except for the following:
(i) any "Leased Employee"; or
(ii) any person who is employed by an operating division or subsidiary of Pacific Diversified Capital Company; or
(iii) any "Short-term," "Part-time" and
"Call-in" Employee, as classified by the
Employer. Provided, such an Employee shall be
considered an "Eligible Employee" under the Plan
and shall be eligible to participate in the Plan
on the Entry Date following the Eligibility
Computation Period in which he or she is credited
with 1,000 Hours of Service. Such period shall be
considered a "Year of Service" for purposes of
Section 2.1.
1.19 Employee: A person currently employed by the Company any portion of whose income is subject to withholding of income tax and/or for whom Social Security contributions are made by the Company, as well as any other person qualifying as a common law employee of the Company. "Employee" shall also include a Leased Employee, to the extent required under Section 1.29.
1.21 Entry Date: The first day of any month
following completion by the Employee of one Year of
Service with the Company and attainment of age 21.
1.22 ERISA: The Employee Retirement Income
Security Act of 1974, as amended.
1.23 Family Member: An Employee or former Employee's spouse or lineal ascendants or descendants and the spouses of such lineal ascendants or descendants.
1.24 Forfeitures: The unvested Company Matching Contributions Account which are forfeited on Termination of Service or the unvested Company Matching Contributions which are forfeited upon a withdrawal of a Participant's Pretax Basic Contributions or After-tax Basic Contributions.
1.25 Funds: Any investment fund, including Stock, selected from time to time by the Company with respect to which Participants' Accounts may be invested.
1.26 Highly Compensated Employee: The term "Highly Compensated Employee" includes highly compensated active employees and highly compensated former employees.
A highly compensated active Employee includes any
Employee who performs service for the Company during
the determination year and who, during the look-back
year: (i) received Compensation from the Company in
excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code); (ii) received
If no officer has satisfied the Compensation requirement of (iii) above during either a determination year or look-back year, the highest paid officer for such year shall be treated as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan Year, except that where the Plan Year is not a calendar year, the Company may elect, on a consistent basis, to consider the calendar year which ends within the Plan Year as the determination year. The look-back year shall be the twelve-month period immediately preceding the determination year.
If an Employee is, during a determination year or
look-back year, a Family Member of either (i) a five
percent owner who is an active or former Employee or
(ii) a Highly Compensated Employee who is one of the
ten most Highly Compensated Employees ranked on the
basis of Compensation paid by the Company during such
year, then the Family Member and the five percent owner
or top-ten Highly Compensated Employee shall be
aggregated. In such case, the Family Member and five
percent owner or top-ten Highly Compensated Employee
shall be treated as a single Employee receiving
Compensation and Plan contributions or benefits equal
to the sum of such Compensation and contributions or
benefits of the Family Member and five percent owner or
top-ten Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including the determinations of the number and identity of Employees in the top-paid group, the top 100 Employees, the number of Employees treated as officers and the Compensation that is considered, will be made in accordance with Section 414(q) of the Code and the regulations thereunder.
Provided, however, that the term "Hour of Service" shall be subject to the following additional provisions:
(i) "Hour of Service" for hourly paid Employees shall be ascertained from the records of hours worked or hours for which payment is made or owing. Hours of Service for all non-hourly paid Employees whose hours are not required to be counted and recorded by any Federal wage or hours law, such as the Fair Labor Standards Act, need not be determined from employment records, but rather each such Employee shall be credited with 45 Hours per week (or 10
(ii) Nothing in this Section 1.27 shall be
construed to alter, amend, modify, invalidate,
impair, or supersede any law of the United States
or any rule or regulation issued under any such
law. Thus, for example, nothing in this Section
1.27 shall be construed as denying an Employee
credit for an "Hour of Service" if credit is
required by separate Federal law.
(iii) Credit shall not be given more than once for the same Hour of Service under any of the provisions of this Section 1.27.
1.28 Invested Primarily in Stock: The Plan's assets shall be invested primarily in Stock, which in no event shall constitute less than 40% of total Trust Assets for more than three consecutive Plan Years.
1.29 Leased Employee: "Leased Employee" means any person (other than an Employee of the recipient Company) who pursuant to an agreement between the recipient and any other person (leasing organization) has performed services for the recipient (or for the recipient and related persons determined in accordance with Section 414(n)(6) of the Code) on a substantially full time basis for a period of at least one year, and such services are of a type historically performed by Employees in the business field of the recipient Company. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services
A Leased Employee shall not be considered an
Employee of the recipient if: (i) such Employee is
covered by a money purchase pension plan providing: (1)
a non-integrated employer contribution rate of at least
ten percent of Limitation Compensation, as defined in
Section 6 of the Plan, but including amounts
contributed by the Company pursuant to a salary
reduction agreement which are excludable from the
employee's gross income under Section 125, Section
402(e)(3), Section 402(h) or Section 403(b) of the
Code, (2) immediate participation, and (3) full and
immediate vesting; and (ii) Leased Employees do not
constitute more than 20 percent of the recipient's
non-highly compensated workforce.
1.30 Non-Highly Compensated Employee: A "Non-Highly Compensated Employee" shall mean an Employee who is neither a Highly Compensated Employee nor a Family Member.
1.31 Notice: Written notification mailed or delivered to the Administrator.
1.32 One-Year Break in Service: One-Year Break in Service shall mean a 12-consecutive month Period of Severance.
1.33 Optional Contributions: Pretax Optional Contributions and After-tax Optional Contributions are sometimes together described in the Plan as "Optional Contributions."
1.36 Period of Severance: Period of Severance shall mean a continuous period of time, beginning with an Employee's Severance from Service, during which such Employee is not employed by the Company.
1.37 Plan: The San Diego Gas & Electric Company Savings Plan, the terms and conditions of which are herein set forth, as the same may be amended from time to time.
1.38 Plan Year: The fiscal year of the Plan which, up to June 30, 1994, begins July 1st and ends the following June 30th; the period from July 1, 1994 to December 31, 1994; and beginning January 1, 1995, the calendar year.
1.39 Pretax Basic Contributions: Contributions made by the Company to the Plan pursuant to a Participant's election, under Section 3.2, to reduce his or her Compensation and have the amount of such reduced Compensation contributed to the Plan on his or her behalf. Pretax Basic Contributions are matched by Company Matching Contributions, as set forth in Section 4.1.
1.41 Reemployment Commencement Date: The date on which an Employee first performs an Hour of Service for a Company maintaining the Plan, following his or her Termination of Service.
1.42 Retirement: Retirement shall mean retirement under the Pension Plan, either in respect to Early Retirement, Normal Retirement or at the time of actual retirement subsequent to attaining Normal Retirement Date.
1.43 SDG&E: SDG&E means San Diego Gas & Electric
Company.
1.44 Service: Service means an Employee's
employment by the Company or a member of the Controlled
Group, determined in accordance with reasonable and
uniform standards and policies adopted by the Company,
which shall be consistently observed. Periods of
Service shall be determined and accumulated for all
periods of employment for completed years and days of
Service commencing on the Employee's Employment
Commencement Date or Reemployment Commencement Date,
whichever is applicable, and ending on the subsequent
date a Break in Service begins. Each consecutive 12
months of Service constitutes a completed full "Year of
Service" and any part of Service in excess of each
completed full 12 consecutive months of Service shall
be counted
1.45 Severance from Service: Severance from Service shall mean the date an Employee Terminates Service for any reason, including quitting, resignation or discharge for any cause, and shall also mean Retirement, death or failure to return to work when requested to do so. A Severance from Service shall not occur as a result of an Employee's Leave of Absence, as described in Section 2.4. If a Leave of Absence is attributable to maternity or paternity leave, then an individual's Period of Severance will not begin until the second anniversary of the date the individual is first absent and does not perform an Hour of Service. The first one year period of absence will be considered Service and the second one year period is neither considered Service nor part of the Period of Severance.
1.46 Stock: The common stock of San Diego Gas & Electric Company or any other corporation which is a member of a Controlled Group with San Diego Gas & Electric Company, provided such other member's stock is validly registered on a registration statement on Form S-8 filed under the Securities Act of 1933, as amended, with respect to this Plan.
1.48 TRESOP: The "San Diego Gas & Electric Company Tax Reduction Employee Stock Ownership Plan" which was adopted effective July 1, 1977.
1.49 Trust: The trust established by the Trust Agreement into which all contributions are deposited, and from which all distributions are made.
1.50 Trust Assets: Stock and other assets held in the Trust for the benefit of Participants.
1.51 Trustee: The corporate trustee selected and appointed by the Board of Directors to serve as trustee or successor trustee of the Trust pursuant to the Trust Agreement.
1.52 Vested Right: An unconditional right to all or a portion of a Participant's Company Matching Contributions Account.
1.53 Year of Service: Year of Service has the
meaning set forth in the definition of "Service" in
Section 1.44.
2. PARTICIPATION
2.1 Entry into Plan: Each Eligible Employee who immediately prior to December 1, 1994 was a Participant in the Plan shall continue to participate in the Plan, subject to Section 2.5. Each other Eligible Employee may become a
2.3 Plan Participation by Rehired Employees: A former Participant shall be eligible to become a Participant of the Plan again as of the first day of the month following his or her Reemployment Commencement Date as an Eligible Employee. An otherwise Eligible Employee who terminates employment before becoming a Participant and is rehired prior to incurring a One-Year Break in Service shall be eligible to participate in the Plan as of the later of: (i) the first day of the month following his or her Reemployment Commencement Date or (ii) his or her Entry Date, as determined under Section 2.1. An otherwise eligible Employee who terminates employment before becoming a Participant and who incurs a One-Year Break in Service prior to his or her Reemployment Commencement Date shall
2.4 Leaves of Absence:
(i) A Participant's employment is not considered terminated for purposes of the Plan if
the Employee has been on Leave of Absence with the consent of the Company, provided that he or she returns to the employ of the Company at the expiration of such leave. "Leaves of Absence" shall mean leaves granted by the Company, in accordance with rules uniformly applied to all Employees, for reasons of health or for reasons determined by the Company to be in its best interests. A Participant's employment shall likewise not be deemed to have been terminated while the Employee is a member of the Armed Forces of the United States, provided that he or she returns to the service of the Company within ninety days (or such longer period as may be prescribed by law) from the date he or she first became entitled to his or her discharge. An Employee who does not return to the employ of the Company at the expiration of his or her Leave of Absence, or within the required time in case of service with the Armed Forces, shall be deemed to have terminated his or her employment as of the date when his or her Leave began. In any case of an authorized Leave of Absence, all contributions with respect to an Employee cease when regular earnings are no longer paid.
2.5 Participation in the Plan: Subject to the foregoing provisions of this Article 2, participation in the Plan by a Participant continues until a Participant's Accounts are distributed in full. A Participant shall not be required to cease participation in the Plan by reason of his or her attaining age 65.
2.6 Transfer from TRESOP: Notwithstanding any provision of the Plan to the contrary, any Employee whose interest in the Company's TRESOP is transferred to the Plan shall be a Participant in the Plan.
(a) A Pretax Basic Contributions Account;
(b) An After-tax Basic Contributions Account;
(c) A Pretax Optional Contributions Account;
(d) An After-tax Optional Contributions Account;
(e) A Company Matching Contributions Account;
(f) A TRESOP Employee Contributions Account;
(g) A TRESOP Company Contributions Account; and
(h) A Rollover Contributions Account.
3.2 Pretax and After-tax Basic Contributions:
Each Participant may elect, commencing with the first
paycheck payable on or after an Election Effective
Date, by giving Notice at least ten (10) days prior to
such Election Effective Date, to make After-tax Basic
Contributions to the Plan and/or reduce his or her
Compensation and have Pretax Basic Contributions made
to the Plan by the Company on the Participant's behalf.
All Pretax Contributions shall be considered Company
contributions under the Plan. The percentage of
Compensation that may be contributed, in any
combination of Pretax and After-tax Basic
Contributions, shall be determined in accordance with
the following schedule:
Eligible Basic
Age at Contribution Contribution Percentage
Through 39 1%, 2%, 3% or 4%
40-49, inclusive 1%, 2%, 3%, 4% or 5%
50 and over 1%, 2%, 3%, 4%, 5% or 6%
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If a combination Pretax and After-tax Basic Contributions is elected, elections of each type of such contributions must be expressed in whole percentages. Additionally, Participants who are Employees may elect to defer up to the full amount of Stock cash dividends payable on behalf of the Participant pursuant to Section 8.
3.3 Pretax and After-tax Optional Contributions:
A Participant who elects the maximum Eligible Basic
Contribution Percentage, as set forth in the schedule
under Section 3.2, will also be eligible to make
After-tax Optional Contributions to the Plan and/or
reduce his or her Compensation and have Pretax Optional
Contributions made to the Plan on his or her behalf.
Such contributions may be made in Pretax or After-tax
Optional Contributions or any combination thereof.
Optional Contributions must be elected in whole
percentages (if a combination of Pretax and After-tax
Optional Contributions is elected, then each must be
expressed in whole percentages) of not less than one
percent (1%) of Compensation and not more than the
percent of Compensation that equals the difference
between a Participant's maximum Eligible Basic
Contribution Percentage and fifteen percent (15%). The
Company shall make no Matching Contributions with
respect to Optional Contributions.
(a) Maximum Amount of Pre-tax Basic and Optional Contributions. No Eligible Employee's Pre-tax Basic and Optional Savings Contributions shall exceed, for any calendar year, $7000 multiplied by the adjustment factor, if any, announced by the Secretary of the Treasury.
(b) Average Actual Deferral Percentage
Limitation. Pretax Basic and Optional
Contributions shall also be limited as follows:
(i) The Actual Deferral Percentage
("ADP") for Eligible Employees who are Highly
Compensated Employees for the Plan Year shall
not exceed the ADP for Eligible Employees who
are Non-Highly Compensated Employees for the
Plan Year multiplied by 1.25; or
(ii) The ADP for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Actual Deferral Percentage for Eligible Employees who are Non-Highly Compensated Employees for the Plan Year multiplied by 2.0, provided that the ADP for Eligible Employees who are Highly Compensated Employees does not exceed the ADP for Eligible Employees who are Non-Highly Compensated Employees by more than two (2) percentage points.
(c) Definitions. For purposes of this
Section 3.4 and for purposes of Section 8.6,
"Actual Deferral Percentage" shall mean, for a
specified group of Eligible Employees for a Plan
Year, the average of the ratios
(d) Special Rules.
(i) For purposes of this Section 3.4, the ADP for any Eligible Employee who is a Highly Compensated Employee for the Plan Year and who is eligible to have Pretax Contributions allocated to his or her accounts under two or more plans or arrangements described in Section 401(k) of the Code which are maintained by the Company or a Controlled Group Member shall be determined as if all such Pretax Contributions were made under a single arrangement.
(iii) In the event that this Plan
satisfies the requirements of sections
401(k), 401(a)(4), or 410(b) of the Code only
if aggregated with one or more other plans,
or if one or more other plans satisfy the
requirements of such sections of the Code
only if aggregated with this Plan, then this
section shall be applied by determining the
ADP of Employees as if all such plans were a
single plan. Plans may be aggregated in
order to satisfy section 401(k) of the Code
only if they have the same Plan Year.
(iv) For purposes of determining the ADP
of a Participant who is a five percent owner
or one of the ten most highly-paid Highly
Compensated Employees, the Pretax
Contributions and Compensation of such
Participant shall include the Pretax
Contributions and Compensation for the Plan
Year of Family Members (as defined in section
414(q)(6) of the Code). Family Members, with
respect to such Highly Compensated
(v) For purposes of determining the ADP test, Pretax Contributions must be made before the last day of the twelve-month period immediately following the Plan Year to which contributions relate.
(vi) The Company shall maintain records sufficient to demonstrate satisfaction of the ADP test.
(vii) The determination and treatment of the ADP amounts of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury.
3.5 Discontinuance of Pretax and After-tax Basic Contributions: A Participant may discontinue all Basic Contributions as of any pay day by giving Notice at least ten (10) days prior to that pay day. If the Participant discontinues Basic Contributions, he or she does not thereby terminate participation in the Plan, but the Participant may not elect to resume Basic Contributions until a period of twelve months with no such contributions has elapsed.
3.7 Change of Pretax and After-tax Basic Contributions: A Participant may change his or her rate of Basic Contributions (including Pretax and After-tax Basic Contributions) to any other permitted contribution percentage, effective as of the paycheck payable on or after the Election Effective Dates of each Plan Year. A Participant may also change his or her elected combination of Pretax and After-tax Basic Contributions, effective for such paycheck. Ten (10) days Notice prior to the Election Effective Dates shall be required to effect any changes in Basic Contributions. Notwithstanding the foregoing, subject to the giving of ten (10) days prior Notice, when a Participant reaches his or her fortieth or fiftieth birthday, he or she may increase his or her rate of Basic Contributions (and change his or her combination of Pretax and After-tax Basic Contributions) to be effective for the first paycheck payable on or after the following Election Effective Date. If a Participant is then making After-tax Optional Contributions, or if Pretax Optional Contributions are then being made on his or her behalf, such Participant's Basic Contribution percentage shall automatically
3.8 Change of Pretax and After-tax Optional Contributions:
A Participant may change his or her rate of Optional
Contributions (including Pretax and After-tax Optional
Contributions), and may change his or her elected combination of
Pretax and After-tax Optional Contributions, effective as of the
paycheck payable on or after the Election Effective Dates of
each Plan Year by giving Notice at least ten (10) days prior to
such Election Effective Dates. However, a Participant who has
elected Optional Contributions will automatically have his or
her rate of Optional Contributions reduced by one percent (1%)
effective as of the paycheck payable on or after the Election
Effective Date following such Participant's fortieth or fiftieth
birthday, thereby increasing his or her Basic Contribution
percentage to the maximum permitted under Section 3.2.
3.9 Withdrawal of Basic and Optional Contributions Accounts: When a Participant withdraws all or any portion of his or her Basic or Optional Contributions Accounts, in accordance with Section 8.1(a) or 8.1(b), all of his or her Basic and Optional Contributions shall cease as soon as administratively practicable after such withdrawal. Such Participant will not be permitted to resume contributions until twelve months have elapsed. He or she may resume contributions by giving Notice at least ten (10) days prior to an Election
3.10 Payment to Trustee: All Pretax and After-tax Basic and Optional Contributions shall be turned over to the Trustee each pay day to be invested and held for distribution in accordance with the Plan and the Trust Agreement. The entire amount of such contributions are unconditionally vested in the Participant.
4. COMPANY MATCHING CONTRIBUTIONS; LIMITATION ON AFTER-TAX CONTRIBUTIONS
4.1 In General: Subject the the Company's election to make Matching Contributions, the Company shall make Matching Contributions in Stock or cash to the Plan, in an amount which equals (i) one-half of the aggregate of Pretax and After-tax Basic Contributions for each quarter less (ii) any Forfeitures not previously applied to reduce Company Matching Contributions. To the extent that a Company Matching Contribution consists of Stock, the value of such contribution shall be based on the fair market value of Stock on the last business day preceding the date when the Stock is contributed. Such fair market value shall be determined in accordance with Section 5.7.
4.2 Allocation of Company Matching Contributions: Each Participant's Company Matching Contributions Account shall be conditionally credited each Plan Year with an amount of Company Matching Contributions equal to one-half of the amount of his or her Basic Contributions for such Plan Year.
4.4 Limitation on Matching Contributions and After-tax Contributions: Matching Contributions and After-tax Contributions for Eligible Employees shall be limited as follows:
(a) Average Contribution Percentage. The Average Contribution Percentage ("ACP") for Eligible Employees who are Highly Compensated Employees for each Plan Year and the ACP for Eligible Employees who are Non-Highly Compensated Employees for the same Plan Year must satisfy one of the following tests:
(i) The ACP for Eligible Employees who are Highly
Compensated Employees for the Plan Year shall not exceed
the ACP for Eligible Employees who are Non-highly
Compensated Employees for the same Plan Year multiplied by
1.25; or
(ii) The ACP for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the ACP for Eligible Employees who are Non-highly Compensated Employees for the same Plan Year multiplied by two (2), provided that the ACP for Eligible Employees who are Highly Compensated Employees does not exceed the ACP for Eligible
(b) Special Rules:
(i) Multiple Use: If the sum of the ADP and ACP
of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then
the ACP of those Highly Compensated Employees will be
reduced (beginning with such Highly Compensated
Employee whose ACP is the highest) so that the limit
is not exceeded. The amount by which each Highly
Compensated Employee's Contribution Percentage Amounts
is reduced shall be treated as an Excess Aggregate
Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any
corrections required to meet the ADP and ACP tests.
Multiple use does not occur if either the ADP or ACP
of the Highly Compensated Employees does not exceed
1.25 multiplied by the ADP and ACP of the Non-highly
Compensated Employees.
(ii) For purposes of this Section, the Contribution Percentage for any Participant who is a Highly Compensated Employee and who is eligible to have Contribution Percentage Amounts allocated to his or her account under two or more plans described in section 401(a) of the Code, or arrangements described in section 401(k) of the Code that are maintained by the Company, shall be determined as if the total of
(iii) In the event that this Plan satisfies
the requirements of Sections 401(m), 401(a)(4) or
410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the
requirements of such sections of the Code only if
aggregated with this Plan, then this Section shall be
applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan.
Plans may be aggregated in order to satisfy Section
401(m) of the Code only if they have the same Plan
Year.
(iv) For purposes of determining the Contribution percentage of an Eligible Employee who is a five percent owner or one of the ten most highly-paid Highly Compensated Employees, the Contribution Percentage Amounts and Compensation of such Eligible Employee shall include the Contribution Percentage
(v) For purposes of determining the Contribution Percentage test, After-tax Contributions are considered to have been made in the Plan Year in which contributed to the trust. Matching Contributions will be considered made for a Plan Year if made no later than the end of the twelve-month period beginning on the day after the close of the Plan Year.
(vi) The Company shall maintain records sufficient to demonstrate satisfaction of the ACP test.
(vii) The determination and treatment of the Contribution Percentage of any Eligible Employee shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury.
(c) Definitions:
(i) "Aggregate Limit" shall mean the sum of
(i) 125 percent of the greater of the ADP of the
Non-highly Compensated Employees for the Plan Year or
the ACP of Non-highly Compensated Employees under the
(ii) "Average Contribution Percentage" shall mean the average of the Contribution Percentages of the Eligible Employees in a group.
(iii) "Contribution Percentage" shall mean the ratio (expressed as a percentage) of the Eligible Employee's Contribution Percentage Amounts to the person's Compensation for the Plan Year.
(iv) "Contribution Percentage Amounts" shall mean the sum of the After-tax Contributions and Matching Contributions made under the Plan on behalf of the Participant for the Plan Year. Such Contribution Percentage Amounts shall not include Matching Contributions that are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions. The Company may include Qualified Nonelective Contributions in the Contribution Percentage Amounts. The Company also may elect to use Pretax Contributions in the Contribution Percentage Amounts so long as the ADP test is met before the Pretax Contributions are used in the ACP test and
5. INVESTMENTS
5.1 Investment of Contributions: The Trustee invests
Basic Contributions and Optional Contributions, as elected by
the Participant on a form prescribed by SDG&E, in any
combination (in whole percentages only) of Funds. Stock will be
purchased by the Trustee from SDG&E or other sources, as
directed by SDG&E. All purchases of Stock by the Trustee shall
be made at prices which do not exceed the fair market value of
such shares, as determined in accordance with Section 5.7.
SDG&E may direct the Trustee to invest and hold up to 100% of
the total value of all Accounts under the Plan in Stock.
Income from any fund is invested in such Fund. A Participant may change his or her investment designation (with respect to future Contributions) as of the first paycheck payable on or after an Election Effective Date by giving Notice at least ten (10) days prior to such Election Effective Date. The Trustee shall invest all Company Matching Contributions and income attributable thereto in Stock which is purchased from SDG&E or other sources, as directed by SDG&E. Contributions and income shall be used to purchase Fund interests in accordance with procedures established by SDG&E. Until such purchases are made, the Trustee shall hold such contributions and income in
If directed by SDG&E, brokerage fees for the purchase of Stock will be charged to the Accounts with respect to which such Stock is purchased.
5.2 Fund Transfers: As of any Election Effective Date, each Participant shall have the right to transfer amounts in his or her Basic Contributions Accounts and Optional Contributions Accounts among the Funds, by providing the Company with ten (10) days written Notice prior to such Election Effective Date. The timing of Fund transfers, and the valuation thereof, will be determined in accordance with procedures established by the Company.
5.3 Right to Diversify Accounts: Effective December 1, 2004, a Participant who is an Employee, who attains age 55 on or after December 1, 2004, and who, on or after December 1, 2004, has completed 10 years of participation in the Plan may elect to direct the investment of a portion of his or her Accounts among the Funds. Such portion shall be considered first from of the portion of his or her Accounts otherwise subject to direction pursuant to Section 5.1 above, plus an additional portion, if any, of the Participant's Company Matching Contributions Account necessary to allow direction of the applicable percentage of the Participant's Accounts as determined below. An election to direct the investment of Accounts may be made only by filing the prescribed form with the Company during an election period. An election may be revoked or modified at any time during the
During any of the first five election periods, the
Participant may elect to direct the direct the investment of an
amount that does not exceed 25 percent of the sum of his
Accounts plus all amounts previously directed under this
Section 5, reduced by all such previously directed amounts.
During the last election period, the Participant may elect to
direct the investment of an amount that does not exceed
50 percent of the sum of his Accounts plus all amounts
previously directed under this Section 5, reduced by all such
previously directed amounts. For purposes of this Section 5.3,
all account balances shall be determined as of the close of the
preceding Plan Year.
5.4 Protection of Participants' Rights: Shares of Stock held or distributed by the Trustee may include such legend restrictions on transferability as SDG&E may reasonably require in order to ensure compliance with applicable federal and state securities laws. If shares of Stock are acquired with the proceeds of a loan used by the Trust to finance that acquisition, such Stock shall not be subject to a put, call or other option or a buy-sell or similar arrangement while such
5.5 Voting of Stock: Each Participant shall be entitled
to direct the Trustee with respect to the voting of all whole
shares of Stock, whether or not vested, which has been
allocated, or conditionally allocated, to his or her Accounts.
SDG&E shall conclusively determine the number of the shares of
Stock that are subject to each Participant's voting instructions
and shall advise the Trustee accordingly. SDG&E shall cause to
be delivered to each Participant a request for written voting
instructions and the voting instructions form prescribed by
SDG&E for this purpose. Each Participant who wishes to exercise
his or her rights under this Section 5.5 shall complete such
form and shall return the same to the Trustee prior to the date
prescribed by SDG&E. Once received by the Trustee, a
Participant's voting instructions shall be irrevocable. Any
shares of Stock with respect to which the Trustee receives
timely, written voting instructions from Participants under this
Section 5.5 shall be voted by the Trustee in accordance with
such instructions. The Trustee in its own discretion shall vote
(a) any shares of Stock held in the Trust Fund with respect to
which it has not received, prior to the date specified by SDG&E,
written instructions on the prescribed form from the
5.6 Valuation of Funds: Funds shall be valued as of the end of each Plan Year and at such other times as may be determined by SDG&E, on the basis of fair market values. Earnings, gains and losses with respect to each Fund shall be allocated to the Accounts of Participants in accordance with procedures established by SDG&E.
5.7 Valuation of Stock: As of each Valuation Date, the Stock shall be valued at the price prevailing on a national securities exchange or the offering price established by current bid and asked prices quoted by persons independent of SDG&E or any Company, pursuant to section 3(18)(A) of ERISA.
In transactions between the Plan and a "disqualified person" (within the meaning of section 4975(e)(2) of the Code) which involve Stock, the value of Stock shall be determined as of the date of such transaction.
6. ALLOCATION LIMITATIONS
6.1 General Rule: Notwithstanding anything to the
contrary contained in this Plan, the total Annual Additions to a
Participant's Accounts for any Plan Year made pursuant to
Sections 3 and 4 shall not exceed the lesser of the Defined
Contribution Dollar Limitation or 25% of the Participant's
Limitation Compensation (defined below) within the meaning of
Code Section 415(c)(3) for the Plan Year. The Plan Year shall
6.2 Annual Additions: For purposes of this Section 8, the term "Annual Additions" shall mean, for any Plan Year, the sum of the following:
(i) The amount of all Company Contributions actually allocated to the Participant's Accounts under Section 4 as of any date within such year;
(ii) The amount of Forfeitures allocated to the Participant's Accounts under this Plan as of any date within such year;
(iv) The aggregate Participant Pretax and After-Tax contributions to this Plan under Section 3, and employee contributions that the Participant contributes during such year to all qualified retirement plans maintained by the Controlled Group; and
(v) Amounts allocated to an individual
medical account as defined in Section
415(1)(l) of the Code, which is part of a
defined benefit plan maintained by the
Company, are treated as Annual Additions to
a defined contribution plan. Also, amounts
derived from contributions paid or accrued
after December 31, 1985, in taxable years
ending after such date, which are
attributable to post-retirement medical
benefits allocated to the separate account
of a key employee, as defined in Section
419(A)(d)(3), under a welfare benefit fund,
as defined in Section 419(e) of the Code,
maintained by the
6.3 Participation in Additional Defined Contribution Plan:
If a Participant in this Plan is also a participant in another
defined contribution plan, as defined in Section 414(i) of the
Code, to which contributions are made by the Company or any
member of the Controlled Group (as defined in Section 1.13,
except that the phrase "more than 50 percent" shall be
substituted for the phrase "at least 80 percent" in applying
Section 1563(a)(1) of the Code), then the Participant's Annual
Additions in such other plan shall be aggregated with the
Participant's Annual Additions derived from this Plan, and the
Participant's compensation from such other member of the
Controlled Group shall be aggregated with his or her Limitation
Compensation from the Company for purposes of applying the
limitations in this Section 6.
6.4 Participation in Additional Defined Benefit Plan: If a
Participant in this Plan is also a participant in a defined
benefit plan, as defined in Section 414(j) of the Code, to which
contributions are made by the Company or any member of the
Controlled Group (as defined in Section 1.13, except that the
phrase "more than 50 percent" shall be substituted for the
phrase "at least 80 percent" in applying Section 1563(a)(1) of
the Code), then, in addition to the limitation set forth in
Section 6.1, the projected annual benefit under such defined
benefit plan will be limited so that the sum of the Defined
Benefit Fraction and the Defined Contribution Fraction with
(a) Defined Contribution Fraction means a fraction, the numerator of which is the sum of the Annual Additions credited to the Participant's Accounts under this and all qualified defined contribution plans of the Company or any member of the Controlled Group for the current and all prior Limitation Years plus the sum of the Annual Additions attributable to the Participant's employee contributions to any qualified defined benefit plans of the Company for the current and all prior Limitation Years, and the denominator of which is the sum of the lesser of the following amounts determined for such Limitation Year and for all prior Limitation Years: (A) the product of 1.25 multiplied by $30,000 (or such greater amount as determined by the Commissioner of the Internal Revenue Service applicable to the calendar year with which or within which the Limitation Year ends) or (B) the product of 1.4 multiplied by 25 percent of such Participant's Limitation Compensation for such Limitation Year.
If the Employee was a Participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one or more defined contribution plans maintained by the Company which were in existence on May 6, 1986, the numerator of this fraction will be adjusted if the sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of (1) the excess of the sum of the fractions over
(b) Defined Benefit Fraction means a fraction, the numerator of which is the sum of a Participant's projected annual benefit under all the qualified defined benefit plans of the Company or a member of the Controlled Group determined at the end of the Limitation Year, and the denominator of which is the lesser of (A) the product of 1.25 multiplied by $90,000 (or such greater amount as determined by the Commissioner of the Internal Revenue Service applicable to the calendar year with which or within which the Limitation Year ends) or (B) the product of 1.4 multiplied by 100 percent of the Participant's average Compensation for the three highest consecutive calendar Years of Service during which the Participant was active in the Plan.
Notwithstanding the above, if a Participant was a Participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one or more defined benefit plans maintained by the Company which were in existence on May 6, 1986, the denominator of the fraction will not be less than 125 percent of the sum of the annual benefits under such
6.5 Treatment of Excess Allocations: If the Annual Additions to a Participant's Accounts would otherwise exceed the limitations described in Sections 6.1 or 6.3, the aggregate of the Annual Additions to this Plan shall be reduced, to the extent necessary ("Excess Amount"), until the applicable limitations are satisfied, as follows:
(a) First, After-tax Contributions shall be returned to the Participant;
(b) If after the application of (a), above, an Excess Amount exists, and the Participant is covered by the Plan at the end of the Limitation Year, the Excess Amount shall be placed in a suspense account and used to reduce Matching Contributions for such Participant in the next Limitation Year, and each succeeding Limitation Year, if necessary;
(c) If, after the application of (a), above, an Excess Amount exists and the Participant is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held unallocated in a suspense account. The suspense account will be used to reduce Matching Contributions for all remaining Participants in the next
6.6 Limitation Compensation: For purposes of this
Section 6, Limitation Compensation shall mean a Participant's
earned income, wages, salaries, fees for professional service
and other amounts received (without regard to whether or not
amount is paid in cash) for personal services actually rendered
in the course of employment with the Company maintaining the
plan (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of percentage of profits,
commissions on insurance premiums, tips, bonuses, fringe
benefits, reimbursement, and expense allowances) and excluding
the following:
(a) Company contributions to a plan of deferred compensation to the extent contributions are not includable in gross income of the Employee for the taxable year in which contributed, or on behalf of an Employee to a simplified employee pension plan to the extent such contributions are deductible by the Employee or any distributions from a plan of deferred compensation;
(c) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and
(d) other amounts which receive special tax benefits,
or contributions made by an Company (whether or not under a
salary reduction agreement) towards the purchase of a Code
Section 403(b) annuity contract (whether or not the amounts
are actually excludable from the gross income of the
Employee).
For purposes of applying the limitations of this
Section 6.6, amounts included as Limitation Compensation are
amounts actually paid within the Limitation Year.
Notwithstanding the preceding sentence, Limitation Compensation
for a Participant who is permanently and totally disabled (as
defined in Section 22(e)(3) of the Code) is the Limitation
Compensation such Participant would have received for the
Limitation Year if the Participant was paid at the rate of the
Limitation Compensation paid immediately before becoming
permanently and totally disabled.
Years of Service Percentage of Account Vested Less than five 0% Five or more 100% |
For purposes of this schedule, all Years of Service with a Company or a member of the Controlled Group or a predecessor of the Company (to the extent required by regulations issued under Code Section 414(a)(2)) shall be taken into account.
7.2 Vesting of Stock Dividends, Stock Splits and Stock Rights: Stock received by the Trustee as a Stock dividend or from a Stock split or bought with cash obtained from the sale of a Stock right, warrant or option is allocated in the same manner as a cash dividend. It is unconditionally vested in a Partici-
7.3 Participants and Beneficiaries Who Cannot Be Located:
The entire amount otherwise payable to a Participant or
Beneficiary who cannot be located shall be subject to forfeiture
and restoration in accordance with the procedures specified in
Section 8.4(e)(ii).
7.4 Amendment to Vesting Schedule:
(a) Vested Interest Not Diminished: If the Plan is amended to provide for a change to the vesting schedule, then with respect to any Employee who is a Participant on (i) the date the amendment is adopted or (ii) the date the amendment is effective, whichever is later, the nonforfeitable percentage of such Employee's right to his or her Company-derived account balance (determined as of such date) shall not be less than his or her nonforfeitable percentage computed under the Plan without regard to such amendment.
(b) Participant's Election: In the event of an amendment to the vesting schedule, each Participant whose nonforfeitable percentage of his or her account balance derived from Company contributions was determined under the vesting schedule prior to the amendment and who has completed at least three Years of Service with the Company may elect, during the election period, to have the nonforfeitable percentage of his or her account balance derived from Company contributions
8. WITHDRAWAL AND DISTRIBUTIONS OF ACCOUNTS
8.1 Withdrawal of Accounts During Employment:
(a) Withdrawal from After-Tax Contributions Accounts.
During his or her participation, a Participant may elect to
withdraw all or any part of his or her After-tax Basic
Contributions Account and After-tax Optional Contributions
Account by giving ten (10) days Notice at any time except
during the calendar quarter in which he or she Terminates
his or her Service.
If the Participant withdraws any part of his or her
After-Tax Contributions Accounts, such withdrawal shall be
deemed to be withdrawn from his or her After-tax Optional
Contributions Account, if any. If his or her withdrawal
exceeds the amount attributable to his or her After-tax
Optional Contributions Account, such excess withdrawal
shall be deemed to have been made from the After-tax Basic
Contributions first made.
(b) Withdrawal of Pretax Contributions. A
Participant may, while employed by the Company, apply to
the Company for a hardship distribution in an amount equal
to all or a portion of his or her Pretax Contributions (but
not earnings on such Pretax Contributions attributable to
Plan Years commencing after December 31, 1988) to meet an
immediate and heavy financial need which constitutes a
hardship for the Participant where the Participant has no
other financial resources to meet such need. The amount of
the hardship distribution may be increased to consider the
taxes which are payable (including any withholding that may
apply) on such distribution.
A hardship distribution shall be made only in the following circumstances: (1) for medical expenses of the Participant, the Participant's spouse or dependents; (2) for the purchase (excluding mortgage payments) of a principal residence for the Participant; (3) for the payment of tuition for the next twelve months of
8.3 Distribution At Or After Cessation of Employment:
When a Participant's employment with the Company ceases for any
of the following reasons, the Participant becomes entitled to
receive his or her Basic and Optional Contributions Accounts
plus the Participant's Company Matching Contributions Account in
which he or she has a Vested Right. The Participant's
employment ceases upon:
(a) Retirement under Pension Plan.
(b) Death.
54
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(c) Total and Permanent Disability. "Total and Permanent Disability" (or |
The failure of the Participant to elect to receive a distribution of the Participant's Accounts will be considered to be an election to defer payment of benefits to the date set forth in Section 8.4(g).
Such determination shall be made after first
determining Excess Elective Deferrals and then determining
Excess Contributions.
8.9 Deferral of Payment of Benefits During Period of
Consideration of Domestic Relations Order; Distribution to
Alternate Payee Before Event Permitting Distribution to
Participant: Notwithstanding any other provision of the Plan,
to the extent permitted by Section 414(p) of the Code and other
applicable law, the Company may defer payment of a Participant's
benefits beyond the date otherwise provided in the Plan in the
event that the Company, in its discretion, determines that such
deferral is necessary for it to consider whether a domestic
relations order is a qualified domestic relations order (under
9. ADMINISTRATION
9.1 Plan Administration. San Diego Gas & Electric Company
("SDG&E") is the named fiduciary that has the discretionary
authority to control and manage the operation and administration
of the Plan, and SDG&E is the "administrator" and "plan sponsor"
of the Plan (as such terms are used in ERISA). SDG&E in its
sole discretion shall make such rules, interpretations and
computations and shall take such other actions to administer the
Plan as it may deem appropriate. Such rules, interpretations,
computations and actions shall be final, conclusive and binding
on all persons. In administering the Plan, SDG&E shall act in a
nondiscriminatory manner to the extent required by section
401(a) and related sections of the Code and shall at all times
discharge its duties in accordance with the standards set forth
in section 404(a)(1) of ERISA.
10. AMENDMENT OR TERMINATION OF PLAN 10.1 Amendment: The Committee shall have the right at any time, and from time to amend, in whole or in part, (i) any or all of the provisions of this Plan as may be necessary to continue the qualification of the Plan under Code Section 401(a) or as may otherwise be required under the Internal Revenue Code or ERISA, and (ii) any or all of the provisions of any trust agreement as may be established hereunder, in order to carry out the purposes of the Plan. The Board of Directors of SDG&E shall have the right at any time, and from time to time, to amend any or all provisions of the Plan. However, the right to amend the Plan, or any trust agreements established hereunder, shall be subject to the provisions of Article 10.3. In addition, SDG&E may impose limitations on the participation of current or former Highly Compensated Employees in order to satisfy applicable nondiscrimination rules.
11. TOP-HEAVY PLAN RULES If the Plan is or becomes a Top-Heavy Plan, the provisions of this Section 11 will supersede any conflicting provisions in the Plan.
Years of Service Percentage of Account Vested Less than 3 years 0% 3 or more years 100% |
12. MISCELLANEOUS PROVISIONS 12.1 Plan Provisions to Govern: To the extent that any provisions of any Trust Agreement, pursuant to which Plan assets are held in trust by a Trustee, are inconsistent with any provisions of the Plan, as stated herein, the provisions of the Plan shall govern. 12.2 Rights in Trust Fund: No person shall have any financial interest in or right to the Trust Fund or any part thereof, except as expressly Provided for in the Plan as governed by ERISA. 12.3 Non-Alienation of Benefits: No benefit which shall be Payable under the Plan shall be Subject in any manner to anticipation, alienation, sale, transfer, voluntary or involuntary assignment, pledge, garnishment, encumbrance, charge or any other operation of law; provided, however, the Trustee