EXHIBIT 10.30H
PIONEER NATURAL RESOURCES USA, INC.
401(k) AND MATCHING PLAN
(Amended and Restated Effective as of January 1, 2002)
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PIONEER NATURAL RESOURCES USA, INC.
401(k) AND MATCHING PLAN
(Amended and Restated Effective as of January 1, 2002)
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TABLE OF CONTENTS
Page
PREAMBLE ............................................................. 1
ARTICLE I. DEFINITIONS AND CONSTRUCTION................................. 1
Section 1.1 Definitions .................................. 1
Section 1.2 Construction .................................. 9
ARTICLE II. ELIGIBILITY AND PARTICIPATION................................ 9
Section 2.1 Eligibility .................................. 9
Section 2.2 Participation.................................. 9
ARTICLE III. CONTRIBUTIONS, LIMITATIONS AND FORFEITURES................... 10
Section 3.1 Pre-Tax and Pre-Tax Bonus Contributions........ 10
Section 3.2 Matching Contributions......................... 11
Section 3.3 Catch-Up Contributions......................... 11
Section 3.4 After-Tax Contributions........................ 12
Section 3.5 Payment of Contributions....................... 12
Section 3.6 Return of Employer Contributions............... 12
Section 3.7 Nondiscrimination Testing...................... 13
Section 3.8 Application of Forfeitures..................... 17
Section 3.9 Rollover Contributions......................... 17
ARTICLE IV. TRUST FUND................................................... 18
Section 4.1 Trust and Trustee.............................. 18
Section 4.2 Trust Investment Options....................... 18
Section 4.3 Valuation and Adjustment of Accounts........... 19
ARTICLE V. VESTING...................................................... 19
Section 5.1 Fully Vested Accounts.......................... 19
Section 5.2 Vesting of Employer Account.................... 19
Section 5.3 Special Vesting Provisions..................... 20
ARTICLE VI. VALUATIONS, DISTRIBUTIONS.................................... 21
Section 6.1 Time of Distribution........................... 21
Section 6.2 Distribution of Retirement and Disability
Benefits....................................... 22
(i)
Section 6.3 Distribution of Death Benefit.................. 24
Section 6.4 Distribution of Separation from
Employment Benefit............................. 25
Section 6.5 Forfeitures .................................. 26
Section 6.6 In-Service Withdrawals......................... 28
Section 6.7 Distributions to Minors and Persons Under
Legal Disability............................... 29
Section 6.8 Benefits Payable to Missing Participant or
Beneficiary.................................... 29
Section 6.9 Plan Loans .................................. 30
Section 6.10 Qualified Domestic Relations Orders............ 30
Section 6.11 Transfer of Eligible Rollover Distribution..... 31
ARTICLE VII. PLAN ADMINISTRATION.......................................... 32
Section 7.1 401(k) and Matching Plan Committee............. 32
Section 7.2 Powers, Duties and Liabilities of
the Committee.................................. 33
Section 7.3 Rules, Records and Reports..................... 33
Section 7.4 Administration Expenses and Taxes.............. 33
ARTICLE VIII. AMENDMENT AND TERMINATION.................................... 34
Section 8.1 Amendment .................................. 34
Section 8.2 Termination .................................. 34
Section 8.3 Benefit Plan Design Committee.................. 34
ARTICLE IX. TOP-HEAVY PROVISIONS......................................... 35
Section 9.1 Top-Heavy Definitions.......................... 35
Section 9.2 Minimum Contribution Requirement............... 36
Section 9.3 Minimum Vesting Schedule....................... 36
ARTICLE X. MISCELLANEOUS GENERAL PROVISIONS............................. 37
Section 10.1 Spendthrift Provision.......................... 37
Section 10.2 Claims Procedure............................... 37
Section 10.3 Maximum Contribution Limitation................ 37
Section 10.4 Employment Noncontractual...................... 38
Section 10.5 Limitations on Responsibility.................. 38
Section 10.6 Merger or Consolidation........................ 38
Section 10.7 Applicable Law................................. 39
Section 10.8 USERRA Compliance.............................. 39
(ii)
PIONEER NATURAL RESOURCES USA, INC.
401(k) AND MATCHING PLAN
(Amended and Restated Effective as of January 1, 2002)
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THIS 401(k) AND MATCHING PLAN, a profit sharing plan, made and executed
by PIONEER NATURAL RESOURCES USA, INC., a Delaware corporation (the "Company"),
W I T N E S S E T H T H A T :
WHEREAS, the Company has heretofore maintained for the benefit of its
employees a qualified profit sharing plan known as the Pioneer Natural Resources
USA, Inc. 401(k) Plan and a qualified money purchase pension plan known as the
Pioneer Natural Resources USA, Inc. Matching Plan; and
WHEREAS, effective as of 12:01 a.m. on January 1, 2002, the Company
merged the Pioneer Natural Resources USA, Inc. Matching Plan with and into the
Pioneer Natural Resources, Inc. 401(k) Plan; and
WHEREAS, the Company now desires to restate the Pioneer Natural
Resources USA, Inc. 401(k) Plan to accommodate such merger, change the plan
name, update the plan for tax compliance, incorporate prior amendments and make
certain other changes;
NOW, THEREFORE, in consideration of the premises and pursuant to the
authority reserved thereunder, the Pioneer Natural Resources USA, Inc. 401(k)
Plan is hereby amended by restatement in its entirety, effective as of January
1, 2002, as the Pioneer Natural Resources USA, Inc. 401(k) and Matching Plan to
read as follows:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions. Unless the context clearly indicates
otherwise, when used in this Plan:
(a) "Account" means a Participant's After-Tax Account, Employer
Employer Account, Matching Plan Account, Mesa After-Tax Account, Mesa
Premium Account, Mesa Profit-Sharing Account, Pre-Tax Account, Prior
Plan Employer Account, Prior Plan Pre-Tax Account and/or Rollover
Account, as the context requires. The Committee may establish and
maintain separate subaccounts within a Participant's Accounts if it
deems such to be necessary for the proper administration of the Plan.
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(b) "Affiliated Company" means any corporation or organization,
other than an Employer, which is a member of a controlled group of
corporations (within the meaning of Section 414(b) of the Code) or of
an affiliated service group (within the meaning of Section 414(m) of
the Code) with respect to which an Employer is also a member, and any
other incorporated or unincorporated trade or business which along with
an Employer is under common control (within the meaning of the
regulations from time to time promulgated by the Secretary of the
Treasury pursuant to Section 414(c) of the Code); provided, however,
that for the purposes of Section 10.3 of the Plan, Section 414(b) and
(c) of the Code shall be applied as modified by Section 415(h) of the
Code.
(c) "After-Tax Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to After-Tax Contributions made
to this Plan.
(d) "After-Tax Contribution" means a contribution made by a
Participant to this Plan pursuant to Section 3.4.
(e) "Basic Compensation" means the sum of (i) the base salary
or wages and any overtime payable by an Employer to an Employee for
personal services rendered to the Employer but excluding any amount
payable pursuant to an Employer's salary continuation program, (ii) any
contributions made by an Employer on behalf of the Employee to a
qualified cash or deferred arrangement (within the meaning of Section
401(k) of the Code) maintained by such Employer, including any Catch-Up
Contributions and Total Pre-Tax Contributions made by an Employer to
this Plan on behalf of such Employee, (iii) any compensation reduction
amounts elected by such Employee for the purchase of benefits pursuant
to a cafeteria plan (within the meaning of Section 125(d) of the Code)
maintained by an Employer, and (iv) any elective amounts that are not
includible in the gross income of an Employee by reason of Section
132(f)(4) of the Code; provided, however, that the Basic Compensation
of an Employee taken into account under the Plan for any Plan Year
shall not exceed $200,000 (as adjusted to take into account any
cost-of-living increases authorized pursuant to Section 401(a)(17)(B)
of the Code).
(f) "Catch-Up Contribution" means a pre-tax contribution made
by an Employer on behalf of a Participant pursuant to Section 3.3.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Committee" means the 401(k) and Matching Plan Committee
appointed by the Board of Directors of the Company to administer the
Plan.
(i) "Company" means Pioneer Natural Resources USA, Inc., a
Delaware corporation, and any successor thereto.
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(j) "Compensation" means the sum of (i) wages within the
meaning of Section 3401(a) of the Code and all other payments of
remuneration to an Employee by an Employer (in the course of the
Employer's trade or business) for which the Employer is required to
furnish the Employee a written statement under Sections 6041(d),
6051(a)(3) and 6052 of the Code, but determined without regard to any
rules that limit the remuneration included in wages based on the nature
or location of the employment or the services performed (such as the
exception for agricultural labor in Section 3401(a)(2) of the Code),
(ii) any contributions made by an Employer on behalf of the Employee to
a qualified cash or deferred arrangement (within the meaning of Section
401(k) of the Code) maintained by such Employer, including any Catch-Up
Contributions and Total Pre-Tax Contributions made by an Employer to
this Plan on behalf of such Employee, (iii) any compensation reduction
amounts elected by such Employee for the purchase of benefits pursuant
to a cafeteria plan (within the meaning of Section 125(d) of the Code)
maintained by an Employer, and (iv) any elective amounts that are not
includible in the gross income of an Employee by reason of Section
132(f)(4) of the Code; provided, however, that except for purposes of
determining whether an Employee is a Highly Compensated Employee or a
Key Employee (within the meaning of Section 9.1(c)), the Compensation
of an Employee taken into account under the Plan for any Plan Year
shall not exceed $200,000 (as adjusted to take into account any
cost-of-living increases authorized pursuant to Section 401(a)(17)(B)
of the Code).
(k) "Covered Employee" means any Employee other than an
individual who is (i) a member of a collective bargaining unit with
which an Employer negotiates and with respect to whom no coverage under
this Plan has been provided by collective bargaining agreement, (ii) a
nonresident alien with respect to the United States who receives no
earned income from an Employer which constitutes income from sources
within the United States, (iii) a temporary or seasonal Employee as
determined in accordance with the Employer's normal personnel policies,
(iv) not treated by an Employer at the time of the performance of
services as an employee for federal tax purposes, regardless of any
subsequent reclassification by an Employer, any governmental agency or
account, or (v) treated as a leased employee by an Employer.
(l) "Employee" means any individual employed by an Employer.
(m) "Employer" shall include the Company and a ny other
incorporated or unincorporated trade or business which may subsequently
adopt this Plan with the consent of the Board of Directors of the
Company.
(n) "Employer Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to (i) any amounts credited to
his or her Employer Account under the Superseded Plan as in effect on
December 31, 2001, and (ii) any Matching Contributions made to the Plan
for the Participant on or after January 1, 2002.
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(o) "Employment Date" means the date an Employee first performs
an Hour of Service.
(p) "Highly Compensated Employee" means for a Plan Year:
(1) any Employee who during such Plan Year or during
the preceding Plan Year was at any time a 5-percent owner (as
defined in Section 416(i)(1) of the Code) of an Employer or
Affiliated Company; or
(2) any Employee who during the preceding Plan Year
received Compensation greater than $80,000 (as adjusted to
take into account any cost-of-living increases authorized
pursuant to Section 414(q)(1) of the Code) and who is in the
group consisting of the top 20% (when ranked on the basis of
Compensation received during such preceding year) of all
Employees, except those excluded pursuant to Section 414(q)(5)
of the Code.
Solely for purposes of this definition, (i) an employee of an
Affiliated Company shall be deemed to be an Employee, (ii) compensation
received from an Affiliated Company shall be deemed to be Compensation,
and (iii) a nonresident alien who receives no earned income from an
Employer or Affiliated Company which constitutes income from sources
within the United States shall not be considered an Employee.
(q) "Hour of Service" means an hour for which an Employee is
directly or indirectly compensated or entitled to compensation
(including back pay, regardless of mitigation of damages) by an
Employer for the performance of duties for an Employer or for reasons
(such as vacation, sickness or disability) other than the performance
of duties for an Employer. An Employee will be credited with eight
Hours of Service per day for any customary work period during which
such Employee is on leave of absence authorized by his or her Employer.
Leaves of absence shall be granted by an Employer to its Employees on a
uniform, nondiscriminatory basis. In no event shall more than 501 Hours
of Service be credited on account of any single continuous period
during which the individual performs no duties. An Employee's Hours of
Service shall be credited to the appropriate Plan Years or eligibility
computation period determined in accordance with the provisions of
Section 2530.200b-2(b) and (c) of the Department of Labor Regulations,
which are incorporated herein by this reference. In determining Hours
of Service for the purposes of this Plan, periods of employment by an
Affiliated Company and services performed as a leased employee (within
the meaning of Section 414(n) of the Code) of an Employer or Affiliated
Company shall be deemed to be periods of employment by an Employer.
(r) "Investment Fund" means any fund authorized for the
investment of Trust assets pursuant to Section 4.2.
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(s) "Matching Contribution" means a contribution made by an
Employer to the Plan for a Participant pursuant to Section 3.2.
(t) "Matching Plan Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to matching contributions made
for such Participant pursuant to the provisions of the Matching Plan as
in effect on December 31, 2001.
(u) "Matching Plan" means the Pioneer Natural Resources USA,
Inc. Matching Plan, as in effect from time to time prior to January 1,
2002.
(v) "Mesa After-Tax Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to his or her accrued benefit
derived from after-tax contributions to the Mesa Profit-Sharing Plan as
in effect on September 30, 1997.
(w) "Mesa Premium Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to Employer contributions made
for such Participant pursuant to the provisions of the Mesa Premium
Plan as in effect on September 30, 1997.
(x) "Mesa Premium Plan" means the Mesa Employees Premium Plan
and Trust Agreement as in effect from time to time prior to October 1,
1997.
(y) "Mesa Profit-Sharing Account" means the account established
and maintained under this Plan by the Committee to record a
Participant's interest under this Plan attributable to his or her
accrued benefit derived from employer contributions to the Mesa Profit-
Sharing Plan as in effect on September 30, 1997.
(z) "Mesa Profit-Sharing Plan" means the Mesa Profit-Sharing
Plan and Trust Agreement as in effect from time to time prior to
October 1, 1997.
(aa) "Non-Highly Compensated Employee" means for a Plan Year
any Employee who is not a Highly Compensated Employee for such Plan
Year.
(bb) The "Normal Retirement Date" of a Participant means the
day such Participant attains the age of 65 years.
(cc) "One Year Break in Service" means a 12-consecutive-month
Period of Severance during which an Employee fails to complete a single
Hour of Service.
(dd) "Participant" means any individual who was a participant
in either the Superseded Plan or the Matching Plan or who has elected
to participate in this Plan pursuant to Section 2.2, and whose Vested
Interest under this Plan has not been fully distributed.
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(ee) "Period of Service" means, for purposes of determining a
Participant's Vested Interest in his or her Employer Account, the sum,
rounded downward to the nearest whole year, of each period of time
commencing with an Employee's Employment Date or Reemployment Date and
ending on the first date thereafter a Period of Severance begins
(except as provided in subsection (ff) of this Section in the case of
an Employee's maternity or paternity leave of absence). Included in
such sum to be credited to an Employee shall be each period of time
during which the Employee is on an authorized leave of absence for
reasons of vacation, sickness, layoff or another occasion designated
and applied by an Employer or Affiliated Company on a nondiscriminatory
basis, but in no event exceeding one year in length. A Period of
Service also includes any Period of Severance of less than 12
consecutive months. If an Employee who has no vested right to any
amount credited to his or her Employer Account or Matching Plan Account
incurs a One Year Break in Service, such Employee shall forfeit his or
her prior Period of Service unless he or she completes an additional
one-year Period of Service before the number of his or her consecutive
One Year Breaks in Service equals five. Solely for the purpose of
determining the Period of Service completed by a Covered Employee who
was in the employ of Colorado Interstate Gas Company on May 1, 2001,
periods of employment by Colorado Interstate Gas Company or a
subsidiary thereof prior to May 1, 2001, shall be considered to be
periods of employment by an Employer.
Any provision of this Plan to the contrary notwithstanding, if
a Participant participated in the Superseded Plan prior to October 1,
1997, the Period of Service completed by such Participant prior to
January 1, 1998, shall be (i) such Participant's years of Vesting
Service determined under the Retirement Savings Plan for Employees of
Parker & Parsley as of June 27, 1996, (ii) plus one year for the Plan
Year ending December 31, 1996, if during such Plan Year such
Participant completed a Year of Service under the Retirement Savings
Plan for Employees of Parker & Parsley as in effect at the end of such
year, (iii) plus one year for the Plan Year ending December 31, 1997,
if such Participant either (A) completed a year of Vesting Service as
of September 30, 1997, under the Superseded Plan as in effect on such
date or (B) completed a one-year Period of Service under the foregoing
provisions of this definition during the entire such Plan Year. For
purposes of clause (ii) of the preceding sentence, a Participant shall
be credited with a number of Hours of Service applying the monthly
equivalency method set forth in Labor Reg. ss. 2530.200b-3(e)(1)(iv) to
any fractional part of a year credited to such Participant as of June
28, 1996.
(ff) "Period of Severance" means a period of time commencing
with the date an Employee ceases to be employed by an Employer or
Affiliated Company for reasons of Retirement, Permanent Disability,
death, being discharged, or voluntarily ceasing employment, or with the
first anniversary of the date of his or her absence for any other
reason, and ending with the date such Employee resumes employment with
an Employer or Affiliated Company; provided, however, that solely for
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purposes of determining whether an Employee incurs a One Year Break
in Service, the Period of Severance of an Employee who is absent from
work due to the pregnancy of the Employee, the birth of a child of the
Employee, the placement of a child with the Employee in connection with
the adoption of such child by such Employee, or caring for such child
for a period beginning immediately following such birth or placement
shall not commence until the second anniversary of the first date of
such absence and the period between the first and second anniversaries
of the first date of such absence shall be considered neither a Period
of Service nor a Period of Severance.
(gg) "Permanent Disability" means the total and permanent
incapacity of a Participant to perform the usual duties of his or her
employment with an Employer or Affiliated Company as determined by the
Committee. Such incapacity shall be deemed to exist when certified by a
physician acceptable to the Committee.
(hh) "Pioneer Stock" means the common stock of Pioneer Natural
Resources Company, a Delaware corporation, and any successor thereto.
(ii) "Plan" means this Pioneer Natural Resources USA, Inc.
401(k) and Matching Plan (Amended and Restated Effective as of January
1, 2002), as in effect from time to time.
(jj) "Plan Year" means the calendar year.
(kk) "Pre-Tax Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to (i) Pre-Tax Contributions and
Pre-Tax Bonus Contributions made by an Employer on behalf of such
Participant and (ii) any amounts credited to his or her Employee
Pre-Tax Contribution Account under the Superseded Plan as in effect on
September 30, 1997.
(ll) "Pre-Tax Bonus Contribution" means a contribution made by
an Employer to this Plan on behalf of a Participant pursuant to Section
3.1(b).
(mm) "Pre-Tax Contribution" means a contribution made by an
Employer to this Plan on behalf of a Participant pursuant to Section
3.1(a).
(nn) "Prior Plan Employer Account" means the account
established and maintained under this Plan by the Committee to record a
Participant's interest under this Plan attributable to any amounts
credited to his or her BOUSA Employer Matching Contribution Account
under the Retirement Savings Plan for Employees of Parker & Parsley as
in effect on June 27, 1996.
(oo) "Prior Plan Pre-Tax Account" means the account established
and maintained under this Plan by the Committee to record a
Participant's interest under this Plan attributable to any amounts
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credited to his or her Plan A Salary Deferral Contribution Account or
his or her BOUSA Plan Salary Deferral Contribution Account under the
Retirement Savings Plan for Employees of Parker & Parsley as in effect
on June 27, 1996.
(pp) "Qualified Joint and Survivor Annuity" means an annuity
which is payable for the life of the Participant with a survivor
annuity payable for the life of his or her spouse equal to 50% of the
amount of the annuity payable during the life of the Participant;
provided, however, that in the case of a Participant who is not
married, a Qualified Joint and Survivor Annuity means an annuity which
is payable for the life of the Participant. "Alternate Qualified Joint
and Survivor Annuity" means an annuity which is payable for the life of
the Participant with a survivor annuity payable for the life of his or
her spouse equal to 75% or 100% of the amount of the annuity payable
during the life of the Participant.
(qq) "Qualified Preretirement Survivor Annuity" means an
annuity which is payable for the life of the Participant's surviving
spouse.
(rr) "Reemployment Date" means the date an Employee first
performs an Hour of Service following a Period of Severance.
(ss) "Retirement" means the termination of a Participant's
employment with an Employer or Affiliated Company on or after his or
her Normal Retirement Date for any reason other than death or transfer
to the employment of another Employer or Affiliated Company.
(tt) "Rollover Account" means the account established and
maintained under this Plan by the Committee to record a Participant's
interest under this Plan attributable to (i) Rollover Property
contributed by such Participant to this Plan pursuant to Section 3.9,
(ii) any amounts credited to his or her Rollover Contribution Account
under the Superseded Plan as in effect on September 30, 1997, and (iii)
any amounts credited to his or her Rollover Account under the Mesa
Profit-Sharing Plan as in effect on September 30, 1997.
(uu) "Rollover Property" means property the value of which
would be excluded from the gross income of the transferor under Section
402(c), 403(a)(4) or 408(d)(3) of the Code if transferred to the Plan.
(vv) "Superseded Plan" means the Pioneer Natural Resources USA,
Inc. 401(k) Plan, as in effect from time to time prior to January 1,
2002. Prior to August 7, 1997, the Superseded Plan was known as the
Retirement Savings Plan for Employees of Parker & Parsley.
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(ww) "Total Pre-Tax Contributions" means the sum of the
Pre-Tax Contributions and Pre-Tax Bonus Contributions made on behalf of
a Participant.
(xx) "Trust" means the trust fund established pursuant to
Section 4.1.
(yy) "Trustee" means the individual or corporate trustee or
trustees from time to time appointed and acting as trustee or trustees
of the Trust established pursuant to the Plan.
(zz) "Valuation Date" means each business day.
(aaa) The "Vested Interest" of a Participant means the then
vested portion of the amount credited to the Accounts of such
Participant at the particular point in time in question.
Section 1.2 Construction. The titles to the Articles and the headings
of the Sections in this Plan are placed herein for convenience of reference only
and in case of any conflict the text of this instrument, rather than such titles
or headings, shall control. Whenever a noun or pronoun is used in this Plan in
plural form and there be only one person or entity within the scope of the word
so used, or in singular form and there be more than one person or entity within
the scope of the word so used, such noun or pronoun shall have a plural or
singular meaning as appropriate under the circumstance.
ARTICLE II.
ELIGIBILITY AND PARTICIPATION
Section 2.1 Eligibility. Each participant in either the Superseded Plan
or the Matching Plan on December 31, 2001, shall continue as a Participant in
this Plan as of January 1, 2002. Each other Covered Employee shall be eligible
to become a participant in this Plan on the first day of the first pay period in
the calendar month next following his or her Employment Date. If a Participant
ceases to be a Covered Employee, such Participant shall remain a Participant
under this Plan but no contributions shall be made to the Plan on his or her
behalf while he or she is not a Covered Employee.
Section 2.2 Participation. Each Covered Employee who is eligible to
participate in the Plan may elect, on a form prescribed by the Committee, to
participate in this Plan on the first day of the first pay period in the
calendar month following the filing of such election. Any Participant who ceases
to be a Covered Employee shall thereupon cease to be eligible to participate in
the Plan; provided, however, that if any such Participant is thereafter
reemployed as a Covered Employee, he or she shall be eligible to elect to resume
participating in the Plan as of the date of such reemployment.
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ARTICLE III.
CONTRIBUTIONS, LIMITATIONS AND FORFEITURES
Section 3.1 Pre-Tax and Pre-Tax Bonus Contributions.
(a) Each Participant may elect to have his or her Employer
make a Pre-Tax Contribution to the Plan on his or her behalf for each
pay period in an amount equal to at least 2% and not in excess of 30%,
of his or her Basic Compensation for that pay period. All such
contributions shall be made by uniform payroll deductions pursuant to a
compensation reduction agreement which authorizes the Employer to pay
such contributions to the Trustee on behalf of the Participant.
(b) In addition, each Participant may elect to have his or her
Employer make a Pre-Tax Bonus Contribution to the Plan on his or her
behalf in an amount equal to at least 2% and not in excess of 30%, of
the bonus payable to such Participant under the Employer's annual bonus
program.
(c) The Committee shall establish and maintain for each
Participant a Pre-Tax Account. All amounts attributable to Pre-Tax
Contributions and Pre-Tax Bonus Contributions made by an Employer on
behalf of such Participant pursuant to this Section 3.1 shall be
credited to such Participant's Pre-Tax Account.
(d) A Participant may change the applicable percentage of such
payroll (or bonus) deductions as of the first day of the first pay
period of any calendar month, or at any time suspend his or her
election to have Pre-Tax Contributions and/or Pre-Tax Bonus
Contributions made to the Plan, provided that written notice of such
change or suspension is delivered to the Committee within such
reasonable period of time prior to the effective date thereof as the
Committee may require.
(e) Any provision of this Plan to the contrary
notwithstanding, the amount of Total Pre-Tax Contributions made to the
Plan by an Employer on behalf of a Participant for a calendar year when
added to the amount of any other elective deferrals within the meaning
of Section 402(g)(3) of the Code made with respect to such Participant
pursuant to any other plan, contract or arrangement of an Employer or
Affiliated Company for such calendar year shall not exceed the dollar
limitation contained in Section 402(g) of the Code in effect for such
calendar year, except to the extent permitted under Section 3.3 of the
Plan and Section 414(v) of the Code, if applicable. If the percentage
of Total Pre-Tax Contributions elected by a Participant results in such
contributions equaling the limitation imposed by Section 402(g) of the
Code prior to the end of a calendar year, then such election by the
Participant shall be deemed to be an election to make After-Tax
Contributions to the Plan at the time such dollar limitation is
exceeded unless otherwise elected by the Participant; provided,
however, that to the extent permitted by Section 414(v) of the Code and
the regulations thereunder, such election shall first be deemed to be
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an election to make Catch-Up Contributions to the Plan. In the event
such contributions are not timely recharacterized and the limitation of
this subsection (e) is exceeded with respect to a Participant for a
Plan Year, then if such Participant notifies the Committee of the
amount of Total Pre-Tax Contributions that exceeded such limitation
within such reasonable period of time prior to the first April 15
following such year as the Committee may prescribe in its absolute
discretion, the excess Total Pre-Tax Contributions (along with any
income allocable thereto for such year, but not for the gap period
following such year) shall be distributed to such Participant no later
than such April 15. A Participant will be deemed to have so notified
the Committee of excess elective deferrals for a calendar year if, and
only to the extent, such excess arises on account of Total Pre-Tax
Contributions made to this Plan and elective deferrals made to other
plans maintained by an Employer or Affiliated Company for such calendar
year. Any such excess deferrals distributed to a Participant shall be
distributed first from any Pre-Tax Bonus Contributions and then, to the
extent necessary, from Pre-Tax Contributions. The income allocable to
any excess Total Pre-Tax Contributions for a Participant for a taxable
year shall be determined by multiplying the amount of income allocable
to such Participant's Pre-Tax Account for such year by a fraction, the
numerator of which is the amount of excess Total Pre-Tax Contributions
for such year and the denominator of which is the sum of the amount
credited to such Participant's Pre-Tax Account as of the beginning of
such year plus the amount of such Participant's Total Pre-Tax
Contributions for such year. If any portion of a Pre-Tax Contribution
is distributed or recharacterized pursuant to this subsection, any
portion of a Matching Contribution (along with any income allocable
thereto) made to this Plan for such Participant that matches the
distributed or recharacterized Pre-Tax Contribution shall be forfeited.
(f) An Employer may amend or revoke any Participant's
compensation reduction agreement at any time during a Plan Year if such
amendment or revocation is deemed by such Employer to be necessary or
appropriate to ensure that all applicable limitations, including those
set forth in Sections 3.1(e), 3.7 and 10.3 are met for such year.
Section 3.2 Matching Contributions. For each pay period an Employer
shall make to the Plan for each Participant in its employ and allocate to such
Participant's Employer Account a Matching Contribution equal to 200 percent of
the Pre-Tax Contributions made by the Employer on such Participant's behalf
during such pay period which are not in excess of five percent of such
Participant's Basic Compensation for such pay period. The Committee shall
establish and maintain an Employer Account for each Participant. All Matching
Contributions made for a Participant pursuant to this Section shall be credited
to such Participant's Employer Account.
Section 3.3 Catch-Up Contributions. All Employees who are eligible to
make Pre-Tax Contributions to this Plan and who have attained age 50 before the
close of the Plan Year shall be eligible to make Catch-Up Contributions pursuant
to a compensation reduction agreement and in accordance with, and subject to the
limitations of, Section 414(v) of the Code and the regulations thereunder. Such
Catch-Up Contributions shall not be taken into account for purposes of the
provisions of the Plan implementing the required limitations of Sections 402(g)
and 415 of the Code. The Plan shall not be treated as failing to satisfy the
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provisions of the Plan implementing the requirements of Section 401(k)(3),
401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of
the making of such Catch-Up Contributions.
Section 3.4 After-Tax Contributions.
(a) Each Participant may elect to make an After-Tax
Contribution to the Plan for each pay period in an amount which, when
combined with any Pre-Tax Contributions made to the Plan on behalf of
such Participant for that pay period, shall not exceed 50% of the
Compensation of such Participant during such pay period.
(b) The Committee shall establish and maintain for each
Participant an After-Tax Account. All amounts attributable to After-Tax
Contributions made by a Participant pursuant to this Section 3.4 shall
be credited to such Participant's After-Tax Account.
(c) After-Tax Contributions may be made in whole or in part by
uniform payroll deductions which the Participant shall in writing
authorize his or her Employer to withhold and pay over to the Trustee.
A Participant may change the applicable percentage of such payroll
deductions as of the first day of the first pay period of any calendar
month, or at any time suspend his or her election to have After-Tax
Contributions made to the Plan, provided that written notice of such
change or suspension is delivered to the Committee within such
reasonable period of time prior to the effective date thereof as the
Committee may require.
(d) At any time and from time to time during a Plan Year, the
Company may limit the After-Tax Contributions made by a Participant or
suspend the making of After-Tax Contributions if the Company, in its
absolute discretion, deems such to be necessary or appropriate to
ensure that all applicable limitations, including those set forth in
Sections 3.7 and 10.3, are satisfied for such year.
Section 3.5 Payment of Contributions. Pre-Tax Contributions, Catch-Up
Contributions and After-Tax Contributions made to the Plan by an Employer for or
on behalf of Participants for a pay period shall be paid to the Trustee in cash
as soon as practicable after such pay period ends, but no later than the 15th
business day after the end of the month in which such pay period ends. Pre-Tax
Bonus Contributions made to the Plan on behalf of Participants shall be paid to
the Trustee in cash as soon as practicable after the bonus payment is made, but
no later than the 15th day of the month after the end of the month in which such
bonus payment is made. Matching Contributions made to the Plan for a pay period
shall be paid to the Trustee as soon as practicable, but no later than 30 days
after the end of the month in which such pay period ends.
Section 3.6 Return of Employer Contributions. Contributions made to
this Plan are conditioned upon being currently deductible under Section 404 of
the Code. Any provision of this Plan to the contrary notwithstanding, upon an
Employer's request, any such contribution or portion thereof made to this Plan
by such Employer which (i) was made under a mistake of fact which is
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subsequently discovered, or (ii) is disallowed as a deduction under Section 404
of the Code, shall be returned to such Employer to the extent not previously
distributed to Participants or their beneficiaries; provided, however, that the
amounts returnable to an Employer pursuant to this Section shall be reduced by
any Trust losses allocable thereto and shall be returned to such Employer only
if such return is made within one year after the mistaken payment of the
contribution or the date of the disallowance of the deduction, as the case may
be. Except as provided in this Section, no contribution made by an Employer
pursuant to this Plan shall ever revert to or be recoverable by any Employer.
Section 3.7 Nondiscrimination Testing.
(a) Any provision of this Plan to the contrary notwithstanding,
if for any Plan Year the actual deferral percentage for the group of
Highly Compensated Employees eligible to elect to have Pre-Tax
Contributions or Pre-Tax Bonus Contributions made during such Plan Year
fails to satisfy one of the following tests:
(1) the actual deferral percentage for said group of
Highly Compensated Employees is not more than 1.25 times the
actual deferral percentage for the preceding Plan Year for all
Non-Highly Compensated Employees eligible during the preceding
Plan Year to elect to have Pre-Tax Contributions or Pre-Tax
Bonus Contributions made on their behalf, or
(2) the excess of the actual deferral percentage for
said group of Highly Compensated Employees over the actual
deferral percentage for the preceding Plan Year for all
Non-Highly Compensated Employees eligible during the preceding
Plan Year to elect to have Pre-Tax Contributions or Pre-Tax
Bonus Contributions made on their behalf is not more than two
percentage points, and the actual deferral percentage for said
group of Highly Compensated Employees is not more than two
times the actual deferral percentage for the preceding year
for all Non-Highly Compensated Employees eligible during the
preceding Plan Year to elect to have Pre-Tax Contributions or
Pre-Tax Bonus Contributions made on their behalf,
then the actual deferral percentage of Participants who are members of
said group of Highly Compensated Employees shall be reduced by reducing
the actual deferral percentages of the Highly Compensated Employees
with the largest individual actual deferral percentages to the largest
uniform actual deferral percentage (commencing with the Highly
Compensated Employee with the largest actual deferral percentage and
reducing his or her actual deferral percentage to the extent necessary
to satisfy one of the above tests or to lower such actual deferral
percentage to the actual deferral percentage of the Highly Compensated
Employee with the next largest actual deferral percentage, and
repeating this process as necessary) that permits the actual deferral
percentage for said group of Highly Compensated Employees to satisfy
one of said tests. For purposes of this subsection (a), the term
"actual deferral percentage" for a specified group of Employees for a
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Plan Year means the average of the ratios (calculated separately for
each Employee in such group and after any distributions to Highly
Compensated Employees required to satisfy the limitation imposed by
Section 402(g) of the Code) of (i) the aggregate amount of Total
Pre-Tax Contributions made on behalf of each such Employee for that
year, to (ii) the amount of such Employee's Compensation for that year
or, in the Committee's discretion, only for such portion of that year
during which the Employee was eligible to participate in the Plan. If
two or more plans that include cash or deferred arrangements are
considered as one plan for purposes of Section 401(a)(4) or 410(b) of
the Code (other than for purposes of the average benefit percentage
test), the cash or deferred arrangements included in such plans shall
be treated as one arrangement for purposes of this subsection (a). If a
Highly Compensated Employee is a participant in two or more cash or
deferred arrangements of an Employer, then for purposes of determining
the actual deferral ratio of such Employee, all such cash or deferred
arrangements (other than those that may not be permissively aggregated)
shall be treated as one cash or deferred arrangement.
(b) The aggregate amount of any Total Pre-Tax Contributions
which may not be credited to Pre-Tax Accounts for a Plan Year because
of the limitation contained in subsection (a) of this Section,
calculated by adding together the dollar amount of excess contributions
determined in subsection (a) of this Section for each affected Highly
Compensated Employee, shall be distributed to Highly Compensated
Employees (along with any income allocable to such excess contributions
for such Plan Year, but not for the gap period following such Plan
Year) no later than the last day of the Plan Year immediately following
such year (and, if practicable, within 2 1/2 months after the end of
such year). The amount of Total Pre-Tax Contributions to be distributed
to a particular Highly Compensated Employee shall be determined on the
basis of the amount of Total Pre-Tax Contributions made for each Highly
Compensated Employee commencing with the Highly Compensated Employee
with the largest amount of Total Pre-Tax Contributions for such Plan
Year and reducing his or her Total Pre-Tax Contributions to the extent
necessary to lower such amount to the amount of Total Pre-Tax
Contributions of the Highly Compensated Employee with the next largest
amount of Total Pre-Tax Contributions, and repeating this process as
necessary to distribute such aggregate amount; provided, however, that
the amount of Total Pre-Tax Contributions to be distributed shall first
be reduced by any excess deferrals to be distributed pursuant to
Section 402(g) of the Code. Any such excess contribution shall be
distributed first from any Pre-Tax Contributions and then, to the
extent necessary, from Pre-Tax Bonus Contributions. The income
allocable to any such excess contributions for a Participant for a Plan
Year shall be determined by multiplying the amount of income allocable
to such Participant's Pre-Tax Account for such year by a fraction, the
numerator of which is the amount of the excess contributions for such
year and the denominator of which is the sum of the amount credited to
such Participant's Pre-Tax Account as of the beginning of such year
plus the amount of such Participant's Total Pre-Tax Contributions for
such year. Any provision of this Plan to the contrary notwithstanding,
Total Pre-Tax Contributions otherwise distributable pursuant to this
subsection (b) to a Participant who is eligible to make Catch-Up
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Contributions to the Plan shall, to the extent permitted by Section
414(v) of the Code and the regulations thereunder, be treated as a
Catch-Up Contribution. If any portion of a Pre-Tax Contribution made by
an Employer on behalf of a Participant is distributed to such
Participant or is treated as a Catch-Up Contribution pursuant to the
foregoing provisions of this subsection (b), any portion of a Matching
Contribution (along with any income allocable thereto) made for such
Participant that matches the distributed Pre-Tax Contribution or
recharacterized Catch-Up Contribution shall be forfeited.
(c) Any provision of this Plan to the contrary notwithstanding,
if for any Plan Year the contribution percentage for the group of
Highly Compensated Employees eligible to receive an allocation of
Matching Contributions or to make After-Tax Contributions to the Plan
for such Plan Year fails to satisfy one of the following tests:
(1) the contribution percentage for said group of
Highly Compensated Employees is not more than 1.25 times the
contribution percentage for the preceding Plan Year for all
Non-Highly Compensated Employees eligible for the preceding
Plan Year to receive an allocation of Matching Contributions
or make After-Tax Contributions, or
(2) the excess of the contribution percentage for
said group of Highly Compensated Employees over the
contribution percentage for the preceding Plan Year for all
Non-Highly Compensated Employees eligible for the preceding
Plan Year to receive an allocation of Matching Contributions
or make After-Tax Contributions is not more than two
percentage points, and the contribution percentage for said
group of Highly Compensated Employees is not more than two
times the contribution percentage for the preceding Plan Year
for all Non-Highly Compensated Employees eligible for the
preceding Plan Year to receive an allocation of Matching
Contributions or make After-Tax Contributions,
then the contribution percentage of Participants who are members of
said group of Highly Compensated Employees shall be reduced by reducing
the contribution percentages of the Highly Compensated Employees with
the largest individual contribution percentages to the largest uniform
contribution percentage (commencing with the Highly Compensated
Employee with the largest contribution percentage and reducing his or
her contribution percentage to the extent necessary to satisfy one of
the above tests or to lower such contribution percentage to the
contribution percentage of the Highly Compensated Employee with the
next largest contribution percentage, and repeating this process as
necessary) that permits the contribution percentage for said group of
Highly Compensated Employees to satisfy one of said tests. For purposes
of this subsection (c), the term "contribution percentage" for a
specified group of Employees for a Plan Year means the average of the
ratios (calculated separately for each Employee in such group and after
application of the reduction provisions of subsection (a) and the
forfeiture provisions of subsection (b) of this Section) of (i) the
aggregate amount of After-Tax Contributions and Matching Contributions
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made by or for such Employee (and, at the election of the Committee,
the Total Pre-Tax Contributions made on behalf of such Employee) for
that year, to (ii) the amount of such Employee's Compensation for that
year or, in the Committee's discretion, only for such portion of that
year during which the Employee was eligible to participate in the Plan.
If two or more plans to which matching contributions or employee
after-tax contributions are made are considered as one plan for
purposes of Section 410(b) of the Code (other than for purposes of the
average benefit percentage test), such plans shall be treated as one
plan for purposes of determining the contribution percentages for this
subsection (c). If a Highly Compensated Employee is a participant in
two or more plans to which matching contributions or employee after-tax
contributions are made, then for purposes of determining the
contribution ratio of such Employee, all such plans (other than those
that may not be permissively aggregated) shall be treated as one plan.
(d) The aggregate amount of any Matching Contributions and
After-Tax Contributions which may not be credited to Participant's
Accounts for a Plan Year because of the limitation contained in
subsection (c) of this Section, calculated by adding together the
dollar amount of excess aggregate contributions determined in
subsection (c) of this Section for each affected Highly Compensated
Employee, shall be forfeited if forfeitable, but if not forfeitable,
distributed to such Highly Compensated Employees (along with any income
allocable to such excess aggregate contributions for such Plan Year,
but not for the gap period following such Plan Year) no later than the
last day of the Plan Year immediately following such year (and, if
practicable, within 2 1/2 months after the end of such year). The
amount to be distributed to a particular Highly Compensated Employee
shall be determined on the basis of the amount of Matching
Contributions and After-Tax Contributions made by or for each such
Highly Compensated Employee commencing with the Highly Compensated
Employee with the largest amount of Matching Contributions and
After-Tax Contributions for such Plan Year and reducing first his or
her After-Tax Contributions and then, if necessary, Matching
Contributions to the extent necessary to lower such total amount to the
amount of Matching Contributions and After-Tax Contributions of the
Highly Compensated Employee with the next largest amount of Matching
Contributions and After-Tax Contributions, and repeating this process
as necessary to distribute such aggregate amount. The income allocable
to any such excess aggregate contributions for a Participant for a Plan
Year shall be determined by multiplying the amount of income allocable
to such Participant's Employer Account or After-Tax Account, whichever
is applicable, for such year by a fraction, the numerator of which is
the amount of the excess aggregate contributions for such year and the
denominator of which is the sum of the amount credited to such
Participant's Employer Account or After-Tax Account, whichever is
applicable, as of the beginning of such year plus the amount of
Matching Contributions or After-Tax Contributions, as applicable, made
for such Participant for such year.
(e) Any provision of this Section to the contrary
notwithstanding, the Company in its discretion may cause the provisions
of subsections (a) and (c) of this Section to be satisifed without use
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of the corrective provisions set forth in subsections (b) and (d) of
this Section by requiring each Employer to make a qualified
non-elective contribution and/or a qualified matching contribution to
the Plan to be allocated to the Pre-Tax Accounts (with respect to a
contribution intended to be taken into account for purposes of
determining the actual deferral percentage pursuant to subsection (a))
or the Employer Accounts (with respect to a contribution intended to be
taken into account for purposes of determining the contribution
percentage pursuant to subsection (c)) of those Participants who were
Non-Highly Compensated Employees in the employ of (or on authorized
leave of absence from) an Employer on the last day of such Plan Year. A
qualified non-elective contribution shall be allocated to the eligible
Participants in the proportion that the Basic Compensation of each such
eligible Participant while both a Participant and a Covered Employee
during that year bears to the Basic Compensation of all such eligible
Participants while both Participants and Covered Employees during that
year. A qualified matching contribution shall be allocated to the
eligible Participants in the proportion that the Pre-Tax Contributions
made with respect to each such eligible Participant for such Plan Year
bears to the Pre-Tax Contributions made with respect to all such
eligible Participants for such Plan Year.
(f) Any provision of this Plan to the contrary notwithstanding,
the determination of the actual deferral percentage and the
contribution percentage required by this Section for Non-Highly
Compensated Employees for the preceding Plan Year shall be made in
accordance with Sections 401(k) and 401(m) of the Code and any
regulations or other authorities issued thereunder.
Section 3.8 Application of Forfeitures. As soon as practicable after
the valuation of all Accounts at the end of each Plan Year, all amounts
forfeited during that Plan Year shall first be applied to restore any forfeited
Accounts required to be restored pursuant to Sections 6.5 and 6.8, and any
forfeitures in excess of the amount needed to restore any such Account may be
applied to pay administrative expenses in accordance with Section 7.4. Any
remaining forfeitures for such Plan Year, if any, shall be used to reduce the
amount of the earliest subsequent Matching Contributions an Employer otherwise
would be required to make to the Plan.
Section 3.9 Rollover Contributions. With the consent of and subject to
such reasonable conditions and limitations as may be imposed by the Committee,
any Covered Employee (regardless of whether he or she is a Participant) may
contribute Rollover Property in cash to the Plan. Each contribution of Rollover
Property shall be credited to the Covered Employee's Rollover Account. An
Employee who is not a Participant, but for whom a Rollover Account is being
maintained, shall be accorded all of the rights and privileges of a Participant
under the Plan except that no contributions (other than contributions of
Rollover Property) shall be made for or on behalf of such Employee until he or
she meets the eligibility and participation requirements of Article II. Subject
to the Committee's consent, the Plan will accept (i) a direct rollover of an
eligible rollover distribution from: (A) a qualified plan described in Section
401(a) or 403(a) of the Code, including after-tax employee contributions, (B) an
annuity contract described in Section 403(b) of the Code, excluding after-tax
employee contributions, or (C) an eligible plan under Section 457(b) of the Code
-17-
which is maintained by a state, political subdivision of a state, or any agency
or instrumentality of a state or political subdivision of a state; or (ii) a
Participant contribution of an eligible rollover distribution from: (A) a
qualified plan described in Section 401(a) or 403(a) of the Code, (B) an annuity
contract described in Section 403(b) of the Code, or (C) an eligible plan under
Section 457(b) of the Code which is maintained by a state, political subdivision
of a state, or any agency or instrumentality of a state or political subdivision
of a state. The Plan will accept a Participant rollover contribution of the
portion of a distribution from an individual retirement account or annuity
described in Section 408(a) or 408(b) of the Code that is eligible to be rolled
over and would otherwise be includible in gross income of the Participant.
ARTICLE IV.
TRUST FUND AND VALUATIONS
Section 4.1 Trust and Trustee. All of the contributions paid to the
Trustee pursuant to this Plan and the Superseded Plan, together with the income
therefrom and the increments thereof, shall be held in trust by the Trustee
under the terms and provisions of the separate trust agreement between the
Trustee and the Company, a copy of which is attached hereto and incorporated
herein by this reference for all purposes, establishing a trust fund known as
the PIONEER NATURAL RESOURCES USA, INC. 401(k) AND MATCHING TRUST for the
exclusive benefit of the Participants and their beneficiaries.
Section 4.2 Trust Investment Options. All amounts credited to a
Participant's Accounts may be invested in Pioneer Stock and/or one or more of
the Investment Funds at the direction of such Participant in accordance with the
provisions of this Section. The assets of the Trust (other than Pioneer Stock)
shall be divided into such number and kind of separate and distinct Investment
Funds as the Committee in its absolute discretion shall authorize from time to
time. The assets of the Trust allocated to a particular Investment Fund shall be
invested by the Trustee and/or one or more investment managers duly appointed in
accordance with the provisions of the trust agreement establishing the Trust, as
the case may be, in such type of property acceptable to the Trustee as the
Trustee is directed to acquire and hold for such Investment Fund. Upon becoming
a Participant in the Plan, each Participant shall direct, in the manner
prescribed by the Committee in its absolute discretion, that all amounts
credited to his or her Accounts under the Plan shall be invested, in percentage
multiples authorized by the Committee, in one or more of the Investment Funds.
Subject to such conditions and limitations as the Committee in its absolute
discretion may prescribe from time to time for application to all Participants
on a uniform basis, a Participant may change his or her investment direction
with respect to future contributions or redirect the investment of the amounts
credited to his or her Accounts provided that notice of such change is delivered
to or in the manner directed by the Committee within such reasonable period of
time prior to the effective date thereof as the Committee may require.
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Section 4.3 Valuation and Adjustment of Accounts. As of each Valuation
Date, the Trustee shall determine the fair market value of all assets of the
Trust with the value of the assets of each Investment Fund being separately
determined. On the basis of such valuations and in accordance with such
procedures as may be specified from time to time by the Committee, the portion
of each Account invested in a particular Investment Fund shall be adjusted by
the Committee to reflect its proportionate share of the income collected and
accrued, realized and unrealized profits and losses, expenses and all other
transactions attributable to that particular Investment Fund for the valuation
period then ended. All cash dividends, stock dividends, stock splits and other
amounts received by the Trustee with respect to Pioneer Stock held for an
Account (including the forfeiture account established pursuant to Section 6.5)
shall be credited to such Account. The amount of any distribution, withdrawal or
forfeiture shall be determined on the basis of the most recent valuation
preceding the date of distribution, withdrawal or forfeiture, as the case may
be.
ARTICLE V.
VESTING
Section 5.1 Fully Vested Accounts. The amounts credited to a
Participant's After-Tax Account, Mesa After-Tax Account, Mesa Premium Account,
Mesa Profit-Sharing Account, Pre-Tax Account, Prior Plan Employer Account, Prior
Plan Pre-Tax Account, and Rollover Account shall be fully vested at all times.
Section 5.2 Vesting of Employer Account.
(a) The amounts credited to the Employer Account and Matching
Plan Account of a Participant shall become fully vested upon the
occurrence of any of the following events while the Participant is in
the employ of (or on authorized leave of absence from) an Employer or
Affiliated Company: (i) the completion of an Hour of Service by the
Participant on or after the date he or she attains age 60, (ii) the
Participant's death, or (iii) the Participant's Permanent Disability.
Unless sooner vested pursuant to the preceding sentence, and except as
provided in subsection (b) of this Section and Section 5.3, the amounts
credited to a Participant's Employer Account and Matching Plan Account
shall vest in accordance with the following schedule:
Period of Service
Completed by Participant Percentage Vested
------------------------ -----------------
Less than 1 year None
1 year 25%
2 years 50%
3 years 75%
4 or more years 100%
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(b) If a Participant makes an in-service withdrawal under
Section 6.6 from his or her Employer Account at a time when the
Participant is not fully vested, the Participant's vested amount in
such account on any date thereafter shall be an amount X determined by
the following formula: X = P(AB + D) - D. For purposes of this formula,
P is the Participant's vested percentage under the Plan's vesting
schedule on the relevant date, AB is the account balance on the
relevant date and D is the amount of the Participant's in-service
withdrawal.
Section 5.3 Special Vesting Provisions.
(a) Any provision of this Plan to the contrary notwithstanding,
the amounts credited to the Employer Account and/or Matching Plan
Account of a Participant who is specifically designated by the Vice
President Administration of the Company as being involuntarily
terminated in connection with the divestiture program and corporate
restructuring announced on February 10, 1998, shall become fully vested
and nonforfeitable on the date of such involuntary termination.
(b) Any provision of this Plan to the contrary notwithstanding,
the amounts credited to the Employer Account and/or Matching Plan
Account of a Participant who is specifically designated by the Vice
President Administration of the Company as being involuntarily
terminated in connection with the corporate restructuring announced on
November 11, 1998, shall become fully vested and nonforfeitable on the
date of such involuntary termination.
(c) Any provision of this Plan to the contrary notwithstanding,
the amounts credited to the Matching Plan Account of a Participant who
is specifically designated by the Vice President Administration of the
Company as being involuntarily terminated in connection with the sale
by the Company of the Plum Creek Plant, Leon County, Texas, to a third
party shall become fully vested and nonforfeitable on the date of such
involuntary termination.
(d) Any provision of this Plan to the contrary notwithstanding,
the amounts credited to the Matching Plan Account of a Participant who
is specifically designated by the Vice President - Administration and
Risk Management of the Company as being involuntarily terminated in
connection with one of the following events shall become fully vested
and nonforfeitable on the date of such involuntary termination:
(i) the transfer of operations of the Howard Parker/Joe
Parsley Joint Venture wells to a third party;
(ii) the sale of Iatan Field properties to a third party;
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(iii) the reorganization of Offshore Operations effective
September 22, 1999;
(iv) the restructuring and consolidation of the Domestic
Reservoir Engineering Department effective February
15, 2000; or
(v) the sale of NationsBank building, Midland, Texas.
(e) Any provision of this Plan to the contrary notwithstanding,
the amounts credited to the Matching Plan Account of a Participant who
is specifically designated by the Vice President - Administration and
Risk Management of the Company as being involuntarily terminated in
connection with the implementation of the TOW Production System
technology, shall become fully vested and nonforfeitable on the date of
such involuntary termination.
ARTICLE VI.
VALUATIONS, DISTRIBUTIONS AND WITHDRAWALS
Section 6.1 Time of Distribution.
(a) Distribution to a Participant or beneficiary under this
Article shall be made or commence being made no later than 60 days
after the close of the Plan Year in which the latest of the following
occurs: (i) the Participant's Normal Retirement Date, (ii) the tenth
anniversary of the year in which the Participant commenced
participation in the Plan, or (iii) the Participant's separation from
the employment of an Employer for any reason other than his or her
transfer to the employment of another Employer or Affiliated Company.
(b) Any provision of this Plan to the contrary notwithstanding,
in the case of a Participant who is a five-percent owner (as defined in
Section 416(i) of the Code), distribution to such Participant under the
Plan shall be made or commence being made no later than April 1 of the
calendar year following the calendar year in which the Participant
attains age 70 1/2. Distributions that commence being made pursuant to
the preceding sentence to a Participant who has not separated from the
employment of an Employer or Affiliated Company shall be made pursuant
to Section 6.2 as if the Participant had terminated employment at such
time and shall be made in accordance with the minimum distribution
requirements of Section 401(a)(9) of the Code and such regulations
thereunder as may be applicable from time to time (or for periods prior
to the effective date of final regulations under Section 401(a)(9) of
the Code, pursuant to the regulations that were proposed on January 17,
2001); provided, however, that if the Participant elects to waive the
normal form of payment in accordance with Section 6.2, the alternative
form of distribution shall be the minimum amounts required to be
distributed pursuant to Section 401(a)(9) of the Code and such
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regulations thereunder as may be applicable from time to time (or for
periods prior to the effective date of final regulations under Section
401(a)(9) of the Code pursuant to regulations that were proposed on
January 17, 2001), with any amount remaining upon the termination of
the Participant's employment or the death of the Participant to be paid
in accordance with Section 6.2 or Section 6.3, whichever is applicable.
Further, any other Participant who attained age 70 1/2 prior to January
1, 1999, and who elected to continue to receive distributions prior to
such Participant's termination of employment shall be entitled receive
an annual distribution in accordance with the preceding sentence (or
may elect a larger or smaller amount for such annual distribution)
unless and until such Participant revokes such election. Any provision
of this Plan to the contrary notwithstanding, no distribution shall be
made from this Plan that would violate Section 401(k) of the Code.
(c) Subject to the provisions of this Article requiring that
distributions and withdrawals be made in the form of an annuity
contract, distributions and withdrawals shall be made in cash, except
that amounts credited to an Account that are invested in Pioneer Stock
may, at the election of the Participant, be distributed in the form of
Pioneer Stock with cash in lieu of fractional shares.
(d) Any provision of this Plan to the contrary notwithstanding,
(i) all distributions from the Plan shall be made in accordance with
Section 401(a)(9) of the Code and the regulations thereunder, and (ii)
all optional forms of benefit under the Plan, the Superseded Plan, the
Matching Plan, the Mesa Premium Plan, and the Mesa Profit-Sharing Plan
that are protected benefits under Section 411(d)(6) of the Code shall
continue to be optional forms of benefit for Participants to whom such
optional forms of benefit apply notwithstanding any subsequent
amendment purporting to revise or delete any such optional form of
benefit, except to the extent that such optional forms of benefit may
be deleted in accordance with applicable law.
Section 6.2 Distribution of Retirement and Disability Benefits.
(a) Except as otherwise provided in this Section, upon the
Retirement or termination of employment on account of Permanent
Disability of a Participant, the Vested Interest of such Participant
shall be distributed to such Participant by the Trustee at the
direction of the Committee in a single distribution; provided, however,
that if such Participant's Vested Interest exceeds $5,000, he or she
may elect to receive his or her Vested Interest in monthly, quarterly
or annual installment distributions over a period of two or more years
with the first such installment to be payable within 90 days after the
end of the Plan Year in which the Participant's employment terminates.
Such installment payments may be made over a period of years not to
exceed one or a combination of the following periods: (i) the life of
the Participant, (ii) the lives of the Participant and his or her
designated beneficiary, (iii) a period certain not extending beyond the
life expectancy of the Participant, and (iv) a period certain not
extending beyond the joint life and last survivor expectancy of the
Participant and his or her designated beneficiary. Any provision of
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Section 6.3 to the contrary notwithstanding, if a Participant who
elected installment payments dies prior to the distribution of the
entire amount of his or her Vested Interest, the remaining portion
thereof shall be distributed to his or her beneficiary or
beneficiaries, as determined in accordance with Section 6.3(a), in a
single distribution within 90 days after the end of the
Plan Year during which the Participant died. Notwithstanding the
foregoing provisions of this Section 6.2, no distribution shall be made
upon a Participant's termination of employment on account of Permanent
Disability prior to his or her Normal Retirement Date unless (i) such
Participant elects to receive such distribution or (ii) such
Participant's Vested Interest does not exceed $5,000. For purposes of
determining whether the value of a Participant's Vested Interest
exceeds or does not exceed $5,000, the value of a Participant's Vested
Interest shall be determined without regard to the value of the
Participant's Rollover Account.
(b) Except as otherwise provided in this subsection (b), upon
the Retirement or termination of employment on account of Permanent
Disability of a Participant whose Vested Interest exceeds $5,000, such
Participant's Matching Plan Account, Mesa Premium Account, Prior Plan
Employer Account and Prior Plan Pre-Tax Account shall be distributed to
him or her by the Trustee at the direction of the Committee in the form
of a Qualified Joint and Survivor Annuity contract to be purchased from
a company selected by the Committee and commencing in payment as soon
as practicable. Not more than 90 days prior to the date such annuity
contract is to commence in payment, the Committee shall provide such
Participant with a written explanation of (i) the terms and conditions
of the Qualified Joint and Survivor Annuity, (ii) his or her right to
make, and the effect of, an election to waive the Qualified Joint and
Survivor Annuity form of benefit, (iii) the rights of his or her spouse
with respect to the receipt and waiver of the Qualified Joint and
Survivor Annuity, and (iv) the right to make, and the effect of, a
revocation of an election to waive the Qualified Joint and Survivor
Annuity. The written explanation shall be required at least 30 days
prior to the date the Qualified Joint and Survivor Annuity contract is
to commence in payment; provided, however, that a Participant may elect
(with any applicable spousal consent) to waive such requirement if the
distribution to the Participant commences no earlier than 8 days after
such explanation is provided. After receiving the written explanation,
the Participant may elect at any time during the 90-day period ending
on the date the annuity contract is to commence in payment to waive the
Qualified Joint and Survivor Annuity form of benefit and also may
revoke any such election during such period. Any such election to waive
a Qualified Joint and Survivor Annuity form of benefit by a married
Participant will be effective only if the spouse of such Participant
consents in writing within the 90-day period preceding such date to
both the election and the optional form of benefit selected by the
Participant and such consent is witnessed by a notary public. Any
amount payable from the Matching Plan Account, Mesa Premium Account,
Prior Plan Employer Account or Prior Plan Pre-Tax Account upon the
Retirement or Permanent Disability of a Participant who has elected to
waive the Qualified Joint and Survivor Annuity form of benefit as
provided above shall be distributed to such Participant by the Trustee
at the direction of the Committee in accordance with subsection (a) of
this Section; provided, however, that a Participant who has an amount
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payable from his or her Matching Plan Account or Mesa Premium Account
may, in addition to the optional forms available under subsection (a),
elect to have such amounts paid in the form of an Alternate Qualified
Joint and Survivor Annuity. For purposes of determining whether the
value of a Participant's Vested Interest exceeds $5,000, the value of a
Participant's Vested Interest shall be determined without regard to the
value of the Participant's Rollover Account.
Section 6.3 Distribution of Death Benefit.
(a) Except as otherwise provided in this Section, upon the
death of a Participant, the Vested Interest of such Participant shall
be distributed by the Trustee at the direction of the Committee to such
Participant's beneficiary or beneficiaries determined in accordance
with this subsection (a). Any amount payable under the Plan upon the
death of a married Participant shall be distributed to the surviving
spouse of such Participant unless such Participant designates otherwise
with the written consent of his or her spouse which is witnessed by a
notary public. Any amount payable under the Plan upon the death of a
Participant who is not married or who is married but has designated, as
provided above, a beneficiary other than his or her spouse, shall be
distributed to the beneficiary or beneficiaries designated by such
Participant. Such designation of beneficiary or beneficiaries shall be
made in writing on a form prescribed by the Committee and, when filed
with or as directed by the Committee, shall become effective and remain
in effect until changed by the Participant by the filing of a new
beneficiary designation form with the Committee. If an unmarried
Participant fails to so designate a beneficiary, or in the event all of
a Participant's designated beneficiaries are individuals who predecease
such Participant, then the Committee shall direct the Trustee to
distribute the amount payable under the Plan to such Participant's
surviving spouse, if any, but if none, to such Participant's estate.
All distributions under this subsection (a) shall be made in a single
distribution as soon as practicable following a Participant's death;
provided, however, that if the Participant's Vested Interest exceeds
$5,000, he or she may elect (or if the Participant does not elect, his
or her designated beneficiary may elect) that distribution be made in
monthly, quarterly or annual installments over a period of two or more
years with the first such installment to be payable within 90 days
after the end of the Plan Year in which the Participant died.
Installment payments may be made only to an individual over a period of
years not to exceed one or a combination of the following periods: (i)
the life of the Participant's designated beneficiary, or (ii) a period
certain not extending beyond the life expectancy of the Participant's
designated beneficiary. For purposes of determining whether the value
of a Participant's Vested Interest exceeds $5,000, the value of a
Participant's Vested Interest shall be determined without regard to the
value of the Participant's Rollover Account.
(b) Any provision of subsection (a) of this Section to the
contrary notwithstanding, except as otherwise provided in this
subsection (b), upon the death of a married Participant whose Vested
Interest exceeds $5,000, such Participant's Matching Plan Account, Mesa
Premium Account, Prior Plan Employer Account and Prior Plan Pre-Tax
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Account shall be distributed to his or her surviving spouse in the form
of a Qualified Preretirement Survivor Annuity contract to be purchased
from a company selected by the Committee and commencing in payment on
the date that would have been such Participant's Normal Retirement Date
if he or she were still living. The Committee shall provide each such
married Participant with a written explanation of the Qualified
Preretirement Survivor Annuity provided above, including the
Participant's right to waive the distribution of such Qualified
Preretirement Survivor Annuity with the consent of his or her spouse
and to revoke any such waiver, within whichever of the following
periods ends last: (i) the period beginning with the first day of the
Plan Year in which the Participant attains the age of 32 and ending
with the close of the Plan Year preceding the Plan Year in which the
Participant attains the age of 35, (ii) the one-year period after the
individual becomes a Participant, or (iii) the one-year period after
separation from employment in the case of a Participant who separates
before attaining age 35. Each married Participant may elect at any time
prior to such Participant's death to waive the Qualified Preretirement
Survivor Annuity form of benefit provided above so that his or her
entire benefit may be paid to his or her designated beneficiary. No
election to waive the Qualified Preretirement Survivor Annuity will be
effective upon the Participant's death unless such election designates
a beneficiary that cannot be changed without spousal consent, the
Participant's surviving spouse consents in writing to such election and
such consent is witnessed by a notary public. A spousal consent will be
valid only with respect to the spouse who signs the consent and such
consent shall be irrevocable. A married Participant may revoke any such
election to waive the Qualified Preretirement Survivor Annuity at any
time prior to his or her death. The amount payable under the Plan upon
the death of a married Participant who has elected, as provided above,
to waive the Qualified Preretirement Survivor Annuity shall be
distributed in accordance with subsection (a) of this Section. The
surviving spouse of any deceased Participant may elect in writing after
the Participant's death to receive the entire benefit otherwise payable
to such surviving spouse in accordance with this subsection (a) of this
Section. For purposes of determining whether the value of a
Participant's Vested Interest exceeds $5,000, the value of a
Participant's Vested Interest shall be determined without regard to the
value of the Participant's Rollover Account.
Section 6.4 Distribution of Separation from Employment Benefit.
(a) Except as otherwise provided in this Section, if a
Participant separates from the employment of an Employer or Affiliated
Company for any reason other than his or her Retirement, Permanent
Disability, death or transfer to the employment of another Employer or
Affiliated Company, the Accounts of such Participant shall be retained
in trust and shall continue to be credited with applicable earnings as
provided in Section 4.3, and the Vested Interest of such Participant
shall be distributed to him or her by the Trustee at the direction of
the Committee in accordance with Section 6.2(a) as soon as practicable
after his or her Normal Retirement Date (or, if the Participant dies
prior to such date, the Vested Interest of such Participant shall be
distributed upon his or her death in accordance with Section 6.3);
provided, however, that (i) each such Participant shall have the right
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to elect on a form prescribed by the Committee to receive an early
distribution of his or her Vested Interest as soon as practicable and
(ii) the Committee shall require an early distribution of any such
Participant's Vested Interest which does not exceed $5,000 in the form
of a single distribution. The Vested Interest of a Participant who
elects to receive an early distribution shall be distributed to him or
her in the same manner as provided in Section 6.2(a) for a distribution
upon Retirement or Permanent Disability. Any provision of this Plan to
the contrary notwithstanding, for purposes of this Article a
Participant shall not be treated as having separated from the
employment of an Employer or Affiliated Company prior to such time that
a distribution can be made to such Participant in accordance with
Section 401(k) of the Code and the regulations thereunder. For purposes
of determining whether the value of a Participant's Vested Interest
exceeds $5,000, the value of a Participant's Vested Interest
shall be determined without regard to the value of the Participant's
Rollover Account.
(b) Any provision of subsection (a) of this Section to the
contrary notwithstanding, except as otherwise provided in this
subsection (b), if a Participant's whose Vested Interest exceeds $5,000
separates from the employment of an Employer or Affiliated Company for
any reason other than his or her Retirement, Permanent Disability,
death or transfer to the employment of another Employer or Affiliated
Company, such Participant's Matching Plan Account, Mesa Premium
Account, Prior Plan Employer Account and/or Prior Plan Pre-Tax Account
shall be distributed to such Participant by the Trustee at the
direction of the Committee upon such Participant's Normal Retirement
Date by payment of the entire amount in the form of a Qualified Joint
and Survivor Annuity contract to be purchased from a company selected
by the Committee and commencing in payment as soon as practicable
thereafter (or, if the Participant dies prior to his or her Normal
Retirement Date, the Vested Interest of such Participant under the Plan
shall be distributed upon his or her death in accordance with Section
6.3); provided, however, that each such Participant shall have the
right to elect on a form prescribed by the Committee to receive an
early distribution of the amount credited to his or her Matching Plan
Account, Mesa Premium Account, Prior Plan Employer Account and/or Prior
Plan Pre-Tax Account as soon as practicable after such election. If a
Participant elects under this subsection (b) to receive an early
distribution, such distribution shall be made in the form of (i) a
Qualified Joint and Survivor Annuity contract to be purchased from a
company selected by the Committee and commencing in payment as soon as
practicable following such election, or (ii) upon satisfaction of the
notice and waiver requirements of Section 6.2(b), in accordance with
subsection (a) of this Section.
Section 6.5 Forfeitures.
(a) Unless sooner forfeited as provided below, any unvested
portion of the Accounts of a Participant who separates from the
employment of an Employer or Affiliated Company for any reason other
than his or her Retirement, Permanent Disability, death or transfer to
the employment of another Employer or Affiliated Company shall be
-26-
forfeited upon the earlier of the date of such Participant's death or
the date such Participant incurs five consecutive One Year Breaks in
Service unless such Participant is reemployed by an Employer or
Affiliated Company prior to such date.
(b) If a Participant receives a complete distribution of his
or her Vested Interest under Section 6.4 by the close of the second
Plan Year following the Plan Year in which his or her separation from
employment occurred, any portion of such Participant's Accounts which
is not vested at the time of such distribution shall be forfeited at
such time. If a Participant who separates from the employment of an
Employer or Affiliated Company for any reason other than his or her
Retirement, Permanent Disability, death or transfer to the employment
of another Employer or Affiliated Company, is not entitled to receive
any distribution from the Plan due to the fact that such Participant
has no Vested Interest, such Participant shall be deemed to have
received a distribution from the Plan of his or her entire Vested
Interest under the Plan and any amount credited to such Participant's
Accounts shall be forfeited at the time of such separation from
employment. If a Participant, any portion of whose Accounts is
forfeited pursuant to this subsection (b), is reemployed as a Covered
Employee prior to incurring five consecutive One Year Breaks in
Service, the amount so forfeited shall be restored to such individual's
Accounts, out of current-year forfeitures or, if such forfeitures are
insufficient, by an additional Employer contribution; provided,
however, that no amount shall be restored to the Accounts of an
individual who previously received a distribution of the vested portion
of such Accounts unless he or she repays to the Plan, while a Covered
Employee and within five years of the date of such reemployment, the
full amount previously distributed from such Accounts for crediting to
his or her Accounts.
(c) If a Participant who has not yet incurred five consecutive
One Year Breaks in Service receives a distribution under Section 6.4
after the end of the second Plan Year following the year in which his
or her separation from employment occurred, any portion of such
Participant's Accounts which is not vested at the time of such
distribution shall be retained in such Account and shall be forfeited
upon the earlier of the date of such Participant's death or the date
such Participant incurs five consecutive One Year Breaks in Service
unless such Participant is reemployed by an Employer or Affiliated
Company prior to such date. If a Participant receives a distribution
from the Plan after the end of the second Plan Year following the year
in which his or her separation from employment occurred and is
reemployed by an Employer or Affiliated Company prior to incurring five
consecutive One Year Breaks in Service, then the unvested balance in
his or her Accounts shall be transferred to a segregated account for
such Participant and the amount that the Participant is entitled to
receive from such segregated account as of any later date shall be an
amount equal to X, which amount shall be determined in accordance with
the following formula: X = P(AB + D) - D, where P is the Participant's
vested percentage at such later date, AB is the amount in his or her
segregated account at such later date, and D is the amount distributed
to the Participant in connection with his or her earlier separation
from employment.
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(d) All amounts forfeited under the Plan shall be credited to
a forfeiture account and invested by the Trustee at the direction of
the Committee in its discretion until such forfeited amounts and any
earnings attributable thereto are applied in accordance with Section
3.8.
Section 6.6 In-Service Withdrawals.
(a) A Participant in the employ of an Employer may make --
(i) a withdrawal of all or a portion (in multiples of 10%
or in whole dollar amounts) of the total amount
credited to his or her After-Tax Account, Mesa
After-Tax Account or Rollover Account;
(ii) if the Participant has attained the age of 59 1/2, a
withdrawal of all or a portion (in multiples of 10%
or in whole dollar amounts) of the total vested
amount credited to his or her Accounts (other than
his or her Matching Plan Account and Mesa Premium
Account); or
(iii) a hardship withdrawal of such amount as the Committee
shall determine to be necessary to satisfy an
immediate and heavy financial need of such
Participant from his or her Pre-Tax Account and Prior
Plan Pre-Tax Account, other than earnings credited to
either such Account for any period of time after
December 31, 1988, and qualified nonelective
contributions allocated to either such Account;
provided, however, that (i) no withdrawal may be made unless notice of
such withdrawal is delivered to or in the manner prescribed by the
Committee by the withdrawing Participant within such period of time
prior to the effective date thereof as the Committee may prescribe in
its discretion, (ii) no withdrawal may be made by a Participant to whom
a loan from the Trust is then outstanding unless the Committee is
satisfied that such loan will remain nontaxable and fully secured by
the withdrawing Participant's Vested Interest following such
withdrawal, and (iii) withdrawals from the Prior Plan Pre-Tax Account
and Prior Plan Employer Account may be made only pursuant to the notice
and consent requirements of Section 6.2(b). The Committee shall direct
the Trustee to distribute any withdrawn amount to such Participant as
soon as practicable following the effective date of the withdrawal. Any
withdrawal from an Account pursuant to this Section shall be taken
proportionally from each Investment Fund in which such Account is
invested. The Committee may prescribe uniform and nondiscriminatory
rules and procedures limiting the number of times that a Participant
may make withdrawals during a Plan Year and the minimum amount that a
Participant may withdraw on any single occasion.
(b) A hardship withdrawal will be considered to be made on
account of an immediate and heavy financial need of a Participant only
if the Committee determines that such withdrawal is on account of (i)
expenses for medical care described in Section 213(d) of the Code
-28-
previously incurred by such Participant or his or her spouse or
dependents (as defined in Section 152 of the Code) or necessary for
such individuals to obtain such care, (ii) costs directly related to
the purchase of a principal residence for such Participant (excluding
mortgage payments), (iii) payment of tuition and related educational
fees for the next 12 months of post-secondary education for
such Participant or his or her spouse, children or dependents (as so
defined), or (iv) payments necessary to prevent the eviction of such
Participant from his or her principal residence or foreclosure on the
mortgage of such residence.
(c) A hardship withdrawal will be considered to be necessary
to satisfy an immediate and heavy financial need of a Participant only
if the Committee determines that (i) the amount of such withdrawal is
not in excess of the amount of such need plus any amounts necessary to
pay any federal, state or local income taxes or penalties reasonably
anticipated to result from the withdrawal, and (ii) such Participant
has obtained all distributions and withdrawals, other than hardship
withdrawals, and all nontaxable loans currently available under all
plans maintained by the Employers.
(d) Any provision of this Plan to the contrary notwithstanding,
if a Participant makes a hardship withdrawal, (i) no Pre-Tax
Contributions or Pre-Tax Bonus Contributions shall be made on behalf of
such Participant for 6 months after receipt of such withdrawal and no
contributions shall be made by or on behalf of such Participant to any
other deferred compensation plan maintained by an Employer or
Affiliated Company for 6 months after receipt of such withdrawal and
(ii) the Total Pre-Tax Contributions made on behalf of such Participant
for the calendar year immediately following the calendar year of such
withdrawal shall not exceed the amount by which the limitation under
Section 402(g) of the Code for such next calendar year exceeds the
amount of the Total Pre-Tax Contributions made on behalf of such
Participant for the calendar year of such withdrawal.
Section 6.7 Distributions to Minors and Persons Under Legal Disability.
If any distribution under the Plan becomes payable to a minor or other person
under a legal disability, such distribution may be made to the duly appointed
guardian or other legal representative of the estate of such minor or person
under legal disability.
Section 6.8 Benefits Payable to Missing Participant or Beneficiary. If
the Committee cannot locate a Participant or beneficiary entitled to a
distribution under this Plan within a period of three years after such
Participant or beneficiary becomes entitled to the distribution, the amounts
credited to the Accounts of such Participant or beneficiary shall be forfeited;
provided, however, that if a claim for any such forfeited amounts is
subsequently made by any person entitled to the distribution, such forfeited
amounts shall be restored (without adjustment for earnings or appreciation) out
of current-year forfeitures, or if such forfeitures are insufficient, by an
additional Employer contribution.
-29-
Section 6.9 Plan Loans.
(a) Subject to such conditions and limitations as the
Committee may from time to time prescribe for application to all
Participants and beneficiaries on a uniform basis, at the request of a
Participant or beneficiary of a deceased Participant who is a party in
interest (within the meaning of Section 3(14) of the Employee
Retirement Income Security Act of 1974, as amended) with respect to the
Plan (hereinafter called the "Borrower"), the Committee shall direct
the Trustee to loan to such Borrower from his or her Accounts (other
than the Borrower's Matching Plan Account and Mesa Premium Account) an
amount of money which, when added to the total outstanding balance of
all other loans to such Borrower from the Plan or from a qualified
employer plan (within the meaning of Section 72(p) of the Code)
maintained by an Employer or Affiliated Company, does not exceed the
lesser of (i) $50,000 (reduced, however, by the excess, if any, of the
highest total outstanding balance of all such other loans during the
one-year period ending on the day before the date such loan is made,
over the outstanding balance of all such other loans on the date such
loan is made), or (ii) one-half of such Participant's Vested Interest
under the Plan (or, in the case of a loan to a beneficiary, one-half of
such beneficiary's Accounts).
(b) Any such loan made to a Borrower shall be evidenced by a
promissory note or other evidence of indebtedness payable to the
Trustee, shall bear a reasonable rate of interest, shall be secured by
one-half of the Participant's vested interest under the Plan (or, in
the case of a loan to a beneficiary, by one-half of such beneficiary's
Accounts), shall be repayable in substantially equal payments no less
frequently than quarterly and shall be repayable within five years or,
in the case of a loan that is to be used to acquire any dwelling unit
which within a reasonable period of time is to be used as the principal
residence of the Participant, within such period greater than five
years as shall be determined by the Committee in its absolute
discretion.
(c) Any provision of this Plan to the contrary notwithstanding,
(i) the promissory note or other evidence of indebtedness evidencing
any such loan shall be held by the Trustee as a segregated investment
allocated to and made solely for the benefit of the Account of the
Borrower from which such loan was made, and (ii) no loan shall be made
to a married Participant from a Prior Plan Pre-Tax Account or Prior
Plan Employer Account unless the spouse of such Participant consents in
writing thereto within the 90-day period preceding the date such loan
is made and such consent is witnessed by a notary public.
Section 6.10 Qualified Domestic Relations Orders. Any provision of
this Plan to the contrary notwithstanding:
(a) The Committee shall establish and maintain for each
alternate payee named with respect to a Participant under a domestic
relations order which is determined by the Committee to be a qualified
domestic relations order (as defined in Section 414(p) of the Code)
-30-
such separate Accounts as the Committee may deem to be necessary or
appropriate to reflect such alternate payee's interest in the Accounts
of such Participant. Such alternate payee's Accounts shall be credited
with the alternate payee's interest in the Participant's Accounts as
determined under such qualified domestic relations order. The alternate
payee may change investment direction with respect to his or her
Account balances in accordance with Section 4.2 in the same manner as
the Participant.
(b) Except to the extent otherwise provided in the qualified
domestic relations order naming an alternate payee with respect to a
Participant, (i) the alternate payee may designate a beneficiary on a
form prescribed by and filed with or as directed by the Committee, (ii)
if no such beneficiary is validly designated or if the designated
beneficiary is a person who predeceases the alternate payee, the
beneficiary of the alternate payee shall be the alternate payee's
estate, and (iii) the beneficiary of the alternate payee shall be
accorded under the Plan all of the rights and privileges of the
beneficiary of a Participant.
(c) An alternate payee named with respect to a Participant
shall be entitled to receive a distribution from the Plan in accordance
with the qualified domestic relations order naming such alternate
payee. Such distribution may be made only in a form provided under the
Plan and shall include only such amounts as are vested. If a qualified
domestic relations order so provides, a lump sum distribution of the
total vested amount credited to the alternate payee's Accounts may be
made to the alternate payee at any time prior to the date the
Participant named in such qualified domestic relations order attains
his or her earliest retirement age (as defined in Section 414(p)(4)(B)
of the Code). To the extent provided by a qualified domestic relations
order, the alternate payee named with respect to a Participant may make
withdrawals (other than hardship withdrawals) from his or her Accounts
in accordance with Article VI in the same manner as the Participant
with respect to whom such alternate payee was named under said
qualified domestic relations order.
(d) If a portion of any unvested amount credited to the
Employer Account or Matching Plan Account of a Participant named in the
qualified domestic relations order is credited to the Employer Account
or Matching Plan Account, whichever is applicable, of the alternate
payee named in such qualified domestic relations order, the portion
credited to the alternate payee's Employer Account or Matching Plan
Account shall vest and/or be forfeited at the same time and in the same
manner as the Participant's Employer Account or Matching Plan Account,
whichever is applicable.
Section 6.11 Transfer of Eligible Rollover Distribution. If a
Participant is entitled to receive an eligible rollover distribution (as defined
in Section 402(c) of the Code and the regulations thereunder) from the Plan,
such Participant may elect to have the Committee direct the Trustee to transfer
the entire amount of such distribution directly to any of the following
"eligible retirement plans" specified by such Participant: an individual
retirement account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code (other than an
-31-
endowment contract), a defined contribution plan qualified under Section 401(a)
of the Code the terms of which permit rollover contributions or an annuity plan
described in Section 403(a) of the Code. If the surviving spouse of a deceased
Participant is entitled to receive an eligible rollover distribution from the
Plan, such surviving spouse may elect to have the Committee direct the Trustee
to transfer the entire amount of such distribution directly to either an
individual retirement account described in Section 408(a) of the Code or an
individual retirement annuity described in Section 408(b) of the Code (other
than an endowment contract) specified by such surviving spouse. If an alternate
payee under a qualified domestic relations order (as defined in Section 414(p)
of the Code) is the spouse or former spouse of the Participant specified in the
qualified domestic relations order, this Section shall apply to such alternate
payee as if the alternate payee were a Participant. A distributee of an eligible
rollover distribution who is entitled to make an election under this Section may
specify that some portion less than the entire amount of such distribution be
transferred in accordance with this Section. The preceding provisions of this
Section to the contrary notwithstanding, (i) an "eligible retirement plan" shall
also mean an annuity contract described in Section 403(b) of the Code and an
eligible plan under Section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this Plan, (ii) the definition of
"eligible retirement plan" shall also apply in the case of a distribution to a
surviving spouse, or to a spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in Section 414(p) of the
Code, (iii) any amount that is distributed on account of hardship shall not be
an eligible rollover distribution and the distributee may not elect to have any
portion of such a distribution paid directly to an eligible retirement plan, and
(iv) a portion of a distribution shall not fail to be an eligible rollover
distribution merely because the portion consists of after-tax employee
contributions which are not includible in gross income, provided that such
portion may be transferred only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Code, or to a qualified defined
contribution plan described in Section 401(a) or 403(a) of the Code that agrees
to separately account for amounts so transferred, including separately
accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is not so includible.
ARTICLE VII.
PLAN ADMINISTRATION
Section 7.1 401(k) and Matching Plan Committee. The plan administrator
of the Plan shall be a 401(k) and Matching Plan Committee composed of at least
three individuals appointed by the Board of Directors of the Company. Each
member of the Committee so appointed shall serve in such office until his or her
death, resignation or removal by the Board of Directors of the Company. The
Board of Directors of the Company may remove any member of the Committee at any
time by giving written notice thereof to the members of the Committee. Vacancies
shall likewise be filled from time to time by the Board of Directors of the
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Company. The members of the Committee shall receive no remuneration from the
Plan for their services as Committee members.
Section 7.2 Powers, Duties and Liabilities of the Committee. The
Committee shall have discretionary and final authority to interpret and
implement the provisions of the Plan, including without limitation authority to
determine eligibility for benefits under the Plan, and shall perform all of the
duties and exercise all of the powers and discretion granted to it under the
terms of the Plan. The Committee shall act by a majority of its members at the
time in office and such action may be taken either by a vote at a meeting or in
writing without a meeting. The Committee may by such majority action authorize
any one or more of its members to execute any document or documents on behalf of
the Committee, in which event the Committee shall notify the Trustee in writing
of such action and the name or names of its member or members so authorized to
act. Every interpretation, choice, determination or other exercise by the
Committee of any discretion given either expressly or by implication to it shall
be conclusive and binding upon all parties directly or indirectly affected,
without restriction, however, on the right of the Committee to reconsider and
redetermine such actions. In performing any duty or exercising any power herein
conferred, the Committee shall in no event perform such duty or exercise such
power in any manner which discriminates in favor of Highly Compensated
Employees. The Employers shall indemnify and hold harmless each member of the
Committee against any claim, cost, expense (including attorneys' fees), judgment
or liability (including any sum paid in settlement of a claim with the approval
of the Employers) arising out of any act or omission to act as a member of the
Committee appointed under this Plan, except in the case of willful misconduct.
Section 7.3 Rules, Records and Reports. The Committee may adopt such
rules and procedures for the administration of the Plan as are consistent with
the terms hereof, and shall keep adequate records of the Committee's proceedings
and acts and of the status of the Participants' Accounts. The Committee may
employ such agents, accountants and legal counsel (who may be agents,
accountants or legal counsel for an Employer) as may be appropriate for the
administration of the Plan. The Committee shall at least annually provide each
Participant with a report reflecting the status of his or her Accounts in the
Trust and shall cause such other information, documents or reports to be
prepared, provided and/or filed as may be necessary to comply with the
provisions of the Employee Retirement Income Security Act of 1974 or any other
law.
Section 7.4 Administration Expenses and Taxes. Unless otherwise paid by
the Employers in their absolute discretion, the Committee shall direct the
Trustee to pay all reasonable and necessary expenses (including the fees of
agents, accountants and legal counsel) incurred by the Committee in connection
with the administration of the Plan. Should any tax of any character (including
transfer taxes) be levied upon the Trust assets or the income therefrom, such
tax shall be paid from and charged against the assets of the Trust.
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ARTICLE VIII.
AMENDMENT AND TERMINATION
Section 8.1 Amendment. The Board of Directors of the Company shall have
the right and power at any time and from time to time to amend this Plan, in
whole or in part, on behalf of all Employers. Any such amendment made by the
Board of Directors of the Company shall be made by or pursuant to a resolution
duly adopted by the Board of Directors of the Company, and shall be evidenced by
such resolution or by a written instrument executed by such person as the Board
of Directors of the Company shall authorize for such purpose. With the consent
of the Board of Directors of the Company and subject to such procedure as it may
prescribe, the Board of Directors of each Employer shall have the right and
power at any time and from time to time to amend this Plan, in whole or in part,
with respect to the Plan's application to the Participants of the particular
amending Employer and the assets held in the Trust for their benefit, or to
transfer such assets or any portion thereof to a new trust for the benefit of
such Participants. However, in no event shall any amendment or new trust permit
any portion of the trust fund to be used for or diverted to any purpose other
than the exclusive benefit of the Participants and their beneficiaries, nor
shall any amendment or new trust reduce a Participant's Vested Interest under
the Plan.
Section 8.2 Termination. The Board of Directors of the Company shall
have the right and power at any time to terminate this Plan on behalf of all
Employers, or to terminate this Plan as it applies to the Participants who are
or were employees of any particular Employer, by giving written notice of such
termination to the Committee and Trustee. Any provision of this Plan to the
contrary notwithstanding, upon the termination or partial termination of the
Plan as to any Employer, or in the event any Employer should completely
discontinue making contributions to the Plan without formally terminating it,
all amounts credited to the Accounts of the affected Participants of that
particular Employer shall be fully vested.
Section 8.3 Benefit Plan Design Committee. Any action permitted to be
taken by the Board with respect to the amendment of this Plan may be taken by
the Benefit Plan Design Committee. The Benefit Plan Design Committee shall be
composed of at least two individuals appointed by the Board of Directors of the
Company. Each member of the Benefit Plan Design Committee so appointed shall
serve in such office until his or her death, resignation or removal by the
Board. The Board may remove any member of the Benefit Plan Design Committee at
any time by giving written notice thereof to the members of the Benefit Plan
Design Committee. Vacancies shall likewise be filled from time to time by the
Board. The Benefit Plan Design Committee shall act by a majority of its members
at the time in office and such action may be taken either by a vote at a meeting
or in writing without a meeting.
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ARTICLE IX.
TOP-HEAVY PROVISIONS
Section 9.1 Top-Heavy Definitions. Unless the context clearly indicates
otherwise, when used in this Article:
(a) "Top-Heavy Plan" means this Plan if, as of the
Determination Date, the aggregate of the Accounts of Key Employees
under the Plan exceeds 60% of the aggregate of the Accounts of all
Participants and former Participants under the Plan. The aggregate of
the Accounts of any Participant or former Participant shall include any
distributions (other than related rollovers or transfers from the Plan
within the meaning of regulations under Section 416(g) of the Code)
made from such individual's Accounts during the one-year period ending
on the Determination Date, but shall not include any unrelated
rollovers or transfers (within the meaning of regulations under Section
416(g) of the Code) made to such individual's Accounts after December
31, 1983; provided, however, that in the case of a distribution made
for a reason other than separation from service, death, or disability,
this provision shall be applied by substituting "five-year period" for
"one-year period". The Account of any Participant or former Participant
who (i) is not a Key Employee for the Plan Year in question but who was
a Key Employee in a prior Plan Year, or (ii) has not completed an Hour
of Service during the one-year period ending on the Determination Date,
shall not be taken into account. The determination of whether the Plan
is a Top-Heavy Plan shall be made after aggregating all other plans of
an Employer and any Affiliated Company qualifying under Section 401(a)
of the Code in which a Key Employee is a participant or which enables
such a plan to meet the requirements of Section 401(a)(4) or 410 of the
Code, and after aggregating any other plan of an Employer or Affiliated
Company, which is not already aggregated, if such aggregation group
would continue to meet the requirements of Sections 401(a)(4) and 410
of the Code and if such permissive aggregation thereby eliminates the
top-heavy status of any plan within such permissive aggregation group.
For purposes of determining the aggregate of the Accounts of any
Participant or former Participant, the distributions included, as
provided above, shall include distributions under a terminated plan
which, had it not been terminated, would have been aggregated with the
Plan under Section 416(g)(2)(A)(i) of the Code. The determination of
whether this Plan is a Top-Heavy Plan shall be made in accordance with
Section 416(g) of the Code.
(b) "Determination Date" means, for purposes of determining
whether the Plan is a Top-Heavy Plan for a particular Plan Year, the
last day of the preceding Plan Year.
(c) "Key Employee" means any Employee or former Employee
(including a beneficiary of such Employee or former Employee) who at
any time during the Plan Year that includes the Determination Date is:
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(1) an officer of an Employer having Compensation for
such Plan Year greater than $130,000 (as adjusted under
Section 416(i)(1) of the Code for Plan Years beginning after
December 31, 2002);
(2) a 5% owner of the Employer; or
(3) a 1% owner of the Employer having Compensation
for such Plan Year of more than $150,000.
The determination of who is a Key Employee will be made in accordance
with Section 416(i)(1) of the Code and the applicable regulations and
other guidance of general applicability issued thereunder.
(d) "Non-Key Employee" means any Employee or former Employee
(including a beneficiary of such Employee or former Employee) who is
not a Key Employee.
Section 9.2 Minimum Contribution Requirement. Any provision of this
Plan to the contrary notwithstanding, if the Plan is a Top-Heavy Plan for any
Plan Year, then the Employers will contribute to the Employer Account of each
Non-Key Employee who is both eligible to participate and in the employ of an
Employer on the last day of such Plan Year, an amount which, when added to the
total amount of Matching Contributions and forfeitures otherwise allocable under
the Plan to such Non-Key Employee for such year, shall equal the lesser of (i)
3% of such Non-Key Employee's Compensation for such year or (ii) the amount of
contributions (including Total Pre-Tax Contributions) and forfeitures (expressed
as a percentage of Compensation) allocable under the Plan for or on behalf of
the Key Employee for whom such percentage is the highest for the Plan Year after
taking into account contributions under other defined contribution plans
maintained by the Employer in which a Key Employee is a participant (as well as
any other plan of an Employer which enables such a plan to meet the requirements
of Section 401(a)(4) or 410 of the Code); provided, however, that no minimum
contribution shall be made for a Non-Key Employee under this Section for any
Plan Year if the Employer maintains another qualified plan under which a minimum
benefit or contribution is being accrued or made for such Plan Year for the
Non-Key Employee in accordance with Section 416(c) of the Code. A Non-Key
Employee who is not a Participant, but for whom a contribution is made pursuant
to this Section, shall be accorded all of the rights and privileges of a
Participant under the Plan except that no contributions (other than
contributions pursuant to this Section) shall be made for or on behalf of such
Non-Key Employee until he or she meets the eligibility and participation
requirements of Article II.
Section 9.3 Minimum Vesting Schedule. Any provision of this Plan to the
contrary notwithstanding, if the Plan is a Top-Heavy Plan for any Plan Year,
then effective as of the first day of such Plan Year with respect to
Participants who complete an Hour of Service on or after such day, the vesting
schedule provided in Section 5.2 shall be applied to that portion of such
Participants' Employer Account which is attributable to any amounts credited to
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his or her Employer Nonelective Contribution Account under the Superseded Plan
as in effect on September 30, 1997, as if to read as follows:
Period of Service
Completed by Participant Percentage Vested
------------------------ -----------------
Less than 3 years None
3 or more years 100%
ARTICLE X.
MISCELLANEOUS GENERAL PROVISIONS
Section 10.1 Spendthrift Provision. No right or interest of any
Participant or beneficiary under the Plan may be assigned, transferred or
alienated, in whole or in part, either directly or by operation of law, and no
such right or interest shall be liable for or subject to any debt, obligation or
liability of such Participant or beneficiary; provided, however, that nothing
herein shall prevent the payment of amounts from a Participant's Accounts under
the Plan in accordance with the terms of a court order which the Committee has
determined to be a qualified domestic relations order (as defined in Section
414(p) of the Code).
Section 10.2 Claims Procedure. If any person (hereinafter called the
"Claimant") feels that he or she is being denied a benefit to which he or she is
entitled under the Plan, such Claimant may file a written claim for said benefit
with any member of the Committee. Within 60 days of the receipt of such claim
the Committee shall determine and notify the Claimant as to whether he or she is
entitled to such benefit. Such notification shall be in writing and, if denying
the claim for benefit, shall set forth the specific reason or reasons for the
denial, make specific reference to the pertinent provisions of the Plan, and
advise the Claimant that he or she may, within 60 days of the receipt of such
notice, in writing request to appear before the Committee for a hearing to
review such denial. Any such hearing shall be scheduled at the mutual
convenience of the Committee or its designated representative and the Claimant,
and at such hearing the Claimant and/or his or her duly authorized
representative may examine any relevant documents and present evidence and
arguments to support the granting of the benefit being claimed. The final
decision of the Committee with respect to the claim being reviewed shall be made
within 60 days following the hearing thereon and the Committee shall in writing
notify the Claimant of its final decision, again specifying the reasons therefor
and the pertinent provisions of the Plan upon which such decision is based. The
final decision of the Committee shall be conclusive and binding upon all parties
having or claiming to have an interest in the matter being reviewed.
Section 10.3 Maximum Contribution Limitation. Any provision of this
Plan to the contrary notwithstanding (except to the extent permitted under
Section 3.3 of the Plan and Section 414(v) of the Code, if applicable), the sum
of (i) the Employer contributions, (ii) the forfeitures, and (iii) the
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Participant contributions (excluding rollover contributions and employee
contributions to a simplified employee pension allowable as a deduction, each
within the meaning specified in Section 415(c)(2) of the Code), allocated to a
Participant with respect to a Plan Year shall in no event exceed the lesser of
$40,000 (as adjusted for increases in the cost-of-living under Section 415(d) of
the Code) or 100% of such Participant's Compensation for that year. For the
purposes of applying the limitation imposed by this Section, each Employer and
its Affiliated Companies shall be considered a single employer, and all defined
contribution plans (meaning plans providing for individual accounts and for
benefits based solely upon the amounts contributed to such accounts and any
forfeitures, income, expenses, gains and losses allocated to such accounts)
described in Section 415(k) of the Code, whether or not terminated, maintained
by an Employer or its Affiliated Companies shall be considered a single plan. If
the total amount allocable to a Participant's Accounts for a particular Plan
Year would, but for this sentence, exceed the foregoing limitation, such
Participant's After-Tax Contributions shall first be distributed and then, to
the extent necessary, Total Pre-Tax Contributions shall be distributed first
from any Pre-Tax Bonus Contributions and then from Pre-Tax Contributions. Any
Matching Contributions corresponding to any distributed Pre-Tax Contributions
shall be credited to a suspense account and thereafter reallocated (prior to the
allocation of subsequent forfeitures and the making of any additional
contributions to the Plan) to reduce the earliest subsequent Matching
Contributions an Employer would otherwise be required to make to the Plan
pursuant to Section 3.2 for such year and the next succeeding Plan Year. No
adjustment shall be made to such suspense account to reflect income, profits and
losses, expenses or other transactions affecting the Plan. Any Pre-Tax
Contributions or Pre-Tax Bonus Contributions distributed to a Participant
pursuant to this Section shall not be taken into account in determining such
Participant's actual deferral percentage for purposes of Section 3.7.
Section 10.4 Employment Noncontractual. The establishment of this Plan
shall not enlarge or otherwise affect the terms of any Employee's employment
with an Employer and an Employer may terminate the employment of any Employee as
freely and with the same effect as if this Plan had not been adopted.
Section 10.5 Limitations on Responsibility. The Employers do not
guarantee or indemnify the Trust against any loss or depreciation of its assets
which may occur, nor guarantee the payment of any amount which may become
payable to a Participant or his or her beneficiaries pursuant to the provisions
of this Plan. All payments to Participants and their beneficiaries shall be made
by the Trustee at the direction of the Committee solely from the assets of the
Trust and the Employers shall have no legal obligation, responsibility or
liability for any such payments.
Section 10.6 Merger or Consolidation. In no event shall this Plan be
merged or consolidated into or with any other plan, nor shall any of its assets
or liabilities be transferred to any other plan, unless each Participant would
be entitled to receive a benefit if the plan in which he or she then
participates terminated immediately following such merger, consolidation or
transfer, which is equal to or greater than the benefit he or she would have
been entitled to receive if the Plan had been terminated immediately prior to
such merger, consolidation or transfer.
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Section 10.7 Applicable Law. This Plan shall be governed and construed
in accordance with the internal laws (and not the principles relating to
conflicts of laws) of the State of Texas except where superseded by federal law.
Section 10.8 USERRA Compliance. Notwithstanding any provision of this
Plan to the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Code.
IN WITNESS WHEREOF, this restatement has been executed as of this ____
day of December, 2001, to be effective as of January 1, 2002.
PIONEER NATURAL RESOURCES USA, INC.
By______________________________________________
Larry Paulsen, Vice President - Administration
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