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EXHIBIT 10.1
FIRST AMENDMENT TO
EMPLOYEE STOCK OWNERSHIP PLAN OF
PRESIDIO OIL COMPANY
(Amendment and Third Restatement
Effective January 1, 1989)
WITNESSETH:
WHEREAS, Presidio Oil Company (the "Company") established the
Employee Stock Ownership Plan of Presidio Oil Company (the "Plan") pursuant to
an instrument effective July 1, 1981, for the purpose of providing retirement
benefits to the employees of the Company;
WHEREAS, in order to comply with the provisions of the Tax
Reform Act of 1986 ("TRA '86"), the Omnibus Budget Reconciliation Acts of 1986
and 1987 ("OBRA '86" and "OBRA '87", respectively), the Technical and
Miscellaneous Revenue Act of 1988 ("TAMRA") and final regulations promulgated
under the Employee Retirement Income Security Act of 1974 ("ERISA") and the
Internal Revenue Code of 1986, as amended, the Plan was restated in its
entirety effective January 1, 1989; and
WHEREAS, the Internal Revenue Service has requested certain
amendments to the Plan during its' review of the Company's determination letter
request filing.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, it is agreed by the Company, subject to the
approval of the United States Treasury Department, that the Plan is hereby
amended effective January 1, 1989, except where otherwise indicated herein, to
provide as follows:
1. Section 2.10 of the Plan is restated to read as follows:
"2.10 "COMPENSATION" shall mean Compensation as defined
in Section 4.3 for purposes of applying the limitations of that
Section but excluding all of the following items (even if
included in gross income) (i) reimbursements or other expense
allowances, (ii) fringe benefits, (iii) moving expenses, (iv)
deferred compensation and (v) welfare benefits but including
any elective contributions that are made by the Company on
behalf of Employees that are not includible in gross income
under Code Sections 125, 402(a)(8) and 402(h).
Compensation in excess of $200,000 shall be disregarded.
Such amount shall be adjusted at the same time and in such
manner as permitted under Code Section 415(d). In applying
this limitation, the family group of
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a Highly Compensated Participant who is subject to the Family
Member aggregation rules of Code Section 414(q)(6) because such
Participant is either a "five percent owner" of the Company or
one of the ten (10) Highly Compensated Employees paid the
greatest "415 Compensation" during the year, shall be treated
as a single Participant, except that for this purpose Family
Members shall include only the affected Participant's spouse
and any lineal descendants who have not attained age nineteen
(19) before the close of the year. If, as a result of the
application of such rules, the adjusted $200,000 limitation is
exceeded, then the limitation shall be prorated among the
affected individuals in proportion to each such individual's
Compensation as determined under this Section prior to the
application of this limitation.
For Plan Years beginning prior to January 1, 1989, the
$200,000 limit (without regard to Family Member aggregation)
shall apply only to Top Heavy Plan Years and shall not be
adjusted.
Effective for Plan Years beginning on or after January 1,
1994, the annual Compensation of each Employee under the Plan
shall not exceed $150,000 as adjusted for increases in the cost
of living in accordance with Code Section 401(a)(17)(B)."
2. Section 2.30 is hereby amended by adding the following sentence:
"Stock shall satisfy the requirements of Qualifying
Employer Security."
3. Section 3.1 is hereby amended by adding the following sentence
at the end of the third paragraph:
"For purposes of eligibility to participate in the Plan,
a temporary employee is an Employee who is paid on an hourly
basis and who, upon hire, is advised that he is employed for a
specific project of limited duration and that upon completion
of such project, employment will cease."
4. Section 3.3 is hereby amended by adding the following second
paragraph:
"An Employee may elect not to participate in the Plan for
any Plan Year by filing with the Committee a written notice of
non-participation. A new election shall be required for each
such Plan Year. Such election may be made retroactively, but
not for any period during which a benefit shall have accrued to
the Participant. Upon the expiration of his period of
non-participation the Employee shall immediately participate in
the Plan. A Participant who shall have elected not to
participate in the Plan for a Plan Year shall not thereafter,
by revocation of election or otherwise, be entitled to be or
become an active Participate for such Plan Year. The operation
of this non-participation provision may be suspended in whole
or in part by decision of the Committee if it shall determine,
upon advice of counsel, that
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voluntary non-participation may endanger the tax qualified
status of the Plan."
5. Section 4.2 is hereby restated effective January 1, 1987 to read
as follows:
"4.2 PARTICIPANT CONTRIBUTIONS. Participants are not
permitted to contribute to the Plan."
6. Section 4.5 is hereby restated to read as follows:
"4.5 SPECIAL ESOP ALLOCATION LIMITATION. Effective
for Plan Years beginning after July 12, 1989, if no more than
one-third (1/3) of the Company contributions to the ESOP for a
year which are deductible under paragraph (9) of Section 404(a)
of the Code are allocated to Highly Compensated Employees the
Annual Addition limitations imposed by this Article shall not
apply to:
(a) Forfeitures of Company Stock (within the
meaning of Section 409 of the Code) under the ESOP if
such securities were acquired with the proceeds of an
Exempt Loan (as described in Section 404(a)(9)(A) of the
Code), or
(b) Company contributions to the ESOP which are
deductible under Section 404(a)(9)(B) of the Code and
charged against the Participant's Account."
7. Section 11.4 is amended by restating the second sentence thereof
to read as follows:
"If the Company does not have a "registration-type class
of securities", each Participant shall be entitled to vote the
shares of Stock, including fractional shares, allocated to his
Account with respect to any corporate matter which involves the
voting of such shares with respect to the consolidation,
recapitalization, reclassification, liquidation, dissolution,
sale of substantially all of a trade or business, or such
similar transaction as the Secretary of the Treasury may
prescribe in regulations."
8. Section 11.10 is amended by restating paragraph (a) to read as
follows:
"(a) As soon as practicable after the
commencement of an exchange offer or tender offer (the
"Offer") for shares of Stock, the Committee shall use its
best efforts to cause each Participant to be advised in
writing of the terms of the Offer and to be provided the
forms by which the Participant may instruct the Trustee,
or revoke such instruction, to the extent permitted by
the terms of the Offer, to exchange or tender, as the
case may be, all or a portion of the Stock
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allocated to his Account. The Trustee shall follow the
direction of each Participant. All shares of Stock that
have been allocated to Participants' accounts for which
instructions have not been received shall not be
exchanged or tendered, as the case may be. Shares of
Stock that have not been allocated to Participants'
accounts shall be exchanged or tendered, as the case may
be, by the Trustee but only as directed by the
Committee."
9. Section 12.11 is restated to read as follows:
"12.11 NON-TERMINABLE PROVISIONS. Notwithstanding the
fact that the Plan may cease to be an Employee Stock Ownership
Plan, Stock acquired with proceeds of an Exempt Loan shall
continue to be subject to the provisions of this Article and
Sections 11.7 and 11.8."
10. Section 13.4 is restated to read as follows:
"13.4 EFFECT OF DISAFFILIATION OR WITHDRAWAL. If at
the time of disaffiliation or withdrawal the disaffiliating or
withdrawing corporation shall by resolution of its board of
directors determine to adopt a substantially identical plan,
the Trustee shall transfer to the trustee of the new plan all
of the assets held for the benefit of employees of the
disaffiliating or withdrawing corporation. Such payment shall
operate as a complete discharge of the Trustee, and of all
corporations except the disaffiliating or withdrawing
corporation, of all obligations under this Plan to employees of
the disaffiliating or withdrawing corporation and to their
beneficiaries. A new plan shall not be deemedsubstantially
identical to this Plan if it provides slower vesting than this
Plan, and nothing in this subsection shall authorize the
divesting of any vested portion of any Employee's Account.
This Section shall be subject to the provisions of Article X."
11. Section 16.2 is hereby amended by adding the following at the
end thereof:
"A Participant may receive the Eligible Rollover
Distribution at any time after the Committee clearly informs
the Participant that he has the right to a period of at least
30 days after receiving the notice to consider the decision of
whether or not to elect a distribution, and the Participant,
after receiving the notice, affirmatively elects a
distribution."
ATTEST: PRESIDIO OIL COMPANY
By:/s/Bruce R. DeBoer By:/s/ Robert L. Smith
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Bruce R. DeBoer Robert L. Smith
Secretary President
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