EXHIBIT 10.29
BJ SERVICES
DEFERRED COMPENSATION PLAN
As Amended and Restated
Effective October 1, 2000
TABLE OF CONTENTS
ARTICLE PAGE
I - DEFINITIONS AND CONSTRUCTION............................ 3
II - PARTICIPATION........................................... 6
III - DEFERRALS AND ALLOCATIONS
OF INCOME OR LOSS EQUIVALENTS........................... 7
IV - DEEMED INVESTMENT OF FUNDS.............................. 11
V - BENEFITS................................................ 12
VI - ADMINISTRATION OF THE PLAN.............................. 15
VII - ADMINISTRATION OF FUNDS................................. 18
VIII - ADOPTING EMPLOYERS...................................... 19
IX - DISCONTINUANCE OR TERMINATION........................... 20
X - NATURE OF THE PLAN...................................... 21
XI - MISCELLANEOUS........................................... 22
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BJ SERVICES
DEFERRED COMPENSATION PLAN
W I T N E S S E T H :
WHEREAS, BJ Services Company, U.S.A. (the "COMPANY"), has heretofore
adopted the BJ SERVICES SUPPLEMENTAL RETIREMENT THRIFT PLAN (the "PLAN") to
provide deferred compensation for a select group of management or highly-
compensated employees;
WHEREAS, the Company desires to restate the Plan and amend the Plan in
several respects, including renaming the Plan as the "BJ Services Deferred
Compensation Plan";
NOW THEREFORE, the Plan is hereby restated in its entirety as follows with
no interruption of time, effective as of October 1, 2000, except as otherwise
indicated herein:
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I.
DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. The capitalized words or terms used in the Plan and
which are not otherwise defined herein shall have the same meanings as such
words or terms have in the BJ Services Retirement Thrift Plan, as the same may
be amended from time to time. Where the following words and phrases appear in
the Plan, they shall have the respective meanings set forth below, unless their
context clearly indicates to the contrary.
(1) ACCOUNT: An individual account for each Member to which is credited
amounts determined in accordance with Article III of the Plan. Each
account shall be divided into subaccounts to reflect the Member's deferrals
pursuant to Section 3.1 and/or Section 3.3 and the Employer's deferrals
pursuant to Section 3.2 and/or Section 3.4 and the allocation of net income
or net loss equivalents thereto pursuant to Section 3.6. Such subaccounts
shall be further divided as necessary to reflect the Member's elections
pursuant to Article V.
(2) BASIC COMPENSATION: An amount equal to a Member's "COMPENSATION," as such
term is defined under the Thrift Plan.
(3) BOARD: The Board of Directors of the Company.
(4) BONUS: The amount, if any, received by the Member under the annual bonus
plan in which Eligible Employees participate.
(5) CHAIRMAN: The Chairman of the Board.
(6) CODE: The Internal Revenue Code of 1986, as amended.
(7) COMMITTEE: The Benefits Committee established by the President of the
Company.
(8) COMPANY: BJ Services Company, U.S.A.
(9) COMPENSATION: The term "COMPENSATION" shall have the same meaning as is
assigned to such term under the Thrift Plan except that a Member's
Compensation (A) shall include amounts which he could have received in cash
in lieu of contributions made on his behalf by the Employer to this Plan
pursuant to Section 3.1 and Section 3.4(a), (B) for purposes other than for
Section 3.1(b), shall not be limited to the maximum amount of compensation
that can be considered by the Thrift Plan pursuant to section 401(a)(17) of
the Code and (C) shall include any increases as a result of job transfers
or wage rate changes during the Plan Year.
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(10) EFFECTIVE DATE: October 1, 2000 as to this restatement of the Plan. The
original effective date of the Plan was December 1, 1990.
(11) ELIGIBLE EMPLOYEE: Any individual who is employed by an Employer.
(12) EMPLOYER: The Company and any other entity that has been designated to
participate in the Plan pursuant to the provisions of Article VIII.
(13) ERISA: The Employee Retirement Income Security Act of 1974, as amended.
(14) EXCESS COMPENSATION: A Member's Excess Compensation for a Plan Year shall
be equal to the amount by which his Compensation for such year exceeds the
maximum amount of compensation that can be considered by the Thrift Plan
for such year pursuant to section 401(a)(17) of the Code.
(15) FISCAL YEAR: The Employer's fiscal year, which is the twelve consecutive
month period commencing October 1 of each year.
(16) FUND: The investment funds designated from time to time for the deemed
investment of Accounts pursuant to Article IV.
(17) LIMITATION: For each Plan Year, the dollar limitation in effect under
section 415(c)(1)(A) of the Code for such year.
(18) MEMBER: Any Eligible Employee who has become a Member pursuant to Article
II until such Eligible Employee ceases to be a Member pursuant to Section
2.2.
(19) MONTHLY EXCESS COMPENSATION: A Member's Monthly Excess Compensation for a
Plan Year shall be equal to one-twelfth of his Excess Compensation for such
year.
(20) PLAN: The BJ Services Deferred Compensation Plan, as amended from time to
time.
(21) PLAN YEAR: The twelve consecutive month period commencing January 1 of
each year.
(22) THRIFT PLAN: The BJ Services Retirement Thrift Plan, as amended from time
to time.
(23) TRUST: The trust established for the Plan under the Trust Agreement.
(24) TRUST AGREEMENT: The agreement entered into between the Company and the
Trustee establishing the Trust.
(25) TRUST FUND: The funds and properties held pursuant to the provisions of
the Trust Agreement, together with all income, profits and increments
thereto.
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(26) TRUSTEE: The trustee or trustees qualified and acting under the Trust
Agreement at any time.
(27) VALUATION DATES: The last day of March, June, September and December of
each Plan Year and any other interim Valuation Date determined by the
Committee on a nondiscriminatory basis. Effective as of March 1, 2001, the
term "Valuation Date" shall mean each day that the New York Stock Exchange
is open for business.
1.2 NUMBER AND GENDER. Wherever appropriate herein, words used in the
singular shall be considered to include the plural and the plural to include the
singular. The masculine gender, where appearing in this Plan, shall be deemed
to include the feminine gender.
1.3 HEADINGS. The headings of Articles and Sections herein are included
solely for convenience and if there is any conflict between such headings and
the text of the Plan, the text shall control.
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II.
PARTICIPATION
2.1 ELIGIBILITY. On or after the Effective Date, the Chairman, in his
sole discretion, shall select and notify in writing those Eligible Employees of
the Employer who shall become Members. If an Eligible Employee who was a Member
prior to a termination of employment with the Employer is rehired, such Eligible
Employee shall become a Member only if such Eligible Employee is again selected
to participate in the Plan by the Chairman.
2.2 CESSATION OF ACTIVE PARTICIPATION. Notwithstanding any provision
herein to the contrary, an Eligible Employee who has become a Member of the Plan
shall cease to be an active participant in the Plan immediately upon the earlier
of (a) the date the Chairman notifies the Eligible Employee he is no longer
eligible to participate in the Plan or (b) the date he is no longer an Eligible
Employee.
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III.
DEFERRALS AND
ALLOCATIONS OF INCOME OR LOSS EQUIVALENTS
3.1 MEMBER DEFERRALS.
(a) A Member may elect to defer receipt of an integral percentage of from
1% to 100% of his Excess Compensation for a Plan Year.
(b) A Member who makes the maximum Before-Tax Contributions allowable
under the Thrift Plan may elect to defer receipt of amount not to exceed 12% of
his Compensation, less his Before Tax Contributions to the Thrift Plan, for a
Plan Year.
(c) A Member may elect to defer receipt of an amount of his Compensation
for a Plan Year equal to the amount of the Member's Before-Tax Contributions
under the Thrift Plan distributed from the Thrift Plan during such Plan Year as
a result of the limitations contained in section 401(k)(3) of the Code.
(d) A Member's election to defer receipt of an amount of his Compensation
pursuant to this Section shall be made by executing and filing with the Employer
the forms prescribed by the Committee. If a Member makes a deferral election
for a Plan Year, a corresponding reduction shall be made to his Compensation
during such Plan Year. Compensation for a Plan Year not deferred pursuant to
this Section shall be received by such Member in cash.
(e) A Member's election to defer receipt of a portion of his Compensation
shall become effective as of the first day of the Plan Year that begins on or
after the election is executed by the Member and filed with the Employer.
Notwithstanding the foregoing, if an Eligible Employee initially becomes a
Member other than on the first day of a Plan Year, such Member's election to
defer receipt of a portion of his Compensation for such Plan Year may be made no
later than 30 days after he becomes a Member, but such election shall be
prospective only. A Member's election shall remain in force and effect for all
periods following the date of its execution until modified or terminated or
until such Member terminates his employment. A Member who has elected to defer
a portion of his Compensation may change his deferral election (within the
limits set forth above), effective as of the first day of any subsequent Plan
Year, by executing and delivering to the Employer a new election within the time
period prescribed by the Committee.
(f) A Member may cancel his election to defer receipt of a portion of his
Compensation effective as of the first day of any subsequent Plan Year, by
executing and delivering to the Employer the form prescribed by the Committee.
A Member who so cancels his election may again elect to defer a portion of his
Compensation, effective as of the first day of any subsequent Plan Year, by
executing and delivering to the Employer a new election within the time period
prescribed by the Committee.
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3.2 EMPLOYER DEFERRALS.
(a) For each calendar month, the Employer shall credit a Member's Account
with an amount which equals 50% of the deferrals made pursuant to Section 3.1(a)
on behalf of such Member during such month not in excess of 6% of such Member's
Excess Compensation for the payroll periods in such month with respect to which
deferrals pursuant to Section 3.1(a) were made. Further, for each calendar
month, the Employer shall credit a Member's Account with an amount which equals
50% of the deferrals made pursuant to Section 3.1(b) on behalf of such Member
during such month not in excess of 6% of such Member's Compensation for the
payroll periods in such month with respect to which deferrals pursuant to
Section 3.1(b) were made.
(b) For each Plan Year, the Employer shall credit a Member's Account with
an amount equal to the amount forfeited by such Member under the Thrift Plan
during such Plan Year as a result of the limitations contained in sections
401(k)(3) or 401(m)(2) of the Code.
(c) For each calendar month, the Employer shall also credit an additional
amount to the Account of each Member who is entitled to an allocation of
Employer Base Contributions under the Thrift Plan for such month. The amount
credited each month shall be a percentage of such Member's Monthly Excess
Compensation, if any, with such percentage being equal to the percentage
utilized under the Thrift Plan to determine the Member's Employer Base
Contribution for such month under such plan.
(d) For each calendar month, the Employer shall also credit an additional
amount to the Account of each Member who is entitled to an allocation of
Employer Supplemental Base Contributions under the Thrift Plan for such month.
The amount credited each month shall be a percentage of such Member's Monthly
Excess Compensation, if any, with such percentage being equal to the percentage
utilized under the Thrift Plan to determine the Member's Employer Supplemental
Base Contribution for such month under such plan.
(e) Notwithstanding any provision of the Plan to the contrary, amounts
credited to a Member's Account pursuant to Paragraph (c) and/or Paragraph (d)
above shall become nonforfeitable in the same manner as amounts allocated to the
Member's Employer Non-Matching Accounts under the Thrift Plan. Therefore, if
any portion of a Member's Employer Non-Matching Accounts under the Thrift Plan
is forfeited for any reason, a corresponding portion of the amounts credited to
the Member's Account pursuant to Paragraph (c) and/or Paragraph (d) above shall
be debited from such Account.
3.3 MEMBER DEFERRALS ATTRIBUTABLE TO BONUS. A Member may elect to defer
receipt of an integral percentage of from 1% to 100% of his Bonus for any Fiscal
Year under the Plan. A Member's election to defer receipt of a portion of his
Bonus under the Plan shall be made by executing and filing with the Employer the
forms prescribed by the Committee prior to the first day of the Fiscal Year
during which such Bonus is paid and shall be irrevocable. A Member's deferral
election pursuant to this Section shall be effected at the time such Bonus is
paid. Bonus for a Fiscal Year not deferred pursuant to this Section shall be
received by such Member in cash.
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3.4 DEFERRALS FOR MEMBERS WHOSE ANNUAL ADDITIONS UNDER THE THRIFT PLAN
EQUAL THE LIMITATION.
(a) For each calendar month in which the Employer determines that a
Member's Annual Additions under the Thrift Plan equal the Limitation in effect
for the Plan Year in which such month occurs, the Employer shall reduce such
Member's Basic Compensation by the amount by which such Member's Cash or
Deferred Contributions and/or Voluntary Contributions to the Thrift Plan must be
reduced solely in order for such member's Annual Additions under the Thrift Plan
to equal such Limitation. The amount by which a Member's Basic Compensation is
reduced pursuant to this Paragraph shall be (1) determined based upon the
Member's elections in effect at the relevant times under the Thrift Plan with
respect to Cash or Deferred Contributions and/or Voluntary Contributions and (2)
credited to such Member's Account under the Plan.
(b) For each calendar month in which the Employer determines that a
Member's Annual Additions under the Thrift Plan equal the Limitation in effect
for the Plan Year in which such month occurs, the Employer shall also credit
such Member's Account with an amount equal to the excess of:
(1) the amount of Employer contributions which would have been
allocated to the accounts of such Member under the Thrift Plan (other than
to his Deferred Income Account) for such month if the provisions of the
Thrift Plan were administered without regard to the limitations imposed by
section 415(c) of the Code on the amount of Annual Additions,
OVER
(2) the amount of Employer contributions which were in fact allocated
to the accounts of such Member under the Thrift Plan (other than to his
Deferred Income Account) for such month.
For purposes of determining the amount of Employer Matching Contributions
which would have been allocated to the account of a Member under the Thrift
Plan, the contributions to the Plan on a Member's behalf pursuant to Paragraph
(a) above shall be deemed to have been made to the Thrift Plan. Notwithstanding
any provision of the Plan to the contrary, amounts credited to a Member's
Account pursuant to this Paragraph (other than amounts representing reduced
allocations of Employer Matching Contributions under the Thrift Plan) shall
become nonforfeitable in the same manner as amounts allocated to the Member's
Employer Non-Matching Accounts under the Thrift Plan. Therefore, if any portion
of a Member's Employer Non-Matching Accounts under the Thrift Plan is forfeited
for any reason, a corresponding portion of the amounts credited to the Member's
Account pursuant to this Paragraph (other than amounts representing reduced
allocations of Employer Matching Contributions under the Thrift Plan) shall be
debited from such Account.
3.5 PAYMENTS TO TRUSTEE. The Employer shall pay an amount equal to the
deferrals under the Plan directly to the Trustee as soon as practicable. On or
about the date of any such payment, the Committee shall be informed as to the
amount of such payment. Deferrals made by a
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Member or on the Member's behalf shall be credited to the Member's Account as
received by the Trustee.
3.6 ALLOCATION OF NET INCOME OR NET LOSS EQUIVALENTS.
(a) As of each Valuation Date, the Trustee shall determine the net income
(or net loss) equivalents of each Fund within the Trust Fund since the
immediately preceding Valuation Date. The net income (or net loss) equivalent
of each Fund since the immediately preceding Valuation Date shall be ascertained
by the Trustee based upon changes in the net asset value in such manner as it
deems appropriate. As soon as is practicable after the end of each calendar
quarter, the Trustee shall deliver a written statement of such determination as
the Committee determines.
(b) For purposes of allocations of net income (or net loss) equivalents,
each subaccount under a Member's Account shall be divided into additional
subaccounts to reflect such Member's deemed investment designation of a
particular Fund or Funds pursuant to Article IV. As of each Valuation Date the
net income (or net loss) equivalents of each Fund, separately and respectively,
shall be allocated among the corresponding subaccounts of the Members who were
deemed to have had such corresponding subaccounts on the immediately preceding
Valuation Date; provided, however, that the balance credited to such subaccounts
as of the immediately preceding Valuation Date shall be reduced by the amount of
any payments made since the immediately preceding Valuation Date.
(c) With respect to each Member whose employment is terminated for any
reason, so long as there is any balance credited to his Account, such Account
shall continue to receive allocations pursuant to this Section.
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IV.
DEEMED INVESTMENT OF FUNDS
Each Member shall designate, in accordance with the procedures established
from time to time by the Committee, the manner in which the amounts credited to
his Account shall be deemed to be invested from among the Funds made available
from time to time pursuant to the provisions of the Trust Agreement. With
respect to each Member's Account, such Member may designate one of such Funds
for the deemed investment of all the amounts credited to such Account or he may
split the deemed investment of the amounts credited to such Account between such
Funds in such increments as the Committee may prescribe. No other type of
designation will be permitted. If a Member fails to make a proper designation,
then his Account shall be deemed to be invested in the Fund or Funds designated
by the Committee from time to time in a uniform and nondiscriminatory manner.
A Member may change his deemed investment designation for future amounts to
be credited to his Account. Any such change shall be made in accordance with
the procedures established by the Committee, and the frequency of such changes
may be limited by the Trustee in accordance with to the provisions of the
applicable Fund or Funds.
A Member may elect to convert his deemed investment designation with
respect to the amounts already credited to his Account. Any such conversion
shall be made in accordance with the procedures established by the Committee,
and the frequency of such conversions may be limited by the Trustee in
accordance with the provisions of the applicable Fund or Funds.
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V.
BENEFITS
5.1 PAYMENT ELECTION GENERALLY. Each Eligible Employee who becomes a
Member on or after the Effective Date shall elect the time and form of payment
of all or a portion of the amounts credited to his Account under the Plan by
executing and filing with the Employer an election in the form prescribed by the
Committee. Further, on or after the Effective Date, (a) any Member who had an
Account under the Plan on the day prior to the Effective Date may make an
initial election regarding time of payment of all or a portion of the amounts
credited to his Account under the Plan or (b) any Member may revise his election
regarding time or form of payment of all or a portion of the amounts credited to
his Account under the Plan; provided, however, that in either case such election
shall not be effective until the date that is twelve months after the date of
such election.
5.2 AMOUNT OF BENEFIT. The Member, or, in the event of the death of the
Member, the Member's designated beneficiary, shall be entitled to a benefit
equal in value to the balance credited to the Member's Account (or subaccount
thereof) as of the Valuation Date immediately preceding the date the payment of
such benefit is to be made or to commence pursuant to Section 5.3.
5.3 TIME OF PAYMENT. Payment of all or a portion of the amounts credited
to a Member's Account under Section 5.2 shall be made or commence as soon as
administratively practicable as of the date elected by such Member pursuant to
Section 5.1. A Member may elect payment of all or a portion of the amounts
credited to his Account hereunder be made or commenced as of any date; provided,
however, that (a) in no event shall any amount be paid earlier than the second
Plan Year following the Plan Year during which such amount was credited to a
Member's Account and (b) notwithstanding phrase (a), payment of all amounts
credited to a Member's Account shall be made or commence as soon as
administratively practicable after the date the Member's employment with the
Employer and all Controlled Entities terminates for any reason. In the event a
Member fails to elect the time when payment of his benefit is to be made or
commenced, such payment shall be made or commence as soon as administratively
practicable after the date the Member's employment with the Employer and all
Controlled Entities terminates for any reason. For purposes of this Plan, a
Member's employment shall not be considered to have terminated at any time when
the Employer is crediting amounts to such Member's Account pursuant to either
Section 3.2(c) or Section 3.4(b).
5.4 ALTERNATIVE FORMS OF BENEFIT PAYMENTS. A Member may elect to receive
payments in any one of the following forms:
(a) A lump sum, cash payment;
(b) Annual installment payments for a term certain of either 5, 10 or 15
years payable to the Member or, in the event of such Member's death prior to the
end of such term certain, to his designated beneficiary as provided in
Section 5.6.
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In the event a Member fails to elect the form in which his benefit payments
are to be made, such benefit payments shall be in the form of a lump sum, cash
payment to such Member or, in the event of such Member's death, to his
designated beneficiary as provided in Section 5.6. If a Member dies and if the
Member did elect the form in which his benefit payments are to be made, then
benefit payments shall be made to the Member's designated beneficiary in the
form elected by the Member. Notwithstanding any provision herein to the
contrary, in the event a Member's employment with the Employer and all
Controlled Entities terminates for any reason and the total amount credited to
the Member's Account does not exceed $25,000, the Committee may, in its sole
discretion, pay such amount in a lump sum, cash payment to such Member, or, in
the event of such Member's death, to his designated beneficiary as provided in
Section 5.6.
5.5 ELECTIVE WITHDRAWAL. A Member may elect at any time, by effecting the
election procedure prescribed by the Committee, to withdraw as a benefit all or
a portion of amounts credited to his Account pursuant to Section 3.3 (including
any net income or net loss equivalents allocated thereto) as of any Valuation
Date, subject to a withdrawal penalty of 10% of such withdrawn amounts as of
such Valuation Date. Upon any such withdrawal, the withdrawal penalty shall be
forfeited to the Employer.
5.6 DESIGNATION OF BENEFICIARIES.
(a) Each Member shall have the right to designate the beneficiary or
beneficiaries to receive payment of his benefit in the event of his death. Each
such designation shall be made by executing the beneficiary designation form
prescribed by the Committee and filing same with the Employer. Any such
designation may be changed at any time by execution of a new designation in
accordance with this Section.
(b) If no such designation is on file at the time of the death of the
Member or such designation is not effective for any reason as determined by the
Committee, then the designated beneficiary or beneficiaries to receive such
benefit shall be as follows:
(1) If a Member leaves a surviving spouse, his benefit shall be paid
to such surviving spouse;
(2) If a Member leaves no surviving spouse, his benefit shall be paid
to such Member's executor or administrator, or to his heirs at law if there
is no administration of such Member's estate.
5.7 PAYMENT OF BENEFITS. To the extent the Trust Fund has sufficient
assets, the Trustee shall pay benefits to Members or their beneficiaries, except
to the extent the Employer pays the benefits directly and provides adequate
evidence of such payment to the Trustee. To the extent the Trustee does not or
cannot pay benefits out of the Trust Fund, the benefits shall be paid by the
Employer. Any benefit payments made to a Member or for his benefit shall be
debited to such Member's Account. All benefit payments shall be made in cash to
the fullest extent practicable.
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5.8 NO LOANS. Members shall not at any time be permitted to borrow from
the Trust Fund.
5.9 UNCLAIMED BENEFITS. In the case of a benefit payable on behalf of a
Member, if the Committee is unable to locate the Member or beneficiary to whom
such benefit is payable, upon the Committee's determination thereof, such
benefit shall be forfeited to the Employer. Notwithstanding the foregoing, if
subsequent to any such forfeiture the Member or beneficiary to whom such benefit
is payable makes a valid claim for such benefit, such forfeited benefit shall be
restored to the Plan by the Employer.
5.10 CLAIMS PROCEDURE. In the event that a Member or beneficiary's claim
for a benefit under the Plan is denied or modified, the Committee shall furnish
a written notice to such claimant within ninety days (or within 180 days if
additional information requested by the Committee necessitates an extension of
the ninety-day period) that (a) states the specific reason or reasons for such
denial or modification, (b) provides specific reference to pertinent Plan
provisions on which the denial or modification is based, (c) provides a
description of any additional material or information necessary for the Member,
his beneficiary, or representative to perfect the claim and an explanation of
why such material or information is necessary and (d) explains the Plan's claim
review procedure. If the Member, his beneficiary, or a representative of such
Member or beneficiary desires to have such denial or modification reviewed, he
must, within sixty days following receipt of the notice of such denial or
modification, submit a written request for review by the Committee of its
initial decision. In connection with such request, the Member, his beneficiary,
or the representative of such Member or beneficiary may review any pertinent
documents upon which such denial or modification was based and may submit issues
and comments in writing. Within sixty days following such request for review
the Committee shall, after providing a full and fair review, render its final
decision in writing to the Member, his beneficiary or the representative of such
Member or beneficiary stating specific reasons for such decision and making
specific references to pertinent Plan provisions upon which the decision is
based. If special circumstances require an extension of such sixty-day period,
the Committee's decision shall be rendered as soon as possible, but not later
than 120 days after receipt of the request for review. If an extension of time
for review is required, written notice of the extension shall be furnished to
the Member, beneficiary, or the representative of such Member or beneficiary
prior to the commencement of the extension period. Members of the Committee
shall not participate in any action or determination regarding their own
benefits hereunder.
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VI.
ADMINISTRATION OF THE PLAN
6.1 APPOINTMENT OF COMMITTEE. The general administration of the Plan
shall be vested in the Committee which shall consist of one or more persons.
6.2 REMOVAL. At any time during his term of office, and for any reason, a
member of the Committee may be removed by the Chairman. Any member of the
Committee who is an Employee shall automatically cease to be a member of the
Committee as of the date he ceases to be employed by the Employer or a
Controlled Entity.
6.3 OFFICERS, RECORDS AND PROCEDURES. The Committee may select officers
and may appoint a secretary who need not be a member of the Committee. The
Committee shall keep appropriate records of its proceedings and the
administration of the Plan and shall make available for examination during
business hours to any Member or beneficiary such records as pertain to that
individual's interest in the Plan. The Committee shall designate the person or
persons who shall be authorized to sign for the Committee and, upon such
designation, the signature of such person or persons shall bind the Committee.
6.4 MEETINGS. The Committee shall hold meetings upon such notice and at
such time and places as it may from time to time determine. Notice to a member
shall not be required if waived in writing by that member. A majority of the
members of the Committee duly appointed shall constitute a quorum for the
transaction of business. All resolutions or other actions taken by the
Committee at any meeting where a quorum is present shall be by vote of a
majority of those present at such meeting and entitled to vote. Resolutions may
be adopted or other action taken without a meeting upon written consent signed
by all of the members of the Committee.
6.5 INDEMNITY. To the extent permitted by applicable law, the Company
shall indemnify and save harmless the Board, the Chairman, the members of the
Committee and each employee of the Employer who is a delegate of the Committee
against any and all expenses and liabilities arising out of their discharge in
good faith of responsibilities under or incident to the Plan, including any
expenses and liabilities that are caused by or result from an act or omission
constituting the negligence of such individual in the performance of such
responsibilities, but excluding expenses and liabilities that are caused by or
result from such individual's own gross negligence or willful misconduct.
Expenses against which such individual shall be indemnified shall include,
without limitation, the amounts of any settlement or judgment, costs, counsel
fees, and related charges reasonably incurred in connection with a claim
asserted or a proceeding brought or settlement thereof. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, as such
indemnities are permitted under applicable law.
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6.6 SELF-INTEREST OF COMMITTEE MEMBERS. No member of the Committee shall
have any right to vote or decide upon any matter relating solely to himself
under the Plan or to vote in any case in which his individual right to claim any
benefit under the Plan is particularly involved. In any case in which a member
of the Committee is so disqualified to act and the remaining members cannot
agree, the Chairman shall appoint a temporary substitute member to exercise all
of the powers of the disqualified member concerning the matter in which he is
disqualified.
6.7 COMPENSATION AND BONDING. The members of the Committee shall not
receive compensation with respect to their services for the Committee. To the
extent required by applicable law, or required by the Company, the members of
the Committee shall furnish bond or security for the performance of their duties
hereunder.
6.8 COMMITTEE POWERS AND DUTIES. The Committee shall supervise the
administration and enforcement of the Plan according to the terms and provisions
hereof and shall have all powers necessary to accomplish these purposes,
including, but not by way of limitation, the right, power, authority and duty:
(a) to make rules, regulations and bylaws for the administration of the
Plan which are not inconsistent with the terms and provisions hereof, provided
such rules, regulations and bylaws are evidenced in writing and copies thereof
are delivered to the Trustee and to the Company;
(b) to construe all terms, provisions, conditions and limitations of the
Plan;
(c) to correct any defect or supply any omission or reconcile any
inconsistency that may appear in the Plan, in such manner and to such extent as
it shall deem expedient to carry the Plan into effect for the greatest benefit
of all interested parties;
(d) to employ and compensate such accountants, attorneys, investment
advisors and other agents and employees as the Committee may deem necessary or
advisable in the proper and efficient administration of the Plan;
(e) consistent with provisions of the Plan, to determine the amount,
manner and time of payment of any benefits and to prescribe procedures to be
followed by distributees in obtaining benefits;
(f) to make a determination as to the right of any person to a benefit
under the Plan; and
(g) to receive and review reports from the Trustee as to the financial
condition of the Trust Fund, including its receipts and disbursements.
Notwithstanding the provisions of Paragraph (f) above, in the event that
the Committee denies or modifies a claim for benefits by a Member or beneficiary
who believes that he is entitled to such benefits, such Member or beneficiary
may apply in writing directly to the Trustee for payment of such benefits. For
purposes of the preceding sentence, if the Committee does not issue a written
denial or modification of a claim for benefits within five business days after
it receives such claim,
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the claim shall be deemed denied. An application to the Trustee for payment of
benefits shall be processed by the Trustee in accordance with the terms of the
Trust Agreement.
6.9 RIGHT TO DELEGATE. The Committee may from time to time allocate to
one or more of the Employer's officers, employees, or agents, and may delegate
to any other person or organization, any of its powers, duties, and
responsibilities with respect to the operation and administration of the Plan,
including, but not limited to, the day-to-day administration of the Plan, and
may employ, and authorize any person to whom any of its fiduciary
responsibilities have been delegated to employ, persons to render advice with
regard to any fiduciary responsibility held hereunder. Upon such designation
and acceptance, the Committee shall have no liability for the acts or omissions
of any such designee as long as the Committee does not violate its fiduciary
responsibility in making or continuing such designation. All allocations and
delegations of fiduciary responsibility shall be reviewed at least annually by
the Committee, as applicable, and shall be terminable upon such notice as the
Committee in its discretion deems reasonable and prudent under the
circumstances.
6.10 EMPLOYER TO SUPPLY INFORMATION. The Employer shall supply full and
timely information to the Committee relating to the Compensation of all Members,
their ages, their retirement, death or other cause for termination of employment
and such other pertinent facts as the Committee may require. The Employer shall
advise the Trustee of such of the foregoing facts as are deemed necessary for
the Trustee to carry out the Trustee's duties under the Plan. When making a
determination in connection with the Plan, the Committee shall be entitled to
rely upon the aforesaid information furnished by the Employer.
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VII.
ADMINISTRATION OF FUNDS
7.1 PAYMENT OF EXPENSES. All expenses incident to the administration of
the Plan and Trust, including but not limited to, legal, accounting, Trustee
fees, expenses of the Committee and the cost of furnishing any bond or security
required of the Committee, may be paid by the Employer and, if not paid by the
Employer, shall be paid by the Trustee from the Trust Fund.
7.2 TRUST FUND PROPERTY. All income, profits, recoveries, contributions,
forfeitures and any and all moneys, securities and properties of any kind at any
time received or held by the Trustee shall be held for investment purposes as a
commingled Trust Fund pursuant to the terms of the Trust Agreement. The
Committee shall maintain an Account in the name of each Member, but the
maintenance of an Account designated as the Account of a Member shall not mean
that such Member shall have a greater or lesser interest than that due him by
operation of the Plan and shall not be considered as segregating any funds or
property from any other funds or property contained in the commingled fund. No
Member shall have any title to any specific asset in the Trust Fund.
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VIII.
DESIGNATION OF OTHER EMPLOYERS
The Committee may designate any organization eligible by law to participate
in the Plan as an Employer by written instrument delivered to the designated
Employer. Such written instrument shall specify the effective date of such
designation and shall become, as to such designated Employer and persons in its
employment, a part of the Plan. Each designated Employer shall be conclusively
presumed to have consented to such designation and to have agreed to be bound by
the Plan upon its submitting any information pursuant to the terms of the Plan.
The terms of the Plan may be modified as applied to the Employer only by written
agreement between the Company and the designated Employer. Any Employer may, by
appropriate action of its Board of Directors or noncorporate counterpart with
written notice to the Committee, terminate its participation in the Plan.
Moreover, the Committee may, in its discretion, terminate an Employer's Plan
participation at any time by written notice to such Employer.
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IX.
DISCONTINUANCE OR TERMINATION
9.1 DECLARATION OF INTENT. The Employer has established the Plan with the
bona fide intention and expectation that from year to year it will be able to,
and will deem it advisable to, continue deferrals as herein provided. However,
the Board realizes that circumstances not now foreseen, or circumstances beyond
its control, may make it either impossible or inadvisable for the Employer to
continue deferrals hereunder. Therefore, the Board shall have the power to
discontinue deferrals under the Plan, terminate the Plan or partially terminate
the Plan at any time hereafter. The Committee and the Trustee shall be notified
of such discontinuance, termination or partial termination.
9.2 ADMINISTRATION OF PLAN IN CASE OF DISCONTINUANCE OR TERMINATION.
(a) Upon discontinuance or termination, any previously uncredited
deferrals and net income (or net loss) equivalents shall be credited among the
Accounts of the Members on such date of discontinuance or termination according
to the provisions of Article III, as if such date of discontinuance or
termination were a Valuation Date. Thereafter, the net income (or net loss)
equivalents shall continue to be allocated to the Accounts of the Members until
the balances credited thereto are distributed. In the event of termination, the
date of the final distribution shall be treated as a Valuation Date.
(b) In the case of a total or partial termination of the Plan, and in the
absence of a Plan amendment to the contrary, the balance credited to the Account
of a Member for whom the Plan is terminated shall be paid to such Member or his
designated beneficiary in the manner specified by the Committee, which may
include the payment of a single, lump sum cash payment in full satisfaction of
all such Member's or beneficiary's benefits hereunder.
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X.
NATURE OF THE PLAN
The Employer intends and desires by the adoption of the Plan to recognize
the value to the Employer of the past and present services of employees covered
by the Plan and to encourage and assure their continued service with the
Employer by making more adequate provision for their future retirement security.
The establishment of the Plan is made necessary by certain benefit limitations
which are imposed on the Thrift Plan by ERISA and by the Code. The Plan is
intended to constitute an unfunded, unsecured promise of the Employer to pay
benefits to each Member (or his beneficiary) as herein provided out of the
Employer's general assets. Nevertheless, subject to the terms hereof and of the
Trust Agreement, the Employer shall transfer money or other property to the
Trustee and the Trustee shall pay Plan benefits to Members and their
beneficiaries out of the Trust Fund.
As a means of administering the assets of the Plan, the Employer has
adopted the Trust pursuant to which The Chase Manhattan Bank serves as Trustee
as of the Effective Date. The Employer shall remain the owner of all assets in
the Trust Fund and the assets shall only be subject to the claims of Employer
creditors if the Employer becomes insolvent. As used in this Article X, the
Employer shall be deemed to be "INSOLVENT" if (a) the Employer is unable to pay
its debts as they come due or (b) the Employer is subject to a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute). Determinations as to the insolvency of the Employer shall be
made in accordance with the provisions of the Trust Agreement. Further, the
provisions of the Trust Agreement shall govern the disposition of the Trust Fund
in the event the Employer is insolvent or in the event the Trustee receives a
written notice alleging the Employer is insolvent. No Member or beneficiary
shall have any preferred claim to, or any beneficial ownership interest in, any
assets of the Trust Fund prior to the time such assets are paid to such Member
or beneficiary as benefits.
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XI.
MISCELLANEOUS
11.1 NOT CONTRACT OF EMPLOYMENT. The adoption and maintenance of this
Plan shall not be deemed to be a contract between the Employer and any person or
to be consideration for the employment of any person. Nothing herein contained
shall be deemed to give any person the right to be retained in the employ of the
Employer or to restrict the right of the Employer to discharge any person at any
time nor shall the Plan be deemed to give the Employer the right to require any
person to remain in the employ of the Employer or to restrict any person's right
to terminate his employment at any time.
11.2 ALIENATION OF INTEREST FORBIDDEN. The interest of a Member or his
beneficiary or beneficiaries hereunder may not be sold, transferred, assigned,
or encumbered in any manner, either voluntarily or involuntarily, and any
attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be null and void; neither shall the benefits hereunder be
liable for or subject to the debts, contracts, liabilities, engagements or torts
of any person to whom such benefits or funds are payable, nor shall they be an
asset in bankruptcy or subject to garnishment, attachment or other legal or
equitable proceedings. The preceding notwithstanding, the Committee shall
comply with the terms and provisions of an order that satisfies the requirements
for a "qualified domestic relations order" as defined in section 206(d) of ERISA
including an order that requires distributions to an alternate payee prior to a
Member's "earliest retirement age" as such term is defined in section
206(d)(3)(E)(ii) of ERISA.
11.3 AMENDMENT. The Company may from time to time, in its discretion,
amend, in whole or in part, any or all of the provisions of the Plan on behalf
of the Company and all Employers; provided, however, that no amendment may be
made that would impair the rights of a Member with respect to amounts already
credited to his Account.
11.4 SEVERABILITY. If any provision of this Plan shall be held illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining provisions hereof; instead, each provision shall be fully severable
and the Plan shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
11.5 GOVERNING LAWS. All provisions of the Plan shall be construed in
accordance with the laws of Texas except to the extent preempted by federal law.
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EXECUTED effective as of October 1, 2000.
BJ SERVICES COMPANY, U.S.A.
By:
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Name:
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Title:
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