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Exhibit 10.26
Prototype Cash or Deferred
Profit-Sharing Plan #002
NONSTANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING
PLAN AND TRUST
SPONSORED BY
AMERICAN FUNDS DISTRIBUTORS, INC.
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Prototype Plan and Trust/Basic Plan Document #03 (the
"Plan"). If multiple Employers are adopting the Plan, complete Section I based
on the lead Employer. Additional Employers may adopt this Plan by attaching
executed signature pages to the back of the Employer's Adoption Agreement.
1. EMPLOYER INFORMATION
EMPLOYER'S NAME:
NORTH COAST ENERGY, INC
ADDRESS:
1993 CASE PARKWAY
TWINSBURG, OH 44087
PRINCIPAL ADDRESS (if different):
TELEPHONE NUMBER: (330) 425-2330
TAX ID NUMBER: 34-1792016
EMPLOYER'S FISCAL YEAR: MARCH 31
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Profit-Sharing Plan #002
FORM OF BUSINESS:
[ ] Sole Proprietor
[ ] Partnership
[ ] "S" Corporation
[X] Corporation
[ ] Other:__________________________
MEMBER OF:
[X] Controlled Group
[ ] Affiliated Service Group
[ ] Group of trade or businesses under common control
DATE OF INCORPORATION: APRIL 1981
NAME OF PLAN: NORTH COAST ENERGY, INC. EMPLOYEES' PROFIT SHARING PLAN
THREE DIGIT PLAN NUMBER
FOR ANNUAL RETURN/REPORT: 001
2. EFFECTIVE DATE
2.(a) This is a new Plan having an effective date of
2.(b) This is an amended Plan.
The effective date of the original Plan was APRIL 1, 1984
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The effective date of the amended Plan is APRIL 1, 2000
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2.(c) If different from above, the Effective Date for the Plan's
Elective Deferral provisions shall be _____________.
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3. DEFINITIONS
3.(a) "ALLOCATION DATE(S)" Allocations to Participant Accounts will be done
in accordance with Article V of the Plan:
[ ] (i) daily.
[X] (ii) monthly.
[ ] (iii) quarterly.
[ ] (iv) semi-annually.
[ ] (v) annually.
3.(b) "COMPENSATION" Compensation shall be determined on the basis of the:
[X] (i) Plan Year.
[ ] (ii) Employer's taxable year.
[ ] (iii) calendar year.
Compensation [X] shall [ ] shall not include Employer contributions made
pursuant to a Salary Savings Agreement, for this Plan or any other plan, which
are not includable in the gross income of the Employee for the reasons indicated
in the definition of Compensation at 1. 13 of the Plan.
Compensation [X] shall [ ] shall not be limited to Compensation earned while a
Participant in the Plan. "Shall" may only be elected if Plan Year is chosen as
the computation period at 3(b).
Compensation shall be determined on the basis of the following safe-harbor
definition of Compensation in IRS Regulation Section 1.414(s)-1(c):
[X] (iv) Code Section 3401(a) - W-2 income subject to income tax withholding.
[ ] (v) Code Section 415 - W-2 income, share of profits and other taxable
income.
For purposes of the Plan, Compensation shall be limited to $______, the maximum
amount which will be considered for Plan purposes. [If an amount is specified,
it will limit the amount of contributions allowed on behalf of higher
compensated Employees. Completion of this section is not intended to coordinate
with the limitation on Compensation under Code Section 401(a)(17), thus the
amount should be less than such limitation as adjusted for cost-of-living
increases.]
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Profit-Sharing Plan #002
Exclusions From Compensation:
[ ] (vi) overtime.
[ ] (vii) bonuses.
[ ] (viii) commissions.
[X] (ix) FRINGE BENEFITS.
NOTE: Any exclusion of Compensation only applies to Employer
discretionary contributions under Section 7(e) and does not
apply to any contribution which is qualified or subject to
antidiscrimination testing. Such exclusions must also satisfy
the requirements of Section 1.401(a)(4) of the Income Tax
Regulations and Code Section 414(s) and the regulations
thereunder.
3.(c) "ENTRY DATE"
[ ] (i) The first day of the Plan Year nearest the date on which an
Employee meets the eligibility requirements.
[X] (ii) The earlier of the first day of the Plan Year or the first
day of the seventh month of the Plan Year coinciding with
or following the date on which an Employee meets the
eligibility requirements.
[ ] (iii) The first day of the Plan Year following the date on which
the Employee meets the eligibility requirements. If this
election is made, the Service requirement at 4(a)(ii) may
not exceed 1/2 year and the age requirement at 4(b)(ii) may
not exceed 20-1/2.
[ ] (iv) The first day of the month or if earlier the first day of
the Plan Year coinciding with or following the date on
which an Employee meets the eligibility requirements.
[ ] (v) The first day of the Plan Year, or the first day of the
fourth, seventh or tenth month of the Plan Year coinciding
with or following the date on which an Employee meets the
eligibility requirements.
3.(d) HOURS OF SERVICE shall be determined on the basis of the method
selected below. Only one method may be selected. The method selected
shall be applied to all Employees covered under the Plan as follows:
[X] (i) on the basis of actual hours for which an Employee is paid
or entitled to payment.
[ ] (ii) on the basis of days worked.
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An Employee shall be credited with ten (10) Hours of Service if under
paragraph 1.43 of the Plan such Employee would be credited with at
least one (1) Hour of Service during the day.
[ ] (iii) on the basis of weeks worked. An Employee shall be credited
with forty-five (45) Hours of Service if under paragraph
1.43 of the Plan such Employee would be credited with at
least one (1) Hour of Service during the week.
[ ] (iv) on the basis of semi-monthly payroll periods. An Employee
shall be credited with ninety-five (95) Hours of Service if
under paragraph 1.43 of the Plan such Employee would be
credited with at least one (1) Hour of Service during the
semi-monthly payroll period.
[ ] (v) on the basis of months worked. An Employee shall be
credited with one-hundred-ninety (190) Hours of Service if
under paragraph 1.43 of the Plan such Employee would be
credited with at least one (1) Hour of Service during the
month.
[ ] (vi) on the basis of Elapsed Time, as provided in Article XVI of
the Plan.
3.(e) "LIMITATION YEAR" The 12-consecutive month period commencing on APRIL 1
and ending on MARCH 31.
If applicable, the Limitation Year will be a short Limitation Year
commencing on _______________________ and ending on _________________.
Thereafter, the Limitation Year shall end on the date last specified.
3.(f) "NET PROFIT"
[X] (i) Not applicable. Profits will not be required for any
contributions to the Plan.
[ ] (ii) As defined in paragraph 1.50 of the Plan.
[ ] (iii) Shall be defined as:
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(Only use if definition in paragraph 1.50 of the Plan is to be superseded.)
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3.(g) "PLAN YEAR" The 12-consecutive month period commencing on APRIL 1 and
ending on MARCH 31.
If applicable, the Plan Year will be a short Plan Year commencing
on_________________and ending on___________. Thereafter, the Plan Year
shall end on the date last specified.
3.(h) "QUALIFIED EARLY RETIREMENT AGE" For purposes of making distributions
under the provisions of a Qualified Domestic Relations Order, the
Plan's Qualified Early Retirement Age with regard to the Participant
against whom the Order is entered [X] shall [ ] shall not be the date
the Order is determined to be qualified. If "shall" is elected, this
will only allow payout to the alternate payee(s).
3.(i) "QUALIFIED JOINT AND SURVIVOR ANNUITY" The safe-harbor provisions of
paragraph 8.7 of the Plan [ ] are [X] are not applicable. If not
applicable, the survivor annuity shall be 50 % (50%, 66-2/3%, 75% or
100%) of the annuity payable during the lives of the Participant and
Spouse. If no answer is specified, 50% will be used.
3.(j) "TAXABLE WAGE BASE" [paragraph 1.81]
[X] (i) Not Applicable - Plan is not integrated with Social
Security.
[ ] (ii) The maximum earnings considered wages for such Plan Year
under Code Section 3121(a).
[ ] (iii) ______% (not more than 100%) of the amount considered
wages for such Plan Year under Code Section 3121(a).
[ ] (iv) $_____, provided that such amount is not in excess of the
amount determined under subsection (ii) above.
[ ] (v) For the 1989 Plan Year $10,000. For all subsequent Plan
Years, 20% of the maximum earnings considered wages for
such Plan Year under Code Section 3121(a).
NOTE: Using less than the maximum at subsection (ii) may result in a change
in the allocation formula in Section 7(f) hereof.
3.(k) "YEAR OF SERVICE" (This option is not applicable if Hours of Service
are determined on the basis of Elapsed Time selected under Section
3(d)(vi) above.)
(i) For Eligibility Purposes: The 12-consecutive month period
during which an Employee is credited with 1000 (not more than
1,000) Hours of Service.
(ii) For Allocation Accrual Purposes: The 12-consecutive month
period during which an Employee is credited with 1000 (not
more than 1,000) Hours of Service.
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(iii) For Vesting Purposes: The 12-consecutive month period during
which an Employee is credited with 1000 (not more than 1,000)
Hours of Service.
4. ELIGIBILITY REQUIREMENTS
Employees meeting the following Service and Age requirements shall be
eligible to participate in the Plan unless excluded under Section 4(c) below.
4.(a) SERVICE:
[ ] (i) The Plan shall have no Service requirement.
[X] (ii) The Plan shall cover only Employees having
completed at least 1 [not more than three (3)]
Years of Service. If more than one (1) is
specified, for Plan Years beginning in 1989 and
later, the answer will be deemed to be one (1).
NOTE: If the eligibility period selected is less than one year, an
Employee will not be required to complete any specified number
of Hours of Service to receive credit for such period.
4. (b) AGE:
[ ] (i) The Plan shall have no minimum age requirement.
[X] (ii) The Plan shall cover only Employees having attained
age 21 (not more than age 21).
4.(c) CLASSIFICATION:
The Plan shall cover all Employees who have met the age and Service
requirements with the following exceptions:
[ ] (i) no exceptions.
[X] (ii) the Plan shall exclude Employees included in a unit of
Employees covered by a collective bargaining agreement
between the Employer and Employee Representatives, if
retirement benefits were the subject of good faith
bargaining and the agreement benefits Employees of
whom two percent or less are professionals, as defined
in Section 1.410(b)-9 of the Regulations. For this
purpose, the term "Employee Representative" does not
include any organization more than half of whose
members are Employees who are owners, officers, or
executives of the Employer.
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Profit-Sharing Plan #002
[X] (iii) the Plan shall exclude Employees who are nonresident
aliens [within the meaning of Section 7701(b)(1)(B)]
and who receive no earned income [within the meaning
of Section 91 l(d)(2)] from the Employer which
constitutes income from sources within the United
States [within the meaning of Section 861(a)(3)].
[ ] (iv) the Plan shall exclude from participation any
nondiscriminatory classification of Employees
determined as follows:
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4.(d) INITIAL PARTICIPANTS:
[X] (i) Employees employed on the Plan's Effective Date will be
required to satisfy both the age and Service requirements
specified above.
[ ] (ii) Employees employed on the Plan's Effective Date do not have
to satisfy the Service requirements specified above.
[ ] (iii) Employees employed on the Plan's Effective Date do not have
to satisfy the age requirements specified above.
5. RETIREMENT AGES
5.(a) NORMAL RETIREMENT AGE:
If the Employer imposes a requirement that Employees retire upon
reaching a specified age, the Normal Retirement Age selected below may
not exceed the Employer imposed mandatory retirement age.
[X] (i) Normal Retirement Age shall be 65 (not to exceed age 65).
[ ] (ii) Normal Retirement Age shall be the later of attaining age
____________ (not to exceed age 65) or the ______________ (not
to exceed the 5th) anniversary of the first day of the first
Plan Year in which the Participant commenced participation in
the Plan.
5.(b) EARLY RETIREMENT Age:
[X] (i) Not Applicable.
[ ] (ii) The Plan shall have an Early Retirement Age of ______ (not \
less than 55) and completion of _____________Years of Service.
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6. EMPLOYEE CONTRIBUTIONS
[X] 6.(a) Participants shall be permitted to make Elective Deferrals in
any amount from 1% up to 15% of their Compensation.
If (a) is applicable, Participants may amend their Salary Savings
Agreements to change the contribution percentage as provided below:
[X] (i) on the first day of each month of the Plan Year.
[ ] (ii) on the first day of the Plan Year and on the first day of
the fourth, seventh and tenth months of the Plan Year.
[ ] (iii) on the first day of the Plan Year and on the first day of
the seventh month of the Plan Year.
[ ] 6.(b) Participants shall be permitted to make after tax
Voluntary Contributions.
[ ] 6.(c) Participants shall be required to make after tax
Voluntary Contributions as follows (Thrift Savings Plan):
[ ] (i) ____% of Compensation.
[ ] (ii) a percentage determined by the Employee on his or her
enrollment form.
NOTE: Elective Deferrals may not be recharacterized as Voluntary
Contributions for purposes of the Average Deferral Percentage (ADP)
Test. The ADP Test will apply to contributions under (a) above. The
Average Contribution Percentage (ACP) Test will apply to contributions
under (b) and (c) above and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION
The Employer shall make contributions to the Plan in accordance with
the formula or formulas selected below. The Employer's contribution
shall be subject to the limitations contained in Articles III and X of
the Plan. For this purpose, a contribution for a Plan Year shall be
limited for the Limitation Year which ends with or within such Plan
Year. Also, the integrated allocation formulas below are for Plan Years
beginning in 1989 and later. The Employer's allocation for earlier
years shall be as specified in its Plan prior to amendment for the Tax
Reform Act of 1986.
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7.(a) PROFITS REQUIREMENT:
Current or Accumulated Net Profits are not required unless otherwise
indicated below:
[ ] (i) Matching Contributions.
[ ] (ii) Qualified Non-Elective Contributions.
[ ] (iii) Discretionary contributions.
NOTE: Elective Deferrals can always be contributed regardless of
profits. Complete this Section in conjunction with Section
3(f).
[X] 7.(b) SALARY SAVINGS AGREEMENT:
The Employer shall contribute and allocate to each
Participant's account an amount equal to the amount withheld
from the Compensation of such Participant pursuant to his or
her Salary Savings Agreement. If applicable, the maximum
percentage is specified in Section 6 above.
An Employee who has terminated his or her election under the
Salary Savings Agreement other than for hardship reasons may
not make another Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[X] (ii) for a period of 1 month(s) (not to exceed 12
months).
[X] 7.(c) MATCHING CONTRIBUTION [See Sections (g) and (h)]:
[X] (i) PERCENTAGE MATCH ON ELECTIVE DEFERRALS: The
Employer shall contribute and allocate to each
eligible Participant's account an amount equal
to 25 % of the amount contributed and allocated
in accordance with Section 7(b) above. The
Employer shall not match Participant Elective
Deferrals as provided above in excess of
$_______ or in excess of 1 1/4 % of the
Participant's Compensation.
[ ] (ii) PERCENTAGE MATCH ON VOLUNTARY CONTRIBUTIONS:
The Employer shall contribute and allocate to
each eligible Participant's account an amount
equal to _______ % of the amount of Voluntary
Contributions (if provided for under Section
6(b) or 6(c) above) made in accordance with
paragraphs 4.1 or 4.7 of the Plan. The Employer
shall not match Voluntary Contributions in
excess of $____ or in excess of %_____ of the
Participant's Compensation.
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[ ] (iii) DISCRETIONARY MATCH: The Employer shall
contribute and allocate to each eligible
Participant's account a percentage of the
Participant's Elective Deferral contributed and
allocated in accordance with Section 7(b)
above. The Employer shall set such percentage
prior to the end of the Plan Year. The Employer
shall not match Participant Elective
Deferrals in excess of $________ or in excess
of _________% of the Participant's
Compensation.
[ ] (iv) TIERED MATCH: The Employer shall contribute and
allocate to each Participant's account an
amount equal to ________% of the first _____%
of the Participant's Compensation, to the
extent deferred.
_____% of the next_______% of the Participant's
Compensation, to the extent deferred.
_____% of the next_______% of the Participant's
Compensation, to the extent deferred.
NOTE: Percentages specified in subsection (iv) above may not
increase as the percentage of Participant's contribution
increases.
[X] (v) QUALIFIED MATCH: Matching Contributions will be
treated as Qualified Matching Contributions to
the extent specified below:
[ ] (A) all Matching Contributions.
[ ] (B) none.
[X] (C) the amount necessary to meet the [ ]
ADP Test, [ ] the ACP Test, [X] both
the ADP and ACP Tests.
[X] (vi) ELIGIBILITY FOR MATCH: Matching Contributions,
whether or not Qualified, will only be made on
Employee Contributions:
[ ] (A) not withdrawn prior to the end of the
valuation period.
[ ] (B) not withdrawn prior to the end of the
Plan Year.
[X] (C) without regard to their withdrawal.
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(vii) MATCHING CONTRIBUTION COMPUTATION PERIOD: The
time period upon which matching contributions
will be based shall be:
[ ] (A) weekly.
[X] (B) bi-weekly.
[ ] (C) semi-monthly.
[ ] (D) monthly.
[ ] (E) quarterly.
[ ] (F) semi-annually.
[ ] (G) annually.
[X] 7.(d) QUALIFIED NON-ELECTIVE EMPLOYER CONTRIBUTION - [See Sections (g)
and (h)]: These contributions are fully vested when contributed.
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
The amount of Qualified Non-Elective Contributions taken into
account for purposes of meeting the ADP or ACP Test requirements
is:
[ ] (i) all such Qualified Non-Elective Contributions.
[ ] (ii) none.
[X] (iii) the amount necessary to meet [ ]the ADP Test, [ ] the
ACP Test, [X] both the ADP and ACP Tests.
Qualified Non-Elective Contributions will be allocated to:
[ ] (iv) all Employees eligible to participate.
[X] (v) only non-Highly Compensated Employees eligible to
participate.
[X] 7.(e) ADDITIONAL EMPLOYER CONTRIBUTION OTHER THAN QUALIFIED
NON-ELECTIVE CONTRIBUTIONS - Non-Integrated [See Sections (g) and
(h)]:
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The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation as a
percentage of the Compensation of all eligible Employees. This
part of the Employer's contribution and the allocation thereof
shall be unrelated to any Employee contributions made hereunder.
[ ] 7.(f) ADDITIONAL EMPLOYER CONTRIBUTION - Integrated Allocation Formula
[See Sections (g) and (h)
The Employer shall have the right to make an additional
discretionary contribution. The Employer's contribution for the
Plan Year plus any forfeitures shall be allocated to the accounts
of eligible Participants as follows:
(i) First, to the extent contributions and forfeitures
are sufficient, all Participants will receive an
allocation equal to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and
forfeitures will be allocated to Participants who
have Compensation in excess of the Taxabable Wage
Base (excess Compensation). Each such Participant
will receive an allocation in the ratio that his or
her excess Compensation bears to the excess
Compensation of all Participants. Participants may
only receive an allocation of 3 % of excess
Compensation.
(iii) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants in
the ratio that their Compensation plus excess
Compensation bears to the total Compensation plus
excess Compensation of all Participants. Participants
may only receive an allocation of up to 2.7 % of
their Compensation plus excess Compensation, under
this allocation method. If the Taxable Wage Base
defined at Section 30) is less than or equal to the
greater of $10,000 or 20% of the maximum, the 2.7%
need not be reduced. If the amount specified is
greater than the greater of $10,000 or 20% of the
maximum Taxable Wage Base, but not more than 80 %,
2.7 % must be reduced to 1.3%. If the amount
specified is greater than 80% but less than 100% of
the maximum Taxable Wage Base, the 2.7 % must be
reduced to 2.4 %.
NOTE: If the Plan is not Top-Heavy or if
the Top-Heavy minimum contribution
or benefit is provided under another
Plan [see Section II(c)(ii)]
covering the same Employees,
subsections (i) and (ii) above may
be disregarded and 5.7%, 4.3% or
5.4% may be substituted for 2.7 %,
1.3 % or 2.4 % where it appears in
(iii) above.
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(iv) Next, any remaining Employer contributions and
forfeitures will be allocated to all Participants
(whether or not they received an allocation under the
preceding paragraphs) in the ratio that each
Participant's Compensation bears to all Participants'
Compensation.
NOTE: Only one plan maintained by the Employer may be integrated with Social
Security.
7.(g) ALLOCATION OF EXCESS AMOUNTS (ANNUAL ADDITIONS)
In the event that the allocation formula above results in an Excess
Amount, such excess shall be distributed to the Participant to the
extent such excess does not exceed the Participant's Elective
Deferrals, non-deductible Employee Voluntary and Required Voluntary
Contributions. To the extent the Excess Amount exceeds the sum of the
aforementioned Employee contributions, such excess shall be:
[X] (i) placed in a suspense account accruing no gains or losses
for the benefit of the Participant.
[ ] (ii) reallocated as additional Employer contributions to all
other Participants to the extent that they do not have
any Excess Amount.
7.(h) MINIMUM EMPLOYER CONTRIBUTION UNDER TOP-HEAVY PLANS:
For any Plan Year during which the Plan is Top-Heavy, the sum of the
contributions and forfeitures as allocated to eligible Employees under
Sections 7(e), 7(f) and 9 of this Adoption Agreement shall not be less
than the amount required under paragraph 14.2 of the Plan. Top-Heavy
minimums will be allocated to:
[X] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are Participants.
7.(i) RETURN OF EXCESS CONTRIBUTIONS AND/OR EXCESS AGGREGATE CONTRIBUTIONS:
In the event that one or more Highly Compensated Employees is subject
to both the ADP and ACP tests and the sum of such tests exceeds the
Aggregate Limit, the limit will be satisfied by reducing the ADP and/or
the ACP of the affected Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
(This option is not applicable if Hours of Service are determined on
the basis of Elapsed Time selected under Section 3(d)(vi) above.)
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[ ] 8.(a) The Employer will not allocate Employer-related
contributions to Employees who terminate during a Plan
Year, unless required to satisfy the requirements of Code
Section 401(a)(26) and 410(b). (These requirements are
effective for 1993 Plan Year and for subsequent Plan
Years.)
[X] 8.(b) The Employer will allocate Employer matching and other
related contributions as indicated below to Employees who
terminate during the Plan Year as a result of:
MATCHING OTHER
[X] [X] (i) retirement.
[X] [X] (ii) Disability.
[X] [X] (iii) death.
[ ] [ ] (iv) other termination of employment
provided that the Participant has
completed a Year of Service as defined
for Allocation Accrual Purposes.
[X] [ ] (v) other termination of employment even
though the Participant has not
completed a Year of Service.
[ ] [ ] (vi) termination of employment (for any
reason) provided that the Participant
had completed a Year of Service for
Allocation Accrual Purposes.
9. ALLOCATION OF FORFEITURES
NOTE: Forfeitures of Excess Aggregate Contributions shall be applied
at the end of the Plan Year in which they occur to reduce
Employer Contributions. Subsections (a), (b), (c) and (d)
below apply to forfeitures of amounts other than Excess
Aggregate Contributions.
9.(a) ALLOCATION ALTERNATIVES:
If forfeitures are allocated to Participants, such allocation shall be
done in the same manner as the Employer's contribution.
[ ] (i) Not Applicable. All contributions are always fully vested.
[ ] (ii) Forfeitures shall be applied to reduce the Employer's
contribution for such Plan Year.
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[X] (iii) Forfeitures shall be allocated to Participants in the same
manner as the Employer's contribution.
(A) Amount attributable to Employer discretionary
contributions and Top-Heavy minimums will be
allocated to:
[X] all eligible Participants under the Plan.
[ ] only those Participants eligible for an
allocation of matching contributions in the
current year.
(B) Amounts attributable to Employer Matching
contributions will be allocated to:
[ ] all eligible Participants.
[X] only those Participants eligible for
allocations of matching contributions in the
current year.
9.(b) REALLOCATION DATE FOR PLANS using daily valuations shall be the end of
the next Plan Year immediately following receipt of a cash out
distribution.
9.(c) DATE FOR REALLOCATION (for Plans using other than daily valuations):
[ ] (i) Forfeitures shall be reallocated at the end of the Plan
Year during which the former Participant incurs his or her
fifth consecutive one year Break In Service.
[ ] (ii) Forfeitures will be reallocated as of the next Valuation
Date.
[ ] (iii) Forfeitures shall be reallocated at the end of the Plan Year
during which the former Employee incurs a one-year Break In
Service.
[ ] (iv) Forfeitures will be reallocated as of the Plan Year end.
9.(d) RESTORATION OF FORFEITURES:
If amounts are forfeited prior to five consecutive one-year Breaks in
Service, the Funds for restoration of account balances will be obtained
from the following resources in the order indicated (fill in the
appropriate number):
[1] (i) current year's forfeitures.
[2] (ii) additional Employer contributions.
[ ] (iii) income or gain to the Plan.
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10. CASH OPTION
[X] 10.(a) The Employer may permit a Participant to elect to defer to the
Plan an amount not to exceed 100 % of any Employer paid cash
bonus made for such Participant for any year. A Participant
must file an election to defer such contribution at least
fifteen (15) days prior to the end of the Plan Year. If the
Employee fails to make such an election, the entire Employer
paid cash bonus to which the Participant would be entitled
shall be paid as cash and not to the Plan. Amounts deferred
under this section shall be treated for all purposes as
Elective Deferrals. Notwithstanding the above, the election to
defer must be made before the bonus is made available to the
Participant.
[ ] 10.(b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS
THIS SECTION IS NOT APPLICABLE IF THIS IS THE ONLY PLAN THE EMPLOYER MAINTAINS
OR EVER MAINTAINED. PLANS INCLUDE WELFARE BENEFIT FUNDS AS DESCRIBED IN CODE
SECTION 419(E) OR AN INDIVIDUAL MEDICAL ACCOUNT AS DEFINED UNDER CODE SECTION
415(L)(2) UNDER WHICH AMOUNTS ARE TREATED AS ANNUAL ADDITIONS.
[ ] 11.(a) If the Participant is covered under another qualified Defined
Contribution Plan maintained by the Employer, other than a
Master or Prototype Plan:
[ ] (i) the provisions of Article X of the Plan will
apply, as if the other plan were a Master or
Prototype Plan.
[ ] (ii) Attach provisions stating the method under
which the plans will limit total Annual
Additions to the Maximum Permissible Amount,
and will properly reduce any Excess Amounts,
in a manner that precludes Employer
discretion.
[ ] 11.(b) If a Participant is or ever has been a participant in a
Defined Benefit Plan maintained by the Employer:
Attach provisions which will satisfy the 1.0 limitation of
Code Section 415(e). Such language must preclude Employer
discretion. The Employer must also specify the interest and
mortality assumptions used in determining Present Value in the
Defined Benefit Plan.
[ ] 11.(c) The minimum contribution or benefit required under Code
Section 416 relating to Top-Heavy Plans shall be satisfied by
either:
[ ] (i) this Plan.
[ ] (iii)
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(Name of other qualified plan of the Employer).
[ ] (iii) Attach provisions stating the method under
which the minimum contribution and benefit
provisions of Code Section 416 will be
satisfied. If a Defined Benefit Plan is or
was maintained, an attachment must be
provided showing interest and mortality
assumptions used in the Top-Heavy Ratio.
12. VESTING
12(a) COMPUTATION PERIOD: (This option is not applicable if Hours of Service
are determined on the basis of Elapsed Time selected under Section
3(d)(vi) above.)
The computation period for purposes of determining Years of
Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account
balance derived from Employer contributions:
[ ] (i) shall not be applicable since Participants
are always fully vested.
[X] (ii) shall commence on the first day of the Plan
Year during which an Employee first performs
an Hour of Service for the Employer and each
such subsequent 12-consecutive month period
shall commence on the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service [or if lesser, the number of
hours specified at 3(k)(iii) of this Adoption Agreement] at any time
during the 12-consecutive-month computation period. Consequently, a
Year of Service may be earned prior to the end of the
12-consecutive-month computation period and the Participant need not be
employed at the end of the 12-consecutive-month computation period to
receive credit for a Year of Service.
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Prototype Cash or Deferred
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12.(b) VESTING SCHEDULES:
Contributions under Sections 6(a),(b),(c), 7(c)(v) and (d) are always
fully vested.
NOTE: The vesting schedules below only apply to a Participant who has at
least one Hour of Service during or after the 1989 Plan Year. If
applicable, Participants who separated from Service prior to the 1989
Plan Year will remain under the vesting schedule as in effect in the
Plan prior to amendment for the Tax Reform Act of 1986.
[ ] (i) Full and immediate vesting.
Years of Service
----------------
1 2 3 4 5 6 7
- - - - - - -
[ ] (ii) __% 100%
[ ] (iii) __% __% 100%
[X] (iv) 0 % 20% 40% 60% 80% 100%
[ ] (v) __% __% 20% 40% 60% 80% 100%
[ ] (vi) 10% 20% 30% 40% 60% 80% 100%
[ ] (vii) __% __% __% __% 100%
[ ] (viii) __% __% __% __% __% __% 100%
NOTE: The percentages selected for schedule (viii) may not be less
for any year than the percentages shown at schedule (v).
[X] (A) All contributions other than those which are
fully vested when contributed will vest
under schedule IV above.
[ ] (B) All Matching Contributions will vest under
schedule_________above. All other Employer
contributions other than those which are
fully vested when contributed will vest
under schedule _________above.
12.(c) SERVICE DISREGARDED FOR VESTING:
[ ] (i) Not Applicable. All Service shall be
considered.
[X] (ii) Service prior to the Effective Date of this
Plan or a predecessor plan shall be
disregarded when computing a Participant's
vested and nonforfeitable interest.
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[ ] (iii) Service prior to a Participant having
attained age 18 shall be disregarded when
computing a Participant's vested and
nonforfeitable interest.
12.(d) TOP-HEAVY VESTING:
Each Participant shall acquire a vested and nonforfeitable percentage
in his or her account balance attributable to Employer contributions
and the earnings thereon under the procedures selected above except
with respect to any Plan Year during which the Plan is Top-Heavy, in
which case the [X] Two-twenty vesting schedule [Section 12(b)(iv)] [ I
Three-Year Cliff vesting schedule [Section 12(b)(iii)] shall
automatically apply unless the Employer has already elected a faster
vesting schedule. If the Plan is switched to Section 12(b)(iii) or
12(b)(iv) because of its Top-Heavy status, that vesting schedule will
remain in effect, even if the Plan later becomes non-Top-Heavy, until
the Employer executes an amendment of this Adoption Agreement
indicating otherwise.
13. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for Eligibility and
Vesting, Hours of Service shall include Service with the following
predecessor organization(s):
Capital Oil and Gas, Inc.
-------------------------
Trinity Oil and Gas, Inc.
-------------------------
14. ROLLOVER/TRANSFER CONTRIBUTIONS
14.(a) Rollover Contributions, as described at paragraph 4.3 of the Plan, [X]
shall [ ] shall not be permitted. If permitted, Employees [X] may [ ]
may not make Rollover Contributions prior to meeting the eligibility
requirements for participation in the Plan.
14.(b) Transfer Contributions, as described at paragraph 4.4 of the Plan [ ]
shall [X] shall not be permitted. If permitted, Employees [ ]may [ ]
may not make Transfer Contributions prior to meeting the eligibility
requirements for participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such contributions
-if its Plan meets the safe-harbor rules of paragraph 8.7 of the Plan.
15. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Plan [X]
[ ]are not permitted.
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16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.4 of the Plan, [X]
are [ ]are not permitted. If permitted, repayments of principal and
interest shall be repaid to the Participant's segregated account.
17. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.5 of the Plan [ ] shall [X] shall not be applicable.
18. EMPLOYEE INVESTMENT DIRECTION
The Employee investment direction provisions, as set forth in paragraph
13.6 of the Plan [X] shall [ ]shall not be applicable.
NOTE: To the extent that Employee investment direction was previously
allowed, the Trustee shall have the right to either make the assets
part of the general Trust, or leave them as separately invested subject
to the provisions of paragraph 13.6 of the Plan.
19. EARLY PAYMENT OPTION
19.(a) A Participant who separates from Service prior to retirement, death or
Disability [X] may [ ]may not make application to the Employer
requesting an early payment of his or her vested account balance.
Amounts under $3,500 [X] will [ ] will not be cashed out immediately.
19.(b) A Participant who has not separated from Service [ ] may [X] may not
obtain a distribution of his or her vested Employer contributions.
Distribution can only be made if the Participant has completed five
Years of Service.
19.(c) A Participant who has attained age 59-1/2 and has not separated from
Service [ ] may [X] may not obtain a distribution of his or her vested
Employer contributions.
19.(d) A Participant who has attained the Plan's Normal Retirement Age and who
has not separated from Service [X] may [ ]may not receive a
distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her account
balance in the past, this right may not be taken away. Notwithstanding
the above to the contrary, required minimum distributions will be paid.
For timing of distributions, see Section 20(a) below.
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Prototype Cash or Deferred
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20. DISTRIBUTION OPTIONS
20.(a) TIMING OF DISTRIBUTIONS:
In cases of termination for other than death, Disability or retirement,
benefits shall be paid:
[ ] (i) as soon as administratively feasible
following the close of the valuation period
during which a distribution is requested or
is otherwise payable.
[ ] (ii) as soon as administratively feasible
following the close of the Plan Year during
which a distribution is requested or is
otherwise payable.
[X] (iii) as soon as administratively feasible
following the date on which a distribution
is requested or is otherwise payable.
[ ] (iv) as soon as administratively feasible after
the close of the Plan Year during which the
Participant incurs a one-year Break in
Service.
[ ] (v) only after the Participant has achieved the
Plan's Normal Retirement Age, or Early
Retirement Age, if applicable.
In cases of death, Disability or retirement, benefits shall be
paid:
[ ] (vi) as soon as administratively feasible
following the close of the valuation period
during which a distribution is requested or
is otherwise payable.
[ ] (vii) as soon as administratively feasible
following the close of the Plan Year during
which a distribution is requested or is
otherwise payable.
[X] (viii) as soon as administratively feasible
following the date on distribution is
requested or is otherwise payable.
20.(b) OPTIONAL FORMS OF PAYMENT:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided.
(Indicate all forms that apply):____________________
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Prototype Cash or Deferred
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20.(c) RECALCULATION OF LIFE EXPECTANCY:
In determining required distributions under the Plan, a Participant
and/or Spouse (Surviving Spouse) [X] shall [ ] shall not have the right
to have their life expectancy recalculated annually.
If "shall",
[ ] only the Participant shall be recalculated.
[ ] both the Participant and Spouse shall be recalculated.
[X] who is recalculated shall be determined by the Participant.
21. SPONSOR CONTACT
Employers should direct questions concerning the language contained in
and the qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714) 671-7000
In the event that the Sponsor amends, discontinues or abandons this
Prototype Plan, notification will be provided to the Employer at the
address provided on the first page of this Adoption Agreement.
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Prototype Cash or Deferred
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22. SIGNATURES:
DUE TO THE SIGNIFICANT TAX RAMIFICATIONS, THE SPONSOR RECOMMENDS THAT
BEFORE THE EMPLOYER EXECUTE THIS ADOPTION AGREEMENT, THE EMPLOYER
CONTACT ITS ATTORNEY OR TAX ADVISOR.
(a) EMPLOYER DELEGATE OR COMMITTEE APPOINTMENT:
The Employer has appointed the following individual(s) to act on behalf
of the Employer regarding all communications and requests between the
Employer and the Recordkeeper, pursuant to the terms and conditions of
the Plan. Unless otherwise directed by the Employer in written
directions to the Recordkeeper, the Recordkeeper may act upon the
instructions of any one of the persons listed below.
NAME(S) (please type or print) SIGNATURE(S)
1. Garry Regan 1. /s/ Garry Regan
--------------------------- ---------------------------
---------------------------
ADDRESS
2. 2.
--------------------------- ---------------------------
---------------------------
ADDRESS
3. 3.
--------------------------- ---------------------------
---------------------------
ADDRESS
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Prototype Cash or Deferred
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(b) EMPLOYER:
Name and address of Employer if different than specified in Section I
above.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 29 day of
April, 2000
SIGNED FOR THE EMPLOYER BY: Garry Regan
--------------
TITLE: President
--------------
SIGNATURE: /s/Garry Regan
--------------
THE EMPLOYER UNDERSTANDS THAT ITS FAILURE TO PROPERLY COMPLETE THE
ADOPTION AGREEMENT MAY RESULT IN DISQUALIFICATION OF ITS PLAN.
Employer's Reliance: The adopting Employer may not rely on an opinion
letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Code Section 401. In order to
obtain reliance with respect to Plan qualification, the Employer must
apply to the appropriate Key District Office for a determination
letter.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #03.
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Prototype Cash or Deferred
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(b) EMPLOYER:
Name and address of Employer if different than specified in Section I
above.
NORTH COAST OPERATING, INC.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 29 day of
April, 2000.
SIGNED FOR THE EMPLOYER BY: Garry Regan
----------------------------
TITLE: President
------------------------------
SIGNATURE: /s/ Garry Regan
------------------------------
THE EMPLOYER UNDERSTANDS THAT ITS FAILURE TO PROPERLY COMPLETE THE
ADOPTION AGREEMENT MAY RESULT IN DISQUALIFICATION OF ITS PLAN.
Employer's Reliance: The adopting Employer may not rely on an opinion
letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Code Section 401. In order to
obtain reliance with respect to Plan qualification the E I District
Office for a determination letter.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #03.
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(b) EMPLOYER:
Name and address of Employer if different than specified in Section I
above.
NCE SECURITIES, INC.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 29 day of
April, 2000.
SIGNED FOR THE EMPLOYER BY: Garry Regan
-------------------------------
TITLE: President
-------------------------------
SIGNATURE: /s/ Garry Regan
--------------------------------
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: The adopting Employer may not rely on an opinion
letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Code Section 401. In order to
obtain reliance with respect to Plan qualification, the Employer must
apply to the appropriate Key District Office for a determination
letter.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #03.
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(b) EMPLOYER:
Name and address of Employer if different than specified in Section I
above.
PEAKE ENERGY, INC.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 29 day of
April, 2000.
SIGNED FOR THE EMPLOYER BY: Garry Regan
---------------------------
TITLE: President
---------------------------
SIGNATURE: /s/ Garry Regan
---------------------------
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: The adopting Employer may not rely on an opinion
letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Code Section 401. In order to
obtain reliance with respect to Plan qualification, the Employer must
apply to the appropriate Key District Office for a determination
letter.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #03.
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(c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to serve as
Trustee, and such Trustee, hereby confirms acceptance of the
appointment and duties pursuant to the accompanying Plan and Adoption
Agreement.
SIGNED FOR THE TRUSTEE BY: Herman Martinez
----------------------------
TITLE: ASST. V.P.
----------------------------
SIGNATURE: /s/ Herman Martinez 5/16/00
----------------------------
NOTE: In accordance with paragraph 13.7 of Basic Plan Document #03 an additional
trustee may be appointee to govern Plan assets held outside the Fund. If so, the
additional trustee shall be appointed in a separate trust agreement.
29