<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 3, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNION TEXAS PETROLEUM HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0040040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1330 POST OAK BOULEVARD, HOUSTON, TEXAS 77056
(Address, including zip code, of Principal Executive Offices)
VIRGINIA INDONESIA COMPANY
EMPLOYEE THRIFT AND RETIREMENT PLAN
(Full title of the plan)
ALAN R. CRAIN, JR., ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
UNION TEXAS PETROLEUM HOLDINGS, INC.
1330 POST OAK BOULEVARD, HOUSTON, TEXAS 77056
(713) 623-6544
(Name, address, including zip code, and
telephone number, including area code of agent for service)
--------------------------
copy to:
PAUL DUSHA
VICO SERVICES, INC.
ONE HOUSTON CENTER
1221 MCKINNEY, SUITE 700
HOUSTON, TEXAS 77010
(713) 654-7404
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED (1) REGISTERED PER SHARE (2) PRICE (2) FEE
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
Common Stock, Par Value $.05 Per Share 45,000 $20.75 $933,750.00 $282.95
============================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933
(the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low
prices of a share of the Registrant's Common Stock for June 27, 1997 on
the New York Stock Exchange as reported in The Wall Street Journal on June
30, 1997.
================================================================================
<PAGE> 2
PART I
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This Registration Statement on Form S-8 hereby incorporates by
reference the contents of the following documents filed by Union Texas
Petroleum Holdings, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997; and
(c) The description of the Common Stock of the Company, $0.05 par
value per share (the "Common Stock") contained in the Registration Statement on
Form 8-A (File No. 1-9019) filed with the Commission on August 6, 1987, as
amended by Forms 8 filed with the Commission on September 16, 1987 (Amendment
No. 1), September 21, 1987 (Amendment No. 2), and September 24, 1987
(Amendment No. 3) pursuant to Section 12 of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents so incorporated by reference. Statements contained in the foregoing
documents incorporated by reference shall be deemed to be modified or
superseded hereby to the extent that statements contained in this Prospectus,
or in any subsequently filed documents that are amendments hereto or that are
incorporated herein by reference, shall modify or replace such statements.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, inter alia,
empowers a Delaware corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the
defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he
II-2
<PAGE> 3
reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent
jurisdiction otherwise provides) such person shall not have been adjudged
liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
The Company maintains policies insuring its and its subsidiaries' officers and
directors against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act.
Article VI of the Bylaws of the Company provides for indemnification
of the directors and officers of the Company to the full extent permitted by
law, as now in effect or later amended. In addition, the Bylaws provide for
indemnification against expenses incurred by a director or officer to be paid
by the Company at reasonable intervals in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Company. The
Bylaws further provide for a contractual cause of action on the part of
directors and officers of the Company for indemnification claims which have not
been paid by the Company.
Article VII of the Company's Restated Certificate of Incorporation
limits under certain circumstances the liability of the Company's directors for
a breach of their fiduciary duty as directors. It does not eliminate the
liability of a director (i) for a breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (relating to the
declaration of dividends and purchase or redemption of shares in violation of
the Delaware General Corporation Law) or (iv) for any transaction from which
the director derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
15.1 Independent Accountants' Awareness Letter.
23.1 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (included in signature page).
99.1 Virginia Indonesia Company Employee Thrift and Retirement Plan.
In addition, the registrant hereby undertakes to submit the Virginia
Indonesia Company Employee Thrift and Retirement Plan to the Internal Revenue
Service (the "IRS") in a timely manner and will make any and all changes as may
be required by the IRS in order to qualify the plan under Section 401 of the
Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
II-3
<PAGE> 4
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE> 5
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on the 1st day of
July, 1997.
UNION TEXAS PETROLEUM HOLDINGS, INC.
(Registrant)
By: /s/ Donald M. McMullan
----------------------------------
Name: Donald M. McMullan
Title: Vice President and Controller
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Union Texas Petroleum Holdings, Inc. (the "Company") hereby
constitutes and appoints Larry D. Kalmbach, Alan R. Crain, Jr. and Donald M.
McMullan and each or any one of them (with full power to each of them to act
alone), his true and lawful attorney-in- fact and agent, with full power of
substitution, for him and on his behalf and in his name, place and stead, in
any and all capacities, to sign, execute and file this Registration Statement
under the Securities Act of 1933, as amended, and any or all amendments
(including, without limitation, post-effective amendments), with all exhibits
and any and all documents required to be filed with respect thereto, with the
Securities and Exchange Commission or any regulatory authority, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises in order to effectuate the same, as fully to all
intents and purposes as he himself might or could do, if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on July 1, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ John L. Whitmire Chairman of the Board and Chief Executive
- ---------------------------------------- Officer (Principal Executive Officer)
John L. Whitmire
/s/ Larry D. Kalmbach Vice President and Chief Financial
- ---------------------------------------- Officer (Principal Financial Officer)
Larry D. Kalmbach
/s/ Donald M. McMullan Vice President and Controller
- ---------------------------------------- (Principal Accounting Officer)
Donald M. McMullan
/s/ Glenn A. Cox Director
- ----------------------------------------
Glenn A. Cox
/s/ Edward A. Gilhuly Director
- ----------------------------------------
Edward A. Gilhuly
/s/ James H. Greene, Jr. Director
- ----------------------------------------
James H. Greene, Jr.
</TABLE>
II-5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
/s/ Henry R. Kravis Director
- ----------------------------------------
Henry R. Kravis
/s/ Michael W. Michelson Director
- ----------------------------------------
Michael W. Michelson
/s/ Wylie Bernard Pieper Director
- ----------------------------------------
Wylie Bernard Pieper
/s/ Stanley P. Porter Director
- ----------------------------------------
Stanley P. Porter
/s/ George R. Roberts Director
- ----------------------------------------
George R. Roberts
/s/ Richard R. Shinn Director
- ----------------------------------------
Richard R. Shinn
/s/ Sellers Stough Director
- ----------------------------------------
Sellers Stough
</TABLE>
II-6
<PAGE> 7
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee (which administers the subject plan) has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on July 1, 1997.
Virginia Indonesia Company Employee Thrift and
Retirement Plan
By: /s/ Terry N. Quinn
------------------------------------------
Name: Terry N. Quinn
-----------------------------------------
Title: Vice President and CFO
----------------------------------------
II-7
<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER
- ------
15.1 Independent Accountants' Awareness Letter
23.1 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included in signature page).
99.1 Virginia Indonesia Company Employee Thrift and Retirement Plan.
<PAGE> 1
EXHIBIT 15.1
INDEPENDENT ACCOUNTANTS' AWARENESS LETTER
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Union Texas Petroleum Holdings, Inc. has incorporated by
reference our report dated April 22, 1997 (issued pursuant to the provisions of
Statement on Auditing Standards No. 71) in the Prospectus constituting part of
its Registration Statement on Form S-8 to be filed on or about July 3, 1997. We
are also aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
Price Waterhouse LLP
Houston, Texas
July 3, 1997
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-8 of our report dated
February 14, 1997 which appears on page 35 of Union Texas Petroleum Holdings,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1996.
Price Waterhouse LLP
Houston, Texas
July 3, 1997
<PAGE> 1
EXHIBIT 99.1
VIRGINIA INDONESIA COMPANY
EMPLOYEE THRIFT AND RETIREMENT PLAN
(EIGHTH AMENDMENT)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C>
SECTION I
INTRODUCTION . . . . . . . . . . . . . . I-1
SECTION 1.1 Purpose Of The Plan . . . . . . . . . . . . . . . . . . . . I-1
SECTION 1.2 Effect Of Amendment On The Plan . . . . . . . . . . . . . . I-1
SECTION II
DEFINITIONS AND CONSTRUCTION OF TERMS . . . . . . . . II-1
SECTION 2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . II-1
SECTION 2.2 Construction Of Terms . . . . . . . . . . . . . . . . . . . II-7
SECTION III
ELIGIBILITY AND PARTICIPATION . . . . . . . . . III-1
SECTION 3.1 Continued Participation . . . . . . . . . . . . . . . . . III-1
SECTION 3.2 Retirement Participation . . . . . . . . . . . . . . . . . III-1
SECTION 3.3 Matching Participation . . . . . . . . . . . . . . . . . . III-1
SECTION 3.4 Application For Matching Participation . . . . . . . . . . III-1
SECTION 3.5 Late Commencement Of Matching Participation . . . . . . . III-1
SECTION 3.6 Reemployment . . . . . . . . . . . . . . . . . . . . . . . III-2
SECTION 3.7 USERR Credit . . . . . . . . . . . . . . . . . . . . . . . III-2
SECTION IV
PARTICIPANT CONTRIBUTIONS . . . . . . . . . . . IV-1
SECTION 4.1 Participant Contributions . . . . . . . . . . . . . . . . . IV-1
SECTION 4.2 Change In Participant Contributions . . . . . . . . . . . . IV-1
SECTION 4.3 Suspension Of Participant Contributions . . . . . . . . . . IV-2
SECTION 4.4 Rollover Contributions . . . . . . . . . . . . . . . . . . . IV-3
SECTION V
EMPLOYER CONTRIBUTIONS AND PLAN EXPENSES . . . . . . . V-1
SECTION 5.1 Employer Contributions . . . . . . . . . . . . . . . . . . . V-1
SECTION 5.2 Application Of Forfeitures . . . . . . . . . . . . . . . . . V-2
SECTION 5.3 Payment Of Employer Contributions . . . . . . . . . . . . . V-2
SECTION 5.4 Contributions By Affiliated Employer . . . . . . . . . . . . V-3
SECTION 5.5 Expenses Of Plan And Trust . . . . . . . . . . . . . . . . . V-3
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION VI
LIMITS ON BENEFITS AND TOP-HEAVY RULES . . . . . . . VI-1
SECTION 6.1 Applicability Of Section . . . . . . . . . . . . . . . . . . VI-1
SECTION 6.2 Code Section 415 Limits . . . . . . . . . . . . . . . . . . VI-1
SECTION 6.3 Top Heavy Provisions . . . . . . . . . . . . . . . . . . . . VI-4
SECTION VII
ACCOUNTS . . . . . . . . . . . . . . VII-1
SECTION 7.1 Participant Basic Accounts . . . . . . . . . . . . . . . . VII-1
SECTION 7.2 Participant Excess Accounts . . . . . . . . . . . . . . . VII-1
SECTION 7.3 Participant After-Tax Accounts . . . . . . . . . . . . . . VII-1
SECTION 7.4 401(k) Accounts . . . . . . . . . . . . . . . . . . . . . VII-1
SECTION 7.5 Employer Accounts . . . . . . . . . . . . . . . . . . . . VII-1
SECTION 7.6 Rollover Accounts . . . . . . . . . . . . . . . . . . . . VII-2
SECTION 7.7 Huffco Account . . . . . . . . . . . . . . . . . . . . . . VII-2
SECTION 7.8 Account Information . . . . . . . . . . . . . . . . . . . VII-2
SECTION VIII
INVESTMENT OF ACCOUNTS . . . . . . . . . . VIII-1
SECTION 8.1 Investment Funds . . . . . . . . . . . . . . . . . . . . . VIII-1
SECTION 8.2 Investment Options . . . . . . . . . . . . . . . . . . . . VIII-1
SECTION 8.3 Change in Investment Direction . . . . . . . . . . . . . . VIII-1
SECTION IX
ACCOUNT BALANCES . . . . . . . . . . . . . IX-1
SECTION 9.1 Crediting Of Contributions . . . . . . . . . . . . . . . . . IX-1
SECTION 9.2 Calculation Of Mutual Fund Account Balances . . . . . . . . IX-1
SECTION 9.3 Calculation Of Nonmutual Fund Account Balances . . . . . . . IX-2
SECTION X
VESTING OF ACCOUNTS . . . . . . . . . . . . X-1
SECTION 10.1 Participant Accounts . . . . . . . . . . . . . . . . . . . . X-1
SECTION 10.2 Employer Account . . . . . . . . . . . . . . . . . . . . . . X-1
SECTION 10.3 Termination Of Plan Or Employer Contributions . . . . . . . X-2
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION XI
WITHDRAWALS AND LOANS . . . . . . . . . . . . XI-1
SECTION 11.1 Excess and Huffco Account Withdrawals . . . . . . . . . . . XI-1
SECTION 11.2 Basic Account Withdrawals . . . . . . . . . . . . . . . . . XI-1
SECTION 11.3 Terminated Participant Withdrawals . . . . . . . . . . . . . XI-2
SECTION 11.4 Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . XI-2
SECTION 11.5 Age 59 1/2 Withdrawals . . . . . . . . . . . . . . . . . . . XI-4
SECTION 11.6 Rollover Account Withdrawals . . . . . . . . . . . . . . . . XI-4
SECTION 11.7 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . XI-5
SECTION 11.8 Withdrawals Among Investment Funds . . . . . . . . . . . . . XI-7
SECTION XII
DISTRIBUTIONS . . . . . . . . . . . . . XII-1
SECTION 12.1 Time Of Distribution . . . . . . . . . . . . . . . . . . . XII-1
SECTION 12.2 Method Of Distribution . . . . . . . . . . . . . . . . . . XII-1
SECTION 12.3 Forfeitures . . . . . . . . . . . . . . . . . . . . . . . XII-1
SECTION 12.4 Election Of Installment Distribution . . . . . . . . . . . XII-2
SECTION 12.5 Direct Rollover Distributions . . . . . . . . . . . . . . XII-3
SECTION 12.6 30-Day Waiver . . . . . . . . . . . . . . . . . . . . . . XII-4
SECTION XIII
BENEFICIARIES AND SPECIAL PAYMENT PROVISIONS . . . . . XIII-1
SECTION 13.1 Designation Of Beneficiaries . . . . . . . . . . . . . . . XIII-1
SECTION 13.2 Payments To Minors And Incompetents . . . . . . . . . . . XIII-2
SECTION 13.3 Non-Assignability Of Rights . . . . . . . . . . . . . . . XIII-2
SECTION XIV
MANAGEMENT OF THE TRUST FUND . . . . . . . . . XIV-1
SECTION 14.1 Trust Agreement . . . . . . . . . . . . . . . . . . . . . XIV-1
SECTION 14.2 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . XIV-1
SECTION 14.3 Trust Assets For Exclusive Benefit Of Participants . . . . XIV-1
SECTION XV
PLAN ADMINISTRATION . . . . . . . . . . . . XV-1
SECTION 15.1 Administrative Committee . . . . . . . . . . . . . . . . . . XV-1
SECTION 15.2 Chairman, Secretary And Subcommittees . . . . . . . . . . . XV-1
SECTION 15.3 Meetings And Majority Vote . . . . . . . . . . . . . . . . . XV-2
SECTION 15.4 No Bond Required Or Compensation To Be Paid . . . . . . . . XV-2
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 15.5 General Powers And Duties . . . . . . . . . . . . . . . . . XV-2
SECTION 15.6 Appointment And Allocation . . . . . . . . . . . . . . . . . XV-3
SECTION 15.7 Claims For Benefits . . . . . . . . . . . . . . . . . . . . XV-3
SECTION 15.8 Maintenance Of Accounts And Reports . . . . . . . . . . . . XV-4
SECTION 15.9 Information To Be Furnished . . . . . . . . . . . . . . . . XV-4
SECTION 15.10 Reliance On Data And Opinions . . . . . . . . . . . . . . . XV-4
SECTION 15.11 Action Non-Discriminatory . . . . . . . . . . . . . . . . . XV-5
SECTION 15.12 Liability Of And Indemnity To Members . . . . . . . . . . . XV-5
SECTION 15.13 Investment Manager . . . . . . . . . . . . . . . . . . . . . XV-5
SECTION XVI
PARTICIPATION BY AFFILIATES . . . . . . . . . XVI-1
SECTION 16.1 Adoption Of Plan . . . . . . . . . . . . . . . . . . . . . XVI-1
SECTION 16.2 Withdrawal From Plan . . . . . . . . . . . . . . . . . . . XVI-1
SECTION 16.3 Termination Of Employer Participation By Company . . . . . XVI-2
SECTION XVII
AMENDMENT AND TERMINATION . . . . . . . . . . XVII-1
SECTION 17.1 Right To Amend Or Terminate . . . . . . . . . . . . . . . XVII-1
SECTION 17.2 Restrictions On Amendment . . . . . . . . . . . . . . . . XVII-1
SECTION 17.3 Effect Of Dissolution, Or Employer Merger . . . . . . . . XVII-2
SECTION 17.4 Effect Of Plan Merger, Consolidation Or Transfer Of Assets XVII-2
SECTION 17.5 Expiration Of Trust Term . . . . . . . . . . . . . . . . . XVII-2
SECTION 17.6 Distribution Upon Termination Of Plan . . . . . . . . . . XVII-3
SECTION XVIII
GENERAL PROVISIONS . . . . . . . . . . XVIII-1
SECTION 18.1 Employer's Rights . . . . . . . . . . . . . . . . . . . XVIII-1
SECTION 18.2 Notice Of Address . . . . . . . . . . . . . . . . . . . XVIII-1
SECTION 18.3 Copies Of Plan Available . . . . . . . . . . . . . . . . XVIII-1
SECTION 18.4 Titles And Headings . . . . . . . . . . . . . . . . . . XVIII-1
SECTION 18.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . XVIII-2
SECTION 18.6 Applicable Law . . . . . . . . . . . . . . . . . . . . . XVIII-2
SECTION 18.7 Unclaimed Benefits . . . . . . . . . . . . . . . . . . . XVIII-2
SECTION XIX
ANTIDISCRIMINATION TESTS . . . . . . . . . . XIX-1
SECTION 19.1 Special Definitions . . . . . . . . . . . . . . . . . . . XIX-1
SECTION 19.2 Salary Reduction Contributions . . . . . . . . . . . . . . XIX-3
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 19.3 Actual Deferral Percentage . . . . . . . . . . . . . . . . XIX-4
SECTION 19.4 Actual Deferral Percentage Test . . . . . . . . . . . . . XIX-5
SECTION 19.5 Adjustments as a Result of Actual Deferral Percentage Test XIX-6
SECTION 19.6 Maximum Contribution Percentage . . . . . . . . . . . . . XIX-7
SECTION 19.7 Adjustments for Excessive Contribution Percentage . . . . XIX-9
</TABLE>
v
<PAGE> 7
VIRGINIA INDONESIA COMPANY
EMPLOYEE THRIFT AND RETIREMENT PLAN
VIRGINIA INDONESIA COMPANY, a corporation organized under the
laws of the State of Delaware, hereby amends and restates the "Virginia
Indonesia Company Employee Thrift and Retirement Plan" effective as of July 1,
1997, except as otherwise provided. The terms, provisions and conditions of
the Plan, as hereby amended and restated, are as follows:
SECTION I
INTRODUCTION
1.1 Purpose Of The Plan. The purpose of this Plan is to
promote and encourage Employees to provide security and income for their future
through a systematic savings program with Employer matching contributions and
to provide additional retirement benefits for the Employees through Employer
nonmatching contributions. This Plan has been adopted for the exclusive
benefit of the Participants and their Beneficiaries. So far as possible, this
Plan shall be interpreted in a manner consistent with this intent and with the
intention of the Employer that this Plan shall satisfy those provisions of
ERISA and the Code relating to qualified profit sharing plans with a 401(k)
feature.
1.2 Effect Of Amendment On The Plan. The Plan is hereby
amended and completely restated as set forth herein and all rights and benefits
under the Plan shall hereafter be determined under the terms and provisions
hereof; however, the amendment and restatement of the Plan hereby shall not
operate or be construed to deprive any Participant of any protected benefit,
within the meaning of Code Section 411(d)(6) and the regulations thereunder,
such Participant may
I-1
<PAGE> 8
have had under the Plan as in effect immediately prior to this amendment.
Further, this amendment and restatement shall not operate or be construed to
confer on or provide for any former Participant whose employment terminated for
any reason prior to the effective date of this restatement any additional
different rights or benefits than those to which he may have been entitled
under the Plan as in effect at the time his employment terminated, except as
otherwise specifically provided herein or required by law.
I-2
<PAGE> 9
SECTION II
DEFINITIONS AND CONSTRUCTION OF TERMS
2.1 Definitions. For purposes of the Plan, the following
words and phrases shall have the meanings stated below unless a different
meaning is clearly required by the context or otherwise specified in the
instruments executed by an Affiliate in adopting the Plan and the Trust
Agreement pursuant to Section XVI:
(a) Account means an Employer Account, Participant Basic
Account, Participant Excess Account, Participant After-Tax Account,
401(k) Account, Huffco Account, and/or Rollover Account, as the context
requires.
(b) After-Tax Contribution means a Participant contribution to
the Plan that is made on an after-tax basis, i.e., it is not a 401(k)
Contribution.
(c) Affiliate means any corporation which is a member of a
controlled group of corporations or affiliated service group with an
Employer or any trade or business under common control with any Employer
as determined under Code Sections 414(b), (m) and (c), respectively, or
as provided by regulations under Code Section 414(o). For purposes of
Section VI only, determinations shall be made in accordance with Code
Section 415(h).
(d) Basic Compensation means, with respect to a Participant,
effective as of January 1, 1997 the total nondeferred basic compensation
(base salary) paid to such Participant for services rendered to the
Employer during the applicable payroll period(s), and shall include any
elective salary reduction amounts made by an Employer on behalf of the
Participant that are excluded from the Participant's taxable gross
income pursuant to Code Sections 125 or 402(g). However, in no event
shall a Participant's annual compensation
II-1
<PAGE> 10
considered for Plan purposes exceed $160,000, as adjusted pursuant to
Code Sections 401(a)(17) and/or 415(d), and determined in accordance
with the family aggregation rules of Code Section 414(q)(6).
(e) Beneficiary means the person designated by a Participant
or the Plan pursuant to Section 13.1 to receive any amounts payable
under the Plan upon the Participant's death.
(f) Board means the Board of Directors of the Company.
(g) Code means the Federal Internal Revenue Code of 1986, as
amended from time to time, and any subsequently adopted Federal Internal
Revenue Code. References in the Plan to sections of the Code shall
include corresponding sections in any subsequently adopted Federal
Internal Revenue Code.
(h) Committee means the persons appointed to manage and
administer the Plan in accordance with the provisions of Section XV.
(i) Company means Virginia Indonesia Company, a Delaware
corporation, and any successor-in-interest to such corporation.
(j) Current Balance means the amount credited to an Account as
of a Valuation Date, as determined in accordance with the provisions of
Section IX.
(k) Eligible Class means, with respect to an Employee, that
(1) such Employee is employed by an Employer on the
Employer's U. S. payroll; and
(2) such Employee is not (i) a member of or represented
by a recognized collective bargaining unit whose bargaining
agreement with the Employer does not provide for such Employee's
participation in the Plan, (ii) a "leased employee", within the
meaning of Code Section 414(n), or (iii) an individual treated by
the Employer as being an independent contractor.
II-2
<PAGE> 11
(l) Employee means any individual who is a common law employee
of an Employer or Affiliate, including a "leased employee" within the
meaning of Code Section 414(n), unless the corresponding Federal
regulations provide otherwise.
(m) Employer means the Company, VICO Services, Inc. and/or any
other Affiliate which has adopted and is participating in the Plan
pursuant to Section XVI.
(n) Employer Account means an Account described in Section
7.5.
(o) Entry Date means January 1, April 1, July 1 and October 1.
(p) ERISA means Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended from time to time.
(q) 401(k) Contribution means a Participant elective
contribution which is treated as having been made on a before-tax basis
under Code Section 401(k).
(r) 401(k) Account means an Account described in Section 7.4.
(s) Hour of Service means each hour for which an Employee is
paid, or entitled to payment, by an Employer or an Affiliate by reason
of the performance of duties.
(t) Huffco Account means an Account described in Section 7.7.
(u) Investment Fund means an investment fund maintained under
the Trust for holding the investments of Accounts under the Plan.
(v) Leave of Absence means a temporary absence from service
due to sickness, accident, or any other temporary absence authorized by
the Employer or Affiliate on a nondiscriminatory basis to Employees
similarly situated.
(w) Participant Basic Account means an Account described in
Section 7.1.
(x) Participant Excess Account means an Account described in
Section 7.2.
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<PAGE> 12
(y) Participant means an individual who has an Account under
the Plan.
(z) Participant After-Tax Account means an Account described
in Section 7.3.
(aa) Period of Service means, with respect to an Employee, the
period of employment commencing on the date the Employee first completes
an Hour of Service (or following a Period of Severance, again completes
an Hour of Service) and ending on the Employee's Severance From Service
Date.
If an Employee terminates his employment by reason of quitting,
discharge or retirement and thereafter completes an Hour of Service
within 12 months of his Severance From Service Date, the period
beginning with such Severance From Service Date through his reemployment
date shall be credited as a Period of Service.
Except as provided below, all Periods of Service shall be
aggregated (365 days shall be deemed to be a Year of Service). If the
Period of Severance of a former Employee who is not vested in his
Employer Account (and did not have a 401(k) Account) equals or exceeds
the greater of (i) his Period of Service at such time or (ii) 60 months,
the former Employee's Period of Service completed prior to such Period
of Severance shall be forfeited. If a former Employee's Period of
Service as of December 31, 1984 had been forfeited under the Plan's then
service forfeiture rules, such Period of Service shall not be restored
upon any subsequent reemployment.
If an Employee is absent from work for maternity or paternity
reasons, the 12-month period following the date such absence began shall
be treated as a Period of Service, the second 12-month period of such
absence shall not be deemed a Period of Service or a Period of
Severance, and the Severance From Service Date for such Employee shall
be the second
II-4
<PAGE> 13
anniversary of the date such maternity/paternity absence began. A
maternity or paternity absence for this purpose is an absence (1) by
reason of the pregnancy of the individual, (2) by reason of the birth of
a child of the individual, (3) by reason of the placement of a child
with the individual in connection with the adoption of such child by
such individual or (4) for purposes of caring for such child for a
period beginning immediately following such birth or adoption.
If an individual was an employee of the Company's owners, Union
Texas Petroleum Holdings, Inc. or LASMO plc, or any of their respective
subsidiaries (individually, an "Owner", and collectively, the "Owners"),
immediately prior to becoming an Employee, or during the 12-month period
prior to becoming an Employee was an employee of an Owner and not
employed by any other employer subsequent to his last date of employment
with the Owners, such individual shall be credited with his Period of
Service with the Owners, not exceeding five Years of Service, determined
in accordance with the above provisions as if the Owner were an
Affiliate.
(bb) Period of Severance means, with respect to an Employee,
the period commencing on his Severance From Service Date and ending on
the date he again completes an Hour of Service.
(cc) Plan means the "Virginia Indonesia Company Employee Thrift
and Retirement Plan" as set forth herein and as hereafter amended.
(dd) Plan Year means the calendar year, which shall also be the
limitation year for purposes of Code Section 415.
II-5
<PAGE> 14
(ee) Retirement means, with respect to a Participant,
termination of employment from the Company and its Affiliates on or
after reaching age 65.
(ff) Severance From Service Date means, with respect to an
Employee, the earlier of (i) the date on which an Employee quits,
retires, is discharged or dies or (ii) the first anniversary of the
beginning date of a period in which the Employee remains absent from
service for any reason other than quitting, retirement, discharge or
death, subject to the special maternity/paternity rules set forth under
the definition of a Period of Service.
(gg) Trust means the trust established by the agreement entered
into between the Company and the Trustee, which provides for the
receiving, holding, investing and disbursing of the funds of the Plan.
(hh) Trustee means such corporation(s) and/or individual(s) as
may from time to time be designated by the Company to serve as Trustee
of the Trust, whether one or more.
(ii) Valuation Date means each business day on which the assets
of the Trust are to be valued. For purposes of crediting/debiting
contributions, transfers between Investment Funds and effecting
withdrawals/distributions and loans from Investment Funds under the
Plan, the value of the units of the applicable mutual fund or the shares
of stock in the UTP Stock Fund and LASMO Stock Fund as of the actual
date of such transaction shall be used for such Plan purposes. In the
event of any significant increase or decrease in the value of a fund
that is not valued daily, the Committee shall establish a special
Valuation Date for such fund if, in the opinion of the Committee, it is
necessary to protect the Participants and Beneficiaries in such fund and
thereafter such special Valuation Date shall be used for distributions
and withdrawals paid after that date.
II-6
<PAGE> 15
(jj) Year of Service means a Period of Service of 365 days.
2.2 Construction Of Terms. Whenever appropriate herein, words
used in the singular shall be construed to include the plural and the plural to
include the singular.
II-7
<PAGE> 16
SECTION III
ELIGIBILITY AND PARTICIPATION
3.1 Continued Participation. Each Employee who was a
Participant in the Plan immediately prior to this amendment and restatement
shall continue without interruption as a Participant in the Plan upon the
amendment and restatement of the Plan hereby.
3.2 Retirement Participation. Each Employee automatically
shall become a Participant, with respect to the Employer's retirement
contributions made pursuant to Section 5.1(b), on the date such Employee first
becomes (or again becomes) a part of the Eligible Class.
3.3 Matching Participation. Each Employee shall be eligible
to make 401(k) Contributions and/or After-Tax Contributions to the Plan, and
receive Employer matching contributions made with respect thereto pursuant to
Section 5.1(a), on the first Entry Date on which such Employee is in the
Eligible Class by filing the appropriate election form in accordance with
Section 3.4.
3.4 Application For Matching Participation. Each eligible
Employee desiring to make contributions to the Plan must file a contribution
election form with the Employer at least five days prior to the Entry Date on
which such Employee's contributions are to commence, unless waived by the
Committee. Each election to contribute shall be in such form and shall contain
such information as the Committee shall deem necessary or desirable in the
operation and administration of the Plan.
3.5 Late Commencement Of Matching Participation. An Employee
need not commence making contributions to the Plan on the date such Employee
first becomes eligible to do so but may commence making contributions to the
Plan on any subsequent Entry Date (assuming
III-1
<PAGE> 17
such Employee then meets the eligibility requirements of Section 3.3) by filing
the appropriate election form in accordance with Section 3.4 at least five days
prior to the Entry Date on which such Employee's contributions are to commence,
unless waived by the Committee.
3.6 Reemployment. A former Employee shall become a
Participant in the Plan on such individual's reemployment date provided such
individual is in the Eligible Class and may elect to contribute to the Plan by
filing an election form in accordance with Section 3.4 within five days of such
individual's reemployment date. Each other former Employee shall be eligible
to participate as provided in Sections 3.2 and 3.3.
3.7 USERR Credit. 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 Code Section
414(u).
III-2
<PAGE> 18
SECTION IV
PARTICIPANT CONTRIBUTIONS
4.1 Participant Contributions. Subject to the further
provisions of the Plan, each Participant may make a 401(k) Contribution and/or
After-Tax Contribution to the Plan by payroll reduction/deduction for each
payroll period during which such Participant is in the Eligible Class in an
amount equal to 2% to 14% (in whole percentages) of such Participant's Basic
Compensation for such payroll period, as specified by the Participant in such
Participant's contribution election; provided, however, the aggregate amount of
a Participant's total contributions (both 401(k) and After-Tax) cannot exceed
14% of such Participant's Basic Compensation; and provided further, the maximum
401(k) contribution for any payroll period shall be the 401(k) dollar amount
for such Plan Year provided by Code Section 402(g), as adjusted. If the
aggregate amount of both types of contributions elected by a Participant
exceeds 14%, the Participant's After-Tax Contributions shall be reduced as
necessary so that the Participant's aggregate contributions do not exceed 14%.
The Employer shall pay over to the Trustee the Participant contributions for a
payroll period no later than one business day following the end of such payroll
period.
4.2 Change In Participant Contributions. Within the
limitations of Section 4.1, a Participant may increase or decrease the
designated percentage of such Participant's 401(k) Contributions and/or After-
Tax Contributions to be contributed to the Plan effective as of the next Entry
Date by notifying the Employer in writing at least five days prior to such
date, unless waived by the Committee, on a form provided by the Plan. Unless
changed in accordance with the terms of this Plan, the percentage designated by
a Participant (and the type of contribution) shall continue in effect,
notwithstanding any change in such Participant's Basic Compensation and the
amount of
IV-1
<PAGE> 19
such Participant's future contributions automatically shall be adjusted to
reflect changes in such Participant's Basic Compensation.
Unless the Committee provides for a shorter period, a Participant
may change the designated percentage of such Participant's 401(k) Contributions
and/or After-Tax Contributions effective as of January 1 by notifying the
Employer in writing on a form provided by the Plan not later than January 10th;
provided in all events the election must be made prior to the end of the
payroll period beginning January 1.
4.3 Suspension Of Participant Contributions. A Participant
may suspend all (but not less than all) of such Participant's 401(k)
Contributions and/or After-Tax Contributions effective as of the first day of
any future payroll period by giving written notice of such suspension to his
Employer on a Plan form at least five days prior to the date on which such
suspension is to become effective, unless such requirement is otherwise waived
by the Committee. A Participant who has voluntarily suspended all of such
Participant's 401(k) Contributions and/or all of such Participant's After-Tax
Contributions pursuant to this Section 4.3 may, if such Participant is still in
the Eligible Class, resume making that type of contributions to the Plan as of
any Entry Date that is at least six months after the date of such suspension by
giving written notice of such resumption to the Employer on a Plan form at
least five days prior to the Entry Date on which such resumption of
contributions is to become effective, unless such requirement is otherwise
waived by the Committee.
A Participant's contributions shall be automatically suspended
whenever such Participant is not in the Eligible Class, or such Participant
makes a hardship withdrawal pursuant to Section 11.4, or such Participant
reaches, to the extent applicable, any statutory limit such as the limits
imposed under Code Sections 415 and 402(g). In addition, a Participant's
contributions shall
IV-2
<PAGE> 20
be suspended upon a withdrawal pursuant to Section 11.1 or 11.2 as provided
therein. Contributions suspended under the Plan, regardless of the reason,
shall not be resumed automatically after the cause for such suspension ceases
to exist or, if applicable, the Plan-imposed period of suspension expires; the
Participant must file a new contribution form in accordance with Section 3.4.
4.4 Rollover Contributions. A Participant may make a rollover
contribution (direct or indirect), by check or wire transfer, of a taxable
distribution received from any other qualified plan provided that such rollover
meets the requirements of the Code concerning eligibility for qualified
rollover treatment and the Participant completes the administrative forms
necessary to effectuate the rollover as determined by the Committee.
IV-3
<PAGE> 21
SECTION V
EMPLOYER CONTRIBUTIONS AND PLAN EXPENSES
5.1 Employer Contributions. Subject to the further provisions
of the Plan, the Employers shall contribute to the Plan:
(a) after the end of each month, on behalf of each Participant
who made 401(k) and/or After-Tax Contributions to the Plan that month,
an amount equal to 100% of such Participant's aggregate contributions
made that month which do not exceed 6% of such Participant's Basic
Compensation for such month; provided, however, that 50% of such match
(the "Employer Stock Match") must be directed to be invested in either
the UTP Stock Fund and/or LASMO Stock Fund (as such funds are defined in
the prospectus for the Plan) by the Participant and in the absence of
such direction, such Employer Stock Match shall be automatically
invested equally in the UTP Stock Fund and LASMO Stock Fund;
(b) on behalf of all Participants who are eligible to receive
an allocation to their Accounts in accordance with the provisions of
Section 9.1(c), such amount, if any, as is authorized by the Board for
such Plan Year; and
(c) each person who (i) is in the Eligible Class and a
Participant on July 31, 1997, and (ii) contributed to the Plan during
the period January 1, 1997 through July 31, 1997 (the "Retro Period")
shall receive on or as soon as reasonably practicable after July 31,
1997 a one-time additional Employer matching contribution (the "Special
Match") equal to 50% of the Participant's elective contribution
percentage (401(k) and After-Tax Contributions made to the Plan with
respect to the Retro Period, but not in excess of 6% of the
Participant's aggregate Basic Compensation for such period. The Special
Match shall be invested in the
V-1
<PAGE> 22
UTP Stock Fund and/or LASMO Stock Fund, as directed by the Participant
and absent such direction, equally in each such fund;
provided, however, the total of the Employer contributions under the Plan for a
Plan Year shall not exceed the maximum amount deductible from the Employer's
income for such year under Section 404 of the Code. Notwithstanding the
foregoing, the Employer shall make a minimum contribution to the Plan in
respect of any Plan Year wherein the available forfeitures are insufficient to
restore the Accounts of any reinstated Participants or to restore any amounts
forfeited under the unclaimed benefits provisions of the Plan.
In the absence of Employer profits, the Board may authorize an
Employer contribution for a Plan Year as permitted by Code Section 401(a)(27),
provided the Plan continues to be a profit sharing plan.
5.2 Application Of Forfeitures. As of the last Valuation Date
in a Plan Year, the total amount (determined on the basis of current market
values as of such Valuation Date) of all forfeitures which have occurred during
such Plan Year will be applied first to reinstate any forfeitures as provided
for in Sections 12. 3 and 18.7 of the Plan, and any remaining amounts shall be
used to reduce Employer retirement contributions otherwise to be made for such
Plan Year.
5.3 Payment Of Employer Contributions. Employer matching
contributions due with respect to any month shall be made in cash (by check) or
by wire transfer and be paid over to the Trustee as soon as reasonably
practicable following such month. Employer retirement contributions for a Plan
Year shall be made in cash (by check) or by wire transfer and be paid over to
the Trustee on or before the date prescribed by the Code for filing of the
Employer's federal income tax return for the taxable year (or such later date
as may be the extended date for filing the
V-2
<PAGE> 23
federal income tax return of the Employer for such taxable year) coinciding
with the end of such Plan Year.
5.4 Contributions By Affiliated Employer. If any Employer
which is part of an affiliated group, as defined in Code Section 1504, is
prevented from making a contribution which it would otherwise have made under
the Plan by reason of having no profits, then so much of the contribution which
such Employer was so prevented from making may be made, for the benefit of the
Employees of such Employer, by the other affiliated participating Employer(s)
in accordance with the provisions of Code Section 404(a)(3)(B).
5.5 Expenses Of Plan And Trust. Except as provided below, all
expenses reasonably incurred in connection with the administration of the Plan
and Trust, including, without limitation, bonding costs, attorneys' fees,
recordkeeping and accounting fees and charges and the fees of the Trustee,
shall be billed separately to and be paid by the Employer.
The direct expenses of each Investment Fund, including, without
limitation, the fees of an Investment Manager, and taxes and governmental
assessments of any and all kinds levied or assessed upon or in respect of any
money, securities or other property forming a part of or any earnings or income
of the fund, and commissions or related expenses, shall be a charge against and
be paid out of the assets of that Investment Fund by the Trustee, unless
voluntarily paid by the Employer; provided, however, the Employer will pay all
brokerage fees incurred with respect to the UTP Stock Fund and the LASMO Stock
Fund.
V-3
<PAGE> 24
SECTION VI
LIMITS ON BENEFITS AND TOP-HEAVY RULES
6.1 Applicability Of Section. This Section VI shall supersede
and control any other provision of the Plan which may be found to be in
conflict herewith.
6.2 Code Section 415 Limits. Notwithstanding any provision of
the Plan to the contrary, in no event shall the annual addition to the Plan
with respect to a Participant for a Plan Year exceed the lesser of:
(a) $30,000.00 (or, if greater, 1/4 of the dollar limitation
in effect under Code Section 415(b)(1)(A)), subject to cost of living
adjustments as provided in Code Section 415(e); or
(b) 25% of the Participant's compensation (as defined below)
for such Plan Year.
Annual addition means the sum for any Plan Year of (1) Employer contributions;
(2) the Participant's contributions; (3) forfeitures allocated to such
Participant's accounts in a defined contribution plan of an Employer; and (4)
certain benefits described in Code Sections 415(l) and 419(e).
"Compensation" means, for purposes of this Section VI,
compensation as defined in Treas. Reg. Section 1.415-2(d); i.e., the total
compensation actually paid to an Employee (or includable in gross income) for
services rendered to the Employer during the applicable Plan Year, but
excluding the following:
(i) Employer contributions to a plan of deferred compensation
to the extent contributions are not included in gross income of the
Employee for the taxable year in which contributed, or on behalf of an
Employee to a Simplified Employee Pension Plan to the extent such
contributions are deductible under Code Section 219, and any
distributions from a plan of deferred compensation whether or not
includable in the gross income of the Employee when distributed;
VI-1
<PAGE> 25
(ii) Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock or property held by an Employee
becomes freely transferable or is no longer subject to a substantial
risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(iv) Other amounts which receive special tax benefits, or
contributions made by an Employer (whether or not under a salary
reduction agreement) towards the purchase of a 403(b) annuity contract
(whether or not the contributions are excludable from the gross income
of the Employee).
However, for top-heavy purposes, it shall also include any elective salary
reductions excluded from income under Code Sections 125 or 402(g). In the
event that a Participant in this Plan is also a Participant in a defined
benefit plan maintained by an Employer or Affiliate, the sum of the defined
benefit fraction and the defined contribution fraction for any Plan Year may
not exceed 1.0; however, if the initial sum exceeds 1.0, then the annual
additions to the Plan shall be reduced as necessary to meet such fraction. The
defined contribution fraction for any Plan Year is (1) divided by (2), where:
(1) is the sum of the actual annual additions to the Participant's Accounts at
the close of the Plan Year, and (2) is the sum of the lesser of the following
amounts determined for such year and for each prior Year of Service of the
Employee: (a) 1.25 times the dollar limitation in effect for each such year
(without regard to the special dollar limitations for employee stock ownership
plans), or (b) 1.4 times 25% of the Participant's compensation for each year.
The defined benefit plan fraction for any Plan Year is (1) divided by (2),
where: (1) is the projected annual benefit of the Participant under the Plan
(determined as of the close of the Plan Year), and (2) is the lesser of (a)
1.25 times the dollar limitation (adjusted, if necessary) for such year, or (b)
1.4 times 100% of the Participant's average compensation for the high 3 years
(adjusted, if necessary). For the purposes of applying the foregoing
limitations, all defined benefit plans and all defined contribution
VI-2
<PAGE> 26
plans, whether or not terminated, of an Employer or Affiliate are to be treated
as one defined benefit plan and one defined contribution plan, respectively.
If in any Plan Year the annual additions exceed the maximum
amount that may be allocated to a Participant due to a reasonable estimate of
compensation, a reasonable error in determining the amount of 401(k)
Contributions that may be made under the limits of Code Section 415, or the
allocation of forfeitures, or under other facts and circumstances that the
Commissioner finds to justify a correction, then to the extent necessary to
"cure" the Section 415 violation, the following steps shall be taken until the
violation is "cured": (1) first, the Participant's unmatched After-Tax
Contributions shall be returned to such Participant with any earnings
attributable thereto, (2) second, the Participant's unmatched 401(k)
Contributions shall be returned to such Participant with, for distributions
made after 1995, any earnings attributable thereto, and (3) third, if an excess
annual addition continues to remain after such "cures", the forfeitures and
Employer retirement contribution, to the extent necessary, shall be held
unallocated in a suspense account for that year and reallocated (used to reduce
Employer contributions) in the next year(s) to all Participants, subject to the
applicable Code Section 415 limits for such year(s). If the excess annual
additions may not be fully reallocated to the remaining Participants due to the
limitations on benefits provided herein, a suspense account for such excess
amounts shall be maintained and such suspense account shall be allocated to the
Participants on the allocation date(s) in the next Plan Year(s) until
exhausted. In the event the Plan is terminated, any amounts in the suspense
account which cannot then be allocated due to Code Section 415 limits shall be
returned to the Employer. No Employer or Participant contributions may be made
at any time when their allocation would be
VI-3
<PAGE> 27
precluded by Code Section 415 and investment gains and losses and other income
shall not be allocated to the suspense account.
Notwithstanding anything herein to the contrary, the provisions
of Code Section 415 that may not be applied in more than one way are hereby
incorporated into the Plan by reference and shall control over any Plan
provision in conflict therewith.
6.3 Top Heavy Provisions. The following provisions are to be
applied to determine if the Plan is "top-heavy" within the meaning of Code
Section 416, and the consequences if it is.
(a) Determination of Whether the Plan is Top-Heavy.
1. Top-Heavy Ratio. The Plan shall be top-heavy for a
Plan Year if the Current Balance of the Accounts under the Plan
for "Key Employees" (as defined below), excluding the accounts of
any Participant who is not a Key Employee in the year of
determination but was a Key Employee in a prior year, exceeds
60% of the Current Balance of the Accounts of all Participants as
of a Determination Date (as defined below). The "top-heavy
ratio" shall be determined in accordance with Code Section 416(g)
and the regulations promulgated thereunder. In determining the
Current Balances under the Plan, all distributions made during
the Plan Year in which the determination is made, plus the four
preceding Plan Years shall be included; however, Current Balances
attributable to deductible Employee contributions shall not be
included and the accounts of any Participant who has not
performed any service for the Employer during the 5-year test
period shall be omitted.
VI-4
<PAGE> 28
2. Plans to be Aggregated. For purposes of
determining whether the Plan is top-heavy, all plans of the
Employers and Affiliates in which a Key Employee participates
during the 5-year test period, including any terminated plans,
and each other plan (whether or not terminated) of the Employer
and Affiliates which enables any such plan to meet the
requirements of Code Section 401(a)(4) or 410 shall be aggregated
(the "Required Aggregation Group") in determining whether the
Plan and such plan(s) are top-heavy. However, the Employer may
treat any other plan not part of such group as part of the group
if such group resulting would continue to meet the requirements
of Code Sections 401(a)(4) and 410 (the "Permissive Aggregation
Group").
3. Key Employees. An Employee or former Employee
(including beneficiaries of such Employees) in the Plan shall be
a "Key Employee" if at any time during the Plan Year or any of
the four preceding Plan Years such individual is (a) an officer
of the Employer and whose compensation exceeds 50% of the Code
Section 415(b)(1)(A) dollar limit, (b) one of the 10 employees
owning the largest interests in the Employer if such Employee's
compensation exceeds the Code Section 415(c)(1)(A) dollar limit,
or (c) a 5% owner of the Employer or a 1% owner of the Employer
receiving more than $150,000 in compensation. The number of
officers who are Key Employees shall be limited as provided in
Code Section 416(i). An Employee who is not a Key Employee shall
be a Non-Key Employee.
4. Determination Date. The "Determination Date" shall
be the last day of the preceding Plan Year.
VI-5
<PAGE> 29
(b) If the Plan is Top-Heavy.
1. Vesting. If the Plan is top-heavy for any Plan
Year, a Participant's vested right in the Participant's Employer
Account shall be determined pursuant to the schedule in Section
10.2.
2. Minimum Contribution. For each year the Plan is
top-heavy, each Non-Key Employee eligible to participate in the
Plan, regardless of such individual's level of compensation,
hours worked or failure to make mandatory contributions, shall
receive, if such individual is an Employee at year-end, an
Employer contribution (plus forfeitures) for each payroll period
such individual is in the Eligible Class equal to the greater of
(i) the Employer matching contribution actually received for that
payroll period under the Plan or (ii) a top-heavy contribution
equal to the lesser of (a) 3% of the Participant's compensation
for that payroll period, or (b) the percentage at which Employer
matching contributions are made for the Key Employee with the
highest percentage (which shall include any elective deferrals
under Code Section 401(k)). Further, in the event a Participant
also participates a defined benefit plan of the Employer or
Affiliates that is top-heavy, each Non-Key Employee otherwise
entitled to a benefit shall receive a minimum top-heavy
contribution hereunder of 5% and shall not accrue the minimum
top-heavy benefit required under such other plan.
(c) If the Plan Ceases to be Top-Heavy. If the Plan ceases to
be top-heavy, then all Participants who have received a minimum
contribution under the above rules shall
VI-6
<PAGE> 30
continue to vest under the vesting schedule provided above and all other
Participants shall vest under the Plan's normal vesting schedule.
(d) Section 415 Adjustments. If the Plan is top-heavy for
any Plan Year, a factor of 1.0 shall be used instead of 1.25 in
computing the denominators of the defined benefit and defined
contribution fractions under Code Section 415(e), unless 4% is
substituted for 3% in (b)(2) above.
VI-7
<PAGE> 31
SECTION VII
ACCOUNTS
7.1 Participant Basic Accounts. The Committee shall cause to
be maintained for each Participant a separate Participant Basic Account, which
shall reflect the portion of each Investment Fund that is attributable to such
Participant's own Basic Contributions (as defined in the Plan prior to such
date) made prior to May 1, 1994, if any, and a separate subaccount thereunder
for any such contributions that were made prior to 1987.
7.2 Participant Excess Accounts. The Committee shall cause to
be maintained for each Participant a separate Participant Excess Account, which
shall reflect the portion of each Investment Fund that is attributable to such
Participant's own Excess Contributions (as defined in the Plan prior to such
date) made prior to May 1, 1994, if any, and a separate subaccount thereunder
for any such contributions that were made prior to 1987.
7.3 Participant After-Tax Accounts. The Committee shall cause
to be maintained for each Participant a separate Participant After-Tax Account,
which shall reflect the portion of each Investment Fund that is attributable to
such Participant's own After-Tax Contributions made after April 30, 1994, if
any.
7.4 401(k) Accounts. The Committee shall cause to be
maintained for each Participant a separate 401(k) Account, which shall reflect
the portion of each Investment Fund that is attributable to such Participant's
own 401(k) Contributions, if any.
7.5 Employer Accounts. The Committee shall cause to be
maintained for each Participant a separate Employer Account, which shall
reflect, in separate subaccounts, if appropriate,
VII-1
<PAGE> 32
the portion of each Investment Fund that is attributable to Employer
contributions (regular matching, Employer Stock Match and retirement) made on
behalf of such Participant.
7.6 Rollover Accounts. The Committee shall cause to be
maintained for each Participant who makes a rollover contribution to the Plan a
separate Rollover Account, which shall reflect the portion of each Investment
Fund that is attributable to such rollover contribution.
7.7 Huffco Account. The Committee shall cause to be
maintained for each Participant who transferred the lump sum value of his
employer contribution account under the terminated Roy M. Huffington, Inc.
defined contribution plan to the Plan, which shall reflect the portion of each
Investment Fund that is attributable to such transferred benefit.
7.8 Account Information. The Committee shall deliver or cause
to be delivered to each Participant after the end of each fiscal quarter of the
Plan Year (and at such other times as the Committee may establish) a statement,
in such form as the Committee shall determine, setting forth pertinent
information relative to such Participant's Accounts.
VII-2
<PAGE> 33
SECTION VIII
INVESTMENT OF ACCOUNTS
8.1 Investment Funds. The Trustee shall maintain those
Investment Funds as set forth from time to time on Attachment A hereto, which
is hereby made a part of the Plan for all purposes. Upon the recommendation of
the Committee, the Chairman of the Company may add to or delete from the
Investment Funds offered under the Plan any funds that are within the Fidelity
Advisor Group of Mutual Funds.
8.2 Investment Options. Each Participant's Accounts shall be
separately invested by the Trustee between one or more of the Investment Funds
in multiples of 5%, as directed by the Participant in accordance with Plan
procedures as established from time to time; provided, however, all Accounts
shall be governed by the same investment direction, i.e., a Participant cannot
give separate investment directions for separate Accounts. If a Participant
fails to give an investment direction on such Participant's initial
participation in the Plan, such Participant's Accounts shall be automatically
invested in the money market Investment Fund under the Plan until changed by
the Participant in accordance with Section 8.3. Notwithstanding the foregoing,
a Participant will be given a separate investment election with respect to the
Employer Stock Match and Special Match, as provided in Sections 5.1(a) and (c),
which separate election can only direct such matching amounts into the UTP
Stock Fund and/or LASMO Stock Fund.
8.3 Change in Investment Direction. Any investment direction
shall be deemed to be a continuing one until changed by a Participant in
accordance with this Section 8.3. Except as provided below, a Participant may
change such Participant's investment direction with respect to the Current
Balance of all his Accounts and/or such Participant's future contributions
(such
VIII-1
<PAGE> 34
Participant's and the Employer's made on his behalf) as of any Valuation Date
by giving proper notice in accordance with the Plan procedures as in effect
from time to time; provided, however, the portion of the Employer Account
attributable to the Employer Stock Match may be changed only as of the first
Valuation Date of each calendar quarter by giving the Trustee at least five
days prior notice in the manner established for such notice.
VIII-2
<PAGE> 35
SECTION IX
ACCOUNT BALANCES
9.1 Crediting Of Contributions. Contributions shall be
credited to the respective Accounts as follows:
(a) Participant Contributions: The Trustee shall credit each
Participant's 401(k) Contribution and/or After-Tax Contribution to his
401(k) Account and Participant After-Tax Account, respectively, as of
the date such contributions are received by the Trustee.
(b) Matching Contributions: The Employer matching
contributions shall be credited to the Employer Accounts of the
Participants entitled thereto pursuant to Section 5.1(a) as of the date
such contributions are received by the Trustee.
(c) Retirement Contributions: As of the end of each Plan
Year, the Employer retirement contributions made pursuant to Section
5.1(b) shall be allocated among the Participants who were either (i)
Employees on the last day of the Plan Year or (ii) who terminated
employment during the Plan Year after the Participant's Retirement, or
by reason of death, disability or an involuntary termination other than
for cause. Such retirement contributions shall be credited (together
with interim earnings thereon as hereinafter provided) to the Employer
Account of each such Participant in the same proportion that such
Participant's Basic Compensation for such Plan Year bears to the total
Basic Compensation of all Participants who are eligible to share in the
retirement contribution for such Plan Year.
Contributions made with respect to, but after the end of, a Plan Year shall in
all events be treated (allocated) as if made by the end of such Plan Year.
9.2 Calculation Of Mutual Fund Account Balances. The Current
Balance of an Account invested in an Investment Fund that is a mutual fund
shall be determined under a unit value system as follows:
(a) The Accounts of each Participant in such fund shall be
represented by units of participation ("Units") allocated to such
Participant's Accounts therein. The dollar balance of the Account of a
Participant in such fund as of any date shall be determined by
multiplying (i) the number of Units credited to such Participant's
Account in such fund as of such date, by (ii) the value of a Unit in
such fund on such date.
IX-1
<PAGE> 36
(b) The value of a Unit in each fund shall be the published
fair market value of such Unit as determined by the mutual fund's
sponsor as of the applicable date.
9.3 Calculation Of Nonmutual Fund Account Balances. An
Account invested in either the UTP Stock Fund or LASMO Stock Fund shall be
credited in shares. Any dividends or distributions made with respect to such
shares shall be reinvested in shares of UTP stock or LASMO ADRs, as the case
may be.
IX-2
<PAGE> 37
SECTION X
VESTING OF ACCOUNTS
10.1 Participant Accounts. A Participant shall always be 100%
vested (possess a nonforfeitable interest) in the Current Balance of such
Participant's Participant Basic Account, Participant Excess Account, After-Tax
Account, 401(k) Account, Huffco Account and Rollover Account.
10.2 Employer Account. Subject to the provisions of Section
10.3, the portion of the Current Balance of a Participant's Employer Account
that is vested on any specified date shall be determined in accordance with the
following schedule (provided the Participant completed an Hour of Service on or
after January 1, 1997):
<TABLE>
<CAPTION>
Years of Vested
Service Percentage
------- ----------
<S> <C>
0 0%
1 33 1/3%
2 66 2/3%
3 or more 100%
</TABLE>
A Participant who has not completed an Hour of Service after December 31, 1996
shall continue to be subject to the Plan's prior vesting schedule.
Notwithstanding the foregoing, a Participant who (i) is an
Employee on or after his 65th birthday, or (ii) whose employment with the
Employers and Affiliates is terminated by reason of either disability or death
shall be automatically 100% vested in the Current Balance of such Participant's
Employer Account. The term "disability" means a physical or mental impairment
which, in the opinion of the Committee based upon the recommendation of a
physician selected or
X-1
<PAGE> 38
approved by the Committee, will permanently prevent the Participant from
resuming active employment with the Employer or Affiliates.
10.3 Termination Of Plan Or Employer Contributions. In the
event the Plan is terminated or partially terminated or Employer contributions
under the Plan are permanently discontinued, the vesting provisions contained
in Section 10.2 shall be inapplicable and each affected Participant shall
thereupon be 100% vested in such Participant's Employer Account as of the date
such discontinuance or termination.
X-2
<PAGE> 39
SECTION XI
WITHDRAWALS AND LOANS
11.1 Excess and Huffco Account Withdrawals. A Participant who
is an Employee may, by filing an appropriate form with the Employer prior
thereto, withdraw all or any portion of the Current Balance of such
individual's Participant Excess Account and/or Huffco Account (as specified by
the Participant) as of the Valuation Date on or next following the date of
receipt of such request. Each withdrawal hereunder shall be for at least $100
or the remaining balance of such Account, whichever is less. Only one such
withdrawal may be made under this Section 11.1 during any 12-month period.
A Participant who makes a withdrawal from such individual's
Participant Excess Account under this Section 11.2 shall have all of his 401(k)
and/or After-Tax Contributions then being made to the Plan, if any, to the
extent such amounts exceed 6% of his Basic Compensation automatically
suspended. Such a Participant may, if such individual is still in the Eligible
Class, resume making contributions to the Plan in excess of 6% of such
individual's Basic Compensation as of any Entry Date that is at least six
months after the date of such withdrawal by giving written notice of such
resumption to the Employer on a Plan form at least five days prior to the Entry
Date on which such resumption of contributions is to become effective, unless
such requirement is otherwise waived by the Committee. No withdrawals may be
made from the UTP Stock Fund or LASMO Stock Fund until all other investment
funds of the Participant have been exhausted.
11.2 Basic Account Withdrawals. A Participant who is an
Employee may, by filing an appropriate form with the Employer prior thereto,
withdraw all or any portion of the Current Balance of such individual's
Participant Basic Account as of the Valuation Date on or next following
XI-1
<PAGE> 40
the date of receipt of such request; provided, however, the Participant must
have withdrawn (or simultaneously elected to withdraw) such individual's entire
Participant Excess Account and Huffco Account, if any. Each withdrawal
hereunder shall be for at least $100.00 or the remaining balance of the
Account, whichever is less. Only one such withdrawal may be made under this
Section 11.2 during any 12-month period.
A Participant who makes a withdrawal under this Section 11.2
shall have all of such Participant's 401(k) and/or After-Tax Contributions then
being made to the Plan, if any, automatically suspended. Such a Participant
may, if such individual is still in the Eligible Class, resume making
contributions to the Plan as of any Entry Date that is at least six months
after the date of such withdrawal by giving written notice of such resumption
to the Employer on a Plan form at least five days prior to the Entry Date on
which such resumption of contributions is to become effective, unless such
requirement is otherwise waived by the Committee. No withdrawals may be made
from the UTP Stock Fund or LASMO Stock Fund until all other investment funds of
the Participant have been exhausted.
11.3 Terminated Participant Withdrawals. A Participant who has
ceased to be an Employee may withdraw all of the vested amounts of such
Participant's Accounts as of the Valuation Date on or next following the date
such Participant files the appropriate withdrawal form with such Participant's
former Employer. No withdrawals may be made from the UTP Stock Fund or LASMO
Stock Fund until all other investment funds of the Participant have been
exhausted.
11.4 Hardship Withdrawals. By filing the appropriate form with
the Employer, a Participant who is an Employee may make a hardship withdrawal
from such individual's Participant After-Tax Account and/or 401(k) Account as
of the Valuation Date on or next following the date of
XI-2
<PAGE> 41
receipt of such request; provided, however, the Committee shall not approve any
such request unless it finds that the Participant is facing a hardship creating
an "immediate and heavy financial need" (as defined below) and the Participant
has obtained all distributions, other than hardship distributions, or all
nontaxable loans currently available under the Plan and all other plans of the
Employer and its Affiliates. The amount of the hardship withdrawal shall be
limited to an amount that does not exceed the lesser of: (1) that amount which
the Committee determines to be required to meet the immediate financial needs
created by the hardship, which, upon request of the Participant, may include
amounts necessary to pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution, or (2) the amount of
the Participant After-Tax Account and/or 401(k) Account, but excluding all
earnings credited to the 401(k) Account. Hardship withdrawals shall be taken
first from a Participant's After-Tax Account, if any. No withdrawals may be
made from the UTP Stock Fund or LASMO Stock Fund until all other investment
funds of the Participant have been exhausted. Further, if a hardship
distribution is made under the Plan, the restrictions set forth in subparagraph
(b) below shall apply. The following standards shall be applied on a uniform
and non-discriminatory basis in determining the existence of a hardship:
(a) A financial need shall be deemed to be an "immediate and
heavy financial need" if it is on account of:
(1) Medical expenses described in Section 213(d) of the
Code incurred by the Participant, the Participant's spouse, or
any dependents of the Participant (as defined in Section 152 of
the Code), or are otherwise necessary to be incurred in order for
these persons to obtain such medical care;
(2) Purchase (excluding mortgage payments) of a
principal residence for the Participant;
XI-3
<PAGE> 42
(3) Payment of tuition, related educational fees and
room and board for up to the next 12 months of post-secondary
education for the Participant, his or her spouse, children, or
dependents;
(4) The need to prevent the eviction of the Participant
from Participant's principal residence or foreclosure on the
mortgage of the Participant's principal residence; or
(5) Any other "safe harbor" event set forth in the
Treasury Regulations or other IRS announcements concerning
hardships.
(b) Upon a hardship distribution,
(1) The Participant's contributions under the Plan, and
all other plans maintained by the Employer and its Affiliates
(other than a health or welfare benefit plan), will be suspended
for 12 months, and
(2) The Participant may not make 401(k) Contributions
under the Plan, and all other plans maintained by the Employer
and its Affiliates, for the Participant's taxable year
immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Code Section
402(g) for such next taxable year less the amount of the
Participant's elective 401(k) Contributions for the taxable year
of the hardship distribution.
11.5 Age 59 1/2 Withdrawals. By filing the appropriate form
with the Employer, a Participant who is an Employee and age 59 1/2 or older may
withdraw all or any portion of the Current Balance of such Participant's 401(k)
Account and/or Participant After-Tax Account as of the Valuation Date on or
next following the date of receipt of such request; provided, however, the
amount of such withdrawal must be for at least $100 or the entire balance of
such Account, whichever is less. Only one withdrawal may be made under this
Section 11.5 during any 12-month period. No withdrawals may be made from the
UTP Stock Fund or LASMO Stock Fund until all other investment funds of the
Participant have been exhausted.
11.6 Rollover Account Withdrawals. By filing the appropriate
form with the Employer, a Participant who is an Employee may withdraw all or
any portion of the Current Balance
XI-4
<PAGE> 43
of such Participant's Rollover Account as of the Valuation Date on or next
following the date of receipt of such request; provided, however, the amount of
such withdrawal must be for at least $100 or the entire balance of such
Account, whichever is less. Only one withdrawal may be made under this Section
11.6 during any 12-month period. No withdrawals may be made from the UTP Stock
Fund or LASMO Stock Fund until all other investment funds of the Participant
have been exhausted.
11.7 Loans. Loans shall be available from a Participant's
401(k) Account and/or Participant After-Tax Account to all Participants (and
Beneficiaries) who are "parties in interest" to the Plan, within the meaning of
ERISA, on a uniform and nondiscriminatory basis; provided, however, only one
such loan may be made during any Plan Year and only one loan may be outstanding
at any time. A Participant (or Beneficiary) shall make any application for a
loan in writing to the Committee.
Each loan shall be evidenced by a promissory note and shall be in
an amount not exceeding the lesser of (i) $50,000 reduced by the excess (if
any) of the highest outstanding balance of loans from the Plan (solely for this
purpose, all qualified plans of the Company and its Affiliates shall be treated
as one plan) to the Participant (or Beneficiary) during the one-year period
ending on the day before the date on which the loan is made, over the
outstanding balance of loans, if any, from the Plan to the Participant (or
Beneficiary) on the date on which such loan was made, or (ii) one-half of the
present value of Participant's vested Account balances, but not exceeding the
value of the Participant's After-Tax Account and 401(k) Account. The minimum
amount for which a loan can be made shall be $500. No loans may be made from
the UTP Stock Fund or LASMO Stock Fund until all other investment funds of the
Participant have been exhausted. All loans shall be secured by one-half of the
Participant's vested Accounts. Loans shall be taken first from a Participant's
XI-5
<PAGE> 44
After-Tax Account, if any, and each loan obligation shall be automatically
segregated from the general investments of the Plan and shall be allocated
solely to a separate loan subaccount established for such borrowing Participant
until the loan is repaid in full. All loans shall be payable in such
substantially equal semimonthly installments over a period not to exceed five
years and shall bear interest at the prime rate of interest at the date of the
loan, plus 1%, and shall have such other terms as the Committee determines,
which may include a charge for the Plan's estimated cost of establishing and
maintaining the loan.
As a pre-condition to any loan, the Participant must, in writing,
authorize the Employer (i) to withhold from such Participant's Basic
Compensation each pay period the amount of the periodic installment payments
which are then due on the loan and to remit the same to the Trustee, who shall
apply such amount in reduction of the loan and invest the loan repayments in
accordance with the Participant's then-current investment direction, and (ii)
in the event of a default, to apply the vested portion of such Participant's
Accounts to the payment of such default as soon as a distribution from the
401(k) Account can be made without jeopardizing the qualified status of the
Plan. If the loan to a Participant is unpaid on the date that the Participant
(or such Participant's Beneficiary) ceases to be a "party in interest" or would
otherwise receive a distribution of such Participant's 401(k) Account from the
Plan following such Participant's termination of employment, such loan shall
become due and payable in full on such date and the amount thereof, together
with any interest thereon, shall be deducted from the amount of the
distribution which the Participant (or such Participant's Beneficiary) would
otherwise receive or be entitled to receive on such date. The Participant
shall be eligible to receive any remaining balance due in accordance with the
other
XI-6
<PAGE> 45
provisions of the Plan. Notwithstanding the foregoing, loan repayments will be
suspended under this Plan as permitted under Code Section 414(u)(4).
11.8 Withdrawals Among Investment Funds. A Participant, at the
time of making an election to withdraw or borrow from such individual's
Accounts under this Section XI, shall designate the particular Investment Fund
or Funds from which such individual wishes to effect the requested withdrawal
or loan. Any such withdrawal or loan from an Investment Fund shall be subject
to all the terms and conditions of the governing investments in the particular
Investment Fund, including, if applicable, a negative market value adjustment
incurred because of such withdrawal.
XI-7
<PAGE> 46
SECTION XII
DISTRIBUTIONS
12.1 Time Of Distribution. Subject to the following,
distributions shall be made or commence as soon as reasonably practicable as of
the Valuation Date on or next following the Participant's termination of
employment with the Employer and all Affiliates, and in all events shall be
made or begin within 60 days after the end of the Plan Year in which the later
of the Participant's termination of employment or 65th birthday occurs;
further, distribution shall be made in all events prior to the April 1
following the calendar year in which the Participant reaches age 70-1/2 or
retires. Distributions due to the death of a Participant shall be paid to such
Participant's Beneficiary in a lump sum as soon as practicable and in all
events in full within five years of such Participant's death.
Notwithstanding the foregoing, if the vested Current Balance of
the Accounts of a Participant who has not reached normal retirement age (65)
exceeds $3,500 (or exceeded $3,500 at the time of any prior withdrawal), the
Participant must consent to such distribution in writing; if the Participant
fails to so consent, the Participant's Accounts shall continue to be held in
the Trust until the Valuation Date coincident with or next following the
earlier of the date the Participant attains age 65, dies or consents in writing
to a distribution.
12.2 Method Of Distribution. Distribution of the Current
Balance of any Account shall be made in a lump sum by check, unless the vested
Account balances of the Participant exceed $3,500 (or exceeded $3,500 at the
time of any prior withdrawal), and the Participant elects to receive
installment distributions (by check) pursuant to Section 12.4.
12.3 Forfeitures. Upon a Participant's termination of
employment with the Employers and Affiliates, the nonvested portion, if any, of
such Participant's Employer Account
XII-1
<PAGE> 47
shall be forfeited at the end of the Plan Year in which the Participant
receives a distribution following termination of employment or incurs a 60-
month Period of Severance, whichever occurs first. A Participant who has a
zero vested interest in such individual's Employer Account shall be deemed to
have received a distribution of such zero interest balance upon termination of
employment. If a Participant resumes employment before incurring a 60-month
Period of Severance any amounts forfeited in connection with the earlier
termination shall be restored, unadjusted for interim Trust Fund gains or
losses, by additional Employer contributions or from other forfeitures then
existing under the Plan, provided the Participant repays to the Plan the full
amount of the prior distribution before the earlier of the fifth anniversary of
the Participant's reemployment date or the incurrence of a 60-month Period of
Severance.
12.4 Election Of Installment Distribution. A Participant who
is not subject to the automatic $3,500 and under cashout rule described in
Section 12.2 may elect to receive installment payments in lieu of a lump sum
distribution by filing the proper election form with the Employer at least five
days prior to the distribution, unless such requirement is otherwise waived by
the Committee. In such election the Participant must specify the installment
period being elected, which may not exceed the lesser of 20 years or the
Participant's life expectancy, and whether the installments are to be paid
monthly or annually. An installment election may be canceled by the
Participant at any time prior to its commencement by notifying the Employer in
writing of such cancellation.
Installment payments shall commence as of the Valuation Date on
or next following the receipt of the Participant's election, and shall end with
the payment to be made as of the designated anniversary of such beginning
Valuation Date as specified by the Participant. The
XII-2
<PAGE> 48
amount of each installment shall be equal to the Current Balance of the
Accounts on each Valuation Date the installment is payable, divided by the
number of installments remaining to be paid, including that to be currently
paid. At any time during the installment period, by filing the proper form
with the Committee, a Participant may accelerate the remaining balance of such
Participant's Accounts as of the Valuation Date on or next following the
receipt of such request.
If a Participant dies during the installment period, the Current
Balance of such Participant's Accounts shall be paid as soon as practicable in
a lump sum to the designated Beneficiary as of the Valuation Date coinciding
with or next following the date notice of such death is received by the
Committee.
12.5 Direct Rollover Distributions. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a
distributee's election under this Section, a distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have any portion of
an eligible rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income
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(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b) of
the Code, an annuity plan described in section 403(a) of the Code, or a
qualified trust described in section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(d) Direct rollover: A direct rollover is a payment by the
plan to the eligible retirement plan specified by the distributee.
12.6 30-Day Waiver. If a distribution is one to which Sections
401(a)(11) and 417 of the Code do not apply, such distribution may commence
less than 30 days after the notice required under section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
(1) the Committee clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving
the notice to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular distribution option), and
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(2) the Participant, after receiving the notice, affirmatively
elects a distribution.
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SECTION XIII
BENEFICIARIES AND SPECIAL PAYMENT PROVISIONS
13.1 Designation Of Beneficiaries. A Beneficiary designation
and any revocation or change thereof shall be made in writing in such form as
the Committee may from time to time prescribe and shall be effective when filed
with the Employer; PROVIDED, HOWEVER, if a Participant is married, then
notwithstanding any beneficiary designation to the contrary, such Participant's
spouse shall automatically be such Participant's sole beneficiary unless the
spouse consents in writing to another designation, the designation specifies a
named beneficiary and the form of distribution and provides that no change may
be made in the beneficiary and/or form of payment unless a new spousal consent
is obtained, acknowledges the effect of such designation on the spouse's rights
to benefits under the Plan and the spouse's consent is witnessed by a notary
public. A spouse's consent once given is irrevocable. A Participant's
marriage subsequent to a designation shall automatically revoke all
designations theretofore filed by the Participant and a Participant's divorce
shall automatically revoke any designation of such former spouse as the
Participant's Beneficiary. If more than one person is named, the Participant
must indicate the share and/or precedence of each person. Subject to the
foregoing restrictions on married Participants, a Participant may change any
designated Beneficiaries from time to time without notice to or of any
Beneficiary.
If no designation is in effect upon the death of a Participant,
then any benefit payable under the Plan with respect to such Participant shall
be paid to the Participant's surviving spouse or, if none, to the administrator
or executor of the estate of such Participant.
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13.2 Payments To Minors And Incompetents. If any person
entitled to receive any benefits hereunder is legally incompetent by reason of
minority or otherwise, the Committee may instruct the Trustee to make
distribution to the parent(s), legal guardian(s) or custodian(s) of such
person, and such distribution shall constitute a complete discharge of all
liability with respect to such benefit.
13.3 Non-Assignability Of Rights. Except for the right of a
Participant to name one or more Beneficiaries to receive any distribution of
benefits upon the death of such Participant, or as otherwise provided by a
qualified domestic relations order ("QDRO") as defined in Code Section 414(p),
none of the benefits, payments, proceeds, claims or rights of any person is or
may become entitled to receive under the Plan, contingently or otherwise, shall
be subject, through legal or equitable proceedings or otherwise, to any claim
of any creditor of any such person prior to actual receipt thereof by such
person, nor shall any such person have any right to assign, anticipate,
transfer or encumber any of the benefits, payments, proceeds, claims or rights
such individual may expect to receive, contingently or otherwise, under this
Plan, and any such attempted assignment, anticipation, transfer or encumbrance
shall be wholly and absolutely void. However, an alternate payee under a QDRO
may relieve a distribution pursuant to the QDRO, irrespective of whether the
Participant has attained the earliest retirement age (as defined in Section
414(p) of the Code), provided the order specifies or permits distribution at
such earlier time.
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SECTION XIV
MANAGEMENT OF THE TRUST FUND
14.1 Trust Agreement. As a part of this Plan, the Company
shall enter into a trust agreement with one or more Trustees establishing a
trust fund to provide, in separate Accounts, for the receiving, holding,
investing and disbursing of the Employers' and Participants' contributions to
the Plan, together with the increment, increase and income thereof and
therefrom; the properties and other assets of such Accounts shall constitute
the trust fund of the Trust. When entered into, the trust agreement shall
constitute a part of this Plan and all rights which may accrue to any person
under this Plan shall be subject to all of the terms and provisions of such
trust agreement. The trust agreement shall be subject to amendment and
modification in accordance with the provisions of this plan and such trust
agreement.
14.2 Trustee. The Trustee shall be appointed by the Chairman
of the Company, with such rights, powers and authorities as are set forth in
the trust agreement and any amendment thereto or modification thereof. Any
Trustee may voluntarily resign or be removed by the Chairman of the Company at
any time as provided in the Trust Agreement, and upon any such removal or upon
resignation of any Trustee, a successor Trustee shall be named by the Chairman
of the Company.
14.3 Trust Assets For Exclusive Benefit Of Participants.
Except as provided below, all assets held by each Trustee under the Plan shall
be held in trust for the exclusive benefit of the Participants and their
Beneficiaries under the Plan, and no part of the corpus or income of such
assets shall ever revert to any Employer or be used for, or diverted to,
purposes other than for the exclusive benefit of the Participants and their
Beneficiaries under the Plan. No Participant, Beneficiary or other person
shall have any right in or to any part of the corpus or income of any
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Account or in or to the Trust or any part of the assets thereof, except as and
when and to the extent expressly provided in this Plan. Each Participant or
other person who shall claim the right to receive any payment under the Plan
shall be entitled to look only to the Trust for such payment. The
establishment of the Plan and Trust shall not give any Employee or any other
person any legal or equitable right as against the Employer, the Committee or
the Trustee, except and to the extent that such right is specifically provided
for in this Plan or the Trust.
However, an Employer contribution made based on a good faith
mistake of fact or good faith mistake in determining the deductibility of the
contribution shall be returned to the Employer within one-year of the mistaken
payment or disallowance of the deduction, as the case may be. The amount
returnable is in excess of the amount contributed over the amount that would
have been contributed had there not occurred such mistake. However, earning on
the excess amount may not be so returned and any losses attributable to such
amount shall reduce the amount returnable. Further, the amount returnable
cannot cause the individual account of any Participant to be reduced to less
than it could have been had the mistaken amount not been contributed.
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SECTION XV
PLAN ADMINISTRATION
15.1 Administrative Committee. The Plan shall be administered
by a Committee of not less than three members who may, but need not, be
Participants. Members of the Committee shall be appointed by and shall hold
office at the pleasure of the Chairman of the Company. Upon the recommendation
of the Committee's Chairman, the Chairman of the Company may increase or
decrease, but not to less than three members, the membership of the Committee
at any time and from time to time. Any member of the Committee may resign by
delivering a written resignation to the Chairman of the Company and to the
Committee. A vacancy shall exist on the Committee if at any time there are
less than three members, and any such vacancy, whether resulting from death,
resignation, removal or otherwise, shall be filled by the Chairman of the
Company.
15.2 Chairman, Secretary And Subcommittees. The members of the
Committee shall elect from their number a Chairman and shall appoint a
Secretary, who need not be a member of the Committee. The Committee shall
furnish to the Trustee certificates as to the identity of its Chairman and
Secretary from time to time, and the designation of any other person or persons
authorized to act on behalf of the Committee, together with a specimen of the
signature of each of such persons, and the Trustee shall be entitled to rely
upon the identity and authority of the Chairman, Secretary and other persons as
disclosed by such certificates until receipt by the Trustee from the Committee
of a written revocation of such authorization. The Secretary shall keep
minutes of the Committee's proceedings and all data, records and documents
relating to the Committee's administration of the Plan. The Committee may
appoint from its number such subcommittees with such powers as the Committee
shall determine and may authorize one or more members of the
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Committee or any agent to execute or deliver any instrument or make any payment
on behalf of the Committee, and the Committee may retain such legal counsel or
accountants, who may or may not be in the employ of the Company, actuaries,
physicians and such clerical services as they may require in carrying out the
provisions of the Plan.
15.3 Meetings And Majority Vote. The Committee shall hold
meetings upon such notice, at such time and at such place as it may determine.
Notice of meetings shall not be required if waived in writing. A majority of
the members of the Committee shall constitute a quorum for the transaction of
business, and the Committee may act notwithstanding the existence of a vacancy
so long as there are at least two members of the Committee present and
participating. All resolutions or other actions taken by the Committee shall
be either by the vote of a majority of those present at a meeting at which a
majority of the members is present, or by a written instrument signed by all
the members if such members act without a meeting.
15.4 No Bond Required Or Compensation To Be Paid. The members
of the Committee shall serve without bond or other security, except as
otherwise provided by law, and without compensation for their services as such.
15.5 General Powers And Duties. The Committee shall have
complete control of the administration of this Plan, with all powers necessary
to enable it to carry out its duties in that respect. Not in limitation but in
amplification of the foregoing, the Committee shall have the power to interpret
or construe this Plan, to determine all questions that may arise hereunder as
to the eligibility of Employees and the status and rights of Participants and
others, adopt by-laws for the conduct of its affairs and make rules and
regulations for the administration of the Plan which are not inconsistent with
the terms and provisions hereof, and such other powers and duties relating to
the
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administration of the Plan as are conferred or imposed upon it hereunder and
under the trust agreement. The members of the Committee shall at all times
comply with the provisions of ERISA and the Code relating to fiduciaries.
15.6 Appointment And Allocation. Each person serving as a
member of the Committee may by written instrument appoint a person or persons
other than another member of the Committee to carry out the fiduciary
responsibilities of such person under this Plan. The members of the Committee
may by written agreement allocate fiduciary responsibilities among themselves,
and if such responsibilities are so allocated, then the responsibilities of
each such person shall be exercisable severally and not jointly, with each such
person's responsibilities being limited to the specific areas which were
allocated to him. Any person or group of persons may serve in more than one
fiduciary capacity with respect to the Plan, and any member of the Committee or
other fiduciary may employ one or more persons to render advice with regard to
any responsibility such person has under the Plan.
15.7 Claims For Benefits. Unless waived by the Committee, each
person claiming benefits under the Plan must file a written application for the
same with the Committee. The Committee shall make all determinations as to the
identity and right of any person to a benefit, and the proper amount thereof,
under this Plan. Any denial by the Committee of the claim for benefits under
the Plan by a Participant or other person shall be stated in writing by the
Committee and delivered or mailed to the Participant or other person, and such
notice shall set forth the specific reasons for the denial, written to the best
of the Committee's ability in a manner calculated to be understood by such
Participant or other person. In addition, the Committee shall afford a
reasonable opportunity to any Participant or other person whose claim for
benefits has been denied for a review
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of the decision denying the claim. The payment of any benefit in accordance
with the Committee's determination shall constitute a complete discharge of all
obligations on account thereof. No payment shall be made under this Plan until
it has been authorized by the Committee. The Committee may require any payee,
as a condition to making such payment, to execute a receipt and release in such
form as the Committee shall determine.
15.8 Maintenance Of Accounts And Reports. The Committee shall
cause to be kept accounts showing the fiscal transactions of the Plan. The
Committee shall render annually a report setting forth in reasonable detail the
assets and liabilities of the Plan, and giving a brief account of the operation
of the Plan for the past year to the Chairman of the Company. Such report
shall be filed in the office of the Committee, where it shall be open to
inspection by any Participant.
15.9 Information To Be Furnished. To enable the Committee to
perform its functions, each Employer shall supply full and timely information
to the Committee on all matters relating to the compensation of each of its
Employees who are Participants, their Retirement, death or other cause for
termination of employment, and such other pertinent facts as the Committee may
require.
Each person claiming a benefit under the Plan shall furnish the
Committee and/or Trustee information and proof as to all facts which the
Committee and Trustee may require.
15.10 Reliance On Data And Opinions. The Committee shall be
entitled to rely on all data and information furnished to it by any Employer,
the Participants and any other person entitled to receive benefits under the
Plan. Each Employer and the Committee shall be entitled to rely upon all
certificates and reports furnished by any accountant designated by the
Committee, and
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upon all reports, certificates and opinions furnished by any physician selected
by the Employer, and upon all opinions given by any attorney selected by the
Committee.
15.11 Action Non-Discriminatory. The Committee shall not take
any action whatsoever which would result in benefiting one Participant or group
of Participants at the expense of another, or in discrimination as between
Participants similarly situated, nor shall it apply different rules to
substantially similar sets of facts.
15.12 Liability Of And Indemnity To Members. The Company shall
fully protect, indemnify and defend each and every member and former member of
the Committee from and against all claims, liabilities, costs and expenses,
including attorneys' fees, which may be asserted against such member or former
member, arising out of or resulting from individual's action or omission to act
in such individual's capacity as a member of the Committee, except for such
member's own gross negligence or willful misconduct.
15.13 Investment Manager. The Board, or its delegate, may, but
shall not be required to, appoint an Investment Manager (a person described in
ERISA Section 3(38)) to manage (including the power to acquire and to dispose
of) any or all of the assets of the Trust.
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SECTION XVI
PARTICIPATION BY AFFILIATES
16.1 Adoption Of Plan. Any Affiliate which the Board shall
declare eligible to adopt and participate in the Plan may adopt and become a
party to this Plan and the trust agreement provided for herein subject to and
upon such terms and conditions as the Board may prescribe, including, without
limitation, conditions as to:
(a) the instruments to be executed and delivered by such
Affiliate to the Trustee and to the Company;
(b) the extent to which the Company shall act as agent or
representative of such Affiliate under the Plan; and
(c) authorization to the Company to act for such Affiliate and
its Employees who are Participants under the Plan.
The Plan shall be effective with respect to each adopting Affiliate and its
Employees on such date as shall be approved by the Board and specified in the
instruments executed by such Affiliate adopting the Plan.
Upon adoption of the Plan by an Affiliate in accordance with the
provisions of this Section 16.1, such Affiliate and its Employees shall
thereupon be governed and bound by all the terms and provisions of the Plan,
subject to any additional terms and conditions upon which such Affiliate
adopted the Plan, and, so long as such Affiliate shall continue its
participation in the Plan, it shall be an Employer hereunder.
16.2 Withdrawal From Plan. Any Employer (other than the
Company) shall have the right to withdraw from the Plan effective at the end of
any calendar month by giving prior written notice to the Company and the
Trustee. Upon any such withdrawal, the Trustee shall value the assets
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of the Trust as though such withdrawal date were a Valuation Date and the
Current Balances of all the Accounts shall be calculated as provided in Section
IX. The Trustee shall then set apart that portion of the Trust which, as
certified by the Committee, is attributable to the Accounts of the Participants
who are Employees of such withdrawing Employer plus any contributions not
previously allocated to such Participants' Accounts. That portion of the Trust
so set apart shall continue to be held by the Trustee in trust under the terms
and provisions of the trust agreement as though such withdrawing Employer had
entered into such trust agreement with the Trustee as its own separate trust
agreement, and such Employer shall be deemed to have thereupon adopted the Plan
as its own separate plan and shall have and may exercise all of the rights,
powers and authorities of the Company under the Plan and trust agreement.
Upon withdrawal of an Affiliate from the Plan, it shall cease to
be an Employer under this Plan and shall not be eligible to again adopt and
participate in this Plan unless it is again approved for participation by the
Board pursuant to Section 16.1.
16.3 Termination Of Employer Participation By Company. The
Company may, in its absolute discretion, terminate the participation of any
other Employer in the Plan effective at the end of any calendar month by giving
at least 60 days' prior written notice to such Employer, the Committee and the
Trustee. Any such termination of participation of an Employer shall have the
same effect as a voluntary withdrawal by such Employer pursuant to Section
16.2, and the procedures set forth in and the provisions of such Section shall
be applicable.
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SECTION XVII
AMENDMENT AND TERMINATION
17.1 Right To Amend Or Terminate. It is the intention of each
Employer by its adoption hereof to create a permanent savings plan and to
continue to make contributions hereunder indefinitely; nevertheless:
(a) each Employer reserves and shall have the right at any
time and from time to time to discontinue or terminate its liability to
make contributions hereunder or to reduce or suspend such contributions
for a fixed or indeterminate period of time or to terminate the Plan
insofar as such Employer and its Employees are concerned, but any such
action shall affect only the particular Employer taking such action and
its respective Employees;
(b) the Company, by action of the Board, reserves and shall
have the right to amend the Plan (including any trust agreement which
forms a part hereof) in whole or in part at any time and from time to
time;
(c) the Chairman of the Company may also amend the Plan to
make such administrative or ministerial changes in the Plan or such
amendments that are necessary to maintain the qualified status of the
Plan; provided, however, the Chairman of the Company may not make any
amendment that would materially increase any Employer's obligations
under the Plan; and
(d) the Company, by action of the Board, reserves and shall
have the right to terminate the Plan in its entirety at any time, and
such action by the Company shall be binding upon all Employers and their
Employees.
Written notice of any such action shall be given to the parties affected
thereby, specifying the effective date thereof, and any such action shall be
evidenced by an instrument in writing, duly executed by the Company and/or the
Employer(s) or the Committee, as the case may be, and shall be filed with the
Committee and the Trustee. To the extent permitted by the Code, any amendment
of the Plan by the Company may be made effective retroactively.
17.2 Restrictions On Amendment. No amendment, change or
modification shall be made in the Plan (including any trust agreement which
forms a part hereof) which will eliminate
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or reduce an early retirement benefit under the Plan or a subsidy that
continues after retirement, or which will eliminate any optional form of
benefit (except as permitted by the Code and regulations promulgated
thereunder), or which will give any Employer any rights in funds contributed to
the Trust or in any assets of the Trust (except under the circumstances and to
the extent provided in ERISA Section 403(c)(2)) or which will adversely change
the vesting schedule for any Participant who has completed three Years of
Service.
17.3 Effect Of Dissolution, Or Employer Merger. This Plan
shall automatically terminate as to an Employer upon the legal dissolution of
such Employer, upon the making of a general assignment for the benefit of its
creditors, or upon expiration or forfeiture of its corporate charter. It shall
likewise terminate as to an Employer upon the merger, consolidation or
reorganization of such Employer with any other corporation(s) or other business
organization(s), unless such Employer is a surviving corporation or such other
corporation(s) or business organization(s) shall, by instrument in writing
filed with the Committee and the Trustee assume the obligations of such
Employer hereunder. Written notice of any such automatic termination shall be
given to the Trustee by the Committee.
17.4 Effect Of Plan Merger, Consolidation Or Transfer Of
Assets. If this Plan is merged or consolidated with any other plan, or its
assets or liabilities are transferred to any other plan, each Participant shall
be entitled to a benefit immediately after the merger, consolidation or
transfer at least equal to the benefit he would have received if he had been
entitled to a benefit immediately preceding the merger, consolidation or
transfer and the Plan had then terminated.
17.5 Expiration Of Trust Term. If this Plan shall not have
theretofore been terminated under the provisions hereof, it shall finally
terminate upon expiration of the Trust term.
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17.6 Distribution Upon Termination Of Plan. As of the date of
termination of this Plan (other than by reason of the payment and distribution
of all funds held in the Trust), the Trust shall be revalued as if such date
were a Valuation Date and the Current Balances of all the Accounts shall be
calculated in accordance with Section 9.3. Upon termination of the Plan, and
prior to making any distributions from the Plan in connection therewith, the
Company shall notify the appropriate District Director of the Internal Revenue
Service that the Plan has been terminated and shall obtain a ruling from such
District Director as to the effect of such termination. The Committee shall
then instruct the Trustee, after all obligations to and incurred by it have
been paid and allocated to the Participant's Accounts as provided by the trust
agreement, to distribute to each Participant with respect to whom the Plan has
been terminated, or such Participant's Beneficiary, the full amount then
standing to the credit of all such Participant's Accounts; provided, however
such distributions shall be made in accordance with Section XII, including
without limitation the requirements concerning joint and survivor annuities and
spousal consents.
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SECTION XVIII
GENERAL PROVISIONS
18.1 Employer's Rights. The Employer's rights to discipline,
transfer, discharge or terminate the employment of Employees or to exercise its
rights as to incidents and tenure of employment shall not be impaired or
affected in any manner by reason of the existence of the Plan or any action
taken under the Plan.
18.2 Notice Of Address. Each Participant and each other person
receiving or eligible to receive benefits under the Plan shall file with the
Employer notice in writing of such individual's post office address and each
change of post office address. Any notice, statement or other communication
addressed to any person at such individual's last post office address filed
with the Employer, or if no post office address was filed with the Employer by
such person, then at last post office address of the Participant by reason of
whose employment such benefit is payable as shown by the Employer's records,
shall be binding upon such person for all purposes of the Plan. Neither the
Committee, the Employers nor the Trustee shall be required or obligated to
search for or ascertain the whereabouts of any person eligible to receive
benefits under the Plan.
18.3 Copies Of Plan Available. Copies of the Plan and any and
all amendments thereto shall be made available at all reasonable time to all
Employees of an Employer at the office so such Employer designated by the
Committee.
18.4 Titles And Headings. The titles to and headings of
Sections in the Plan are for convenience and reference only, and, in the event
of any conflict, the text of the Plan rather than such titles or headings shall
control.
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18.5 Counterparts. This Plan and all amendments thereto may be
executed in any number of counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the same
instrument which may be sufficiently evidenced by any one counterpart.
18.6 Applicable Law. This Plan is created under and shall be
governed, construed and administered in accordance with the laws of the State
of Texas, except to the extent that such laws may be preempted by ERISA.
18.7 Unclaimed Benefits. If at, after or during the time when
a benefit hereunder is payable, the Committee shall mail by registered or
certified mail to a distributee, at such individual's last known address, a
written demand for such individual's present address or for satisfactory
evidence of such individual's continued life, or both, and if such distributee
shall fail to furnish the same to the Committee, then the Committee may, in its
sole discretion, declare such benefit terminated as if the death of the
distributee (with no surviving Beneficiary) had occurred on such date;
provided, however, that such forfeited benefits shall be reinstated if a claim
for the same is made by the Participant or Beneficiary at any time thereafter.
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SECTION XIX
ANTIDISCRIMINATION TESTS
19.1 Special Definitions.
(a) Family Member. An individual included in the following
group: an Employee's spouse, lineal ascendants, or the spouses of such lineal
ascendants or descendent.
(b) Highly Compensated Participant. Any Participant or Former
Participant who is a highly compensated employee as defined in Code Section
414(q). Generally, any Participant or Former Participant is considered a
Highly Compensated Participant if during the Plan Year or the preceding Plan
Year such Participant or Former Participant:
(1) was at any time a "5% owner." "5% owner" means any person
who owns (or is considered as owning within the meaning of Code Section
318) more than 5% of the outstanding stock of the Employer or stock
possessing more than 5% of the total combined voting power of all stock
of the Employer or, in the case of an unincorporated business, any
person who owns more than 5% of the capital or profits interest in the
Employer. In determining percentage ownership hereunder, employers that
would otherwise be aggregated under Code Section 414(b), (c), and (m)
shall be treated as separate employers.
(2) received Total Compensation from the Employer in excess of
$75,000 (adjusted pursuant to Code Section 415(d)).
(3) received Total Compensation from the Employer in excess
of $50,000 (adjusted pursuant to Code Section 451(d) and was in the top-
paid group of Employees for the Plan Year. An Employee is in the top-
paid group of Employees for the Plan Year if such
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Employee is in the group consisting of the top 20% of the Employees when
ranked on the basis of Total Compensation paid during the Plan Year.
(4) was at any time an officer of the Employer (as that term
is defined within the meaning of the regulations under Code Section 416)
having annual Total Compensation greater than 50% of the amount in
effect under Code Section 415(b)(1)(A) for any such Plan Year. If no
officer earned that much, the top-paid officer will be considered highly
compensated. And unless they meet one of the other parts of the
definition, no more than 50 officers (or, if less than 10% of the
Employees down to a minimum of three Employees) are considered highly
compensated. In addition to those identified as highly compensated
based on prior year information, any 5% owner in the current year is
also in the highly compensated group. Individuals who meet one of the
other parts of the definition (having high earnings or being an officer)
for the current year, but not the prior year, are treated as highly
compensated only if they are among the 100 highest paid workers.
(c) Non-Highly Compensated Participant. Any Participant or
Former Participant who is neither a Highly Compensated Participant nor a Family
Member.
(d) Total Compensation. Compensation required to be taken
into account for purposes of Code Section 415, but including salary reduction
amounts excluded from income under Sections 125 and 402(g). For purposes of
calculating Total Compensation, all compensation required to be aggregated
under Code Section 414(b), (c) and (m) shall be taken into account but
compensation received prior to being eligible to participate in the Plan shall
not be taken into account.
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19.2 Salary Reduction Contributions.
(a) A Participant's 401(k) Contributions made shall not exceed
$9,500 for the taxable year of the Participant. This dollar limitation shall
be adjusted annually as provided in Code Section 415(d) pursuant to
Regulations. The adjusted limitation shall be effective as of January 1 of
each calendar year.
(b) In the event that the dollar limitation provided for in
Section 19.2(a) is exceeded, the Committee shall direct the Trustee to
distribute such excess amount, and any income (or loss) allocable to such
amount (as provided in (d) below), to the Participant not later than the first
April 15 following the close of the Participant's taxable year.
(c) In the event that a Participant is also a participant in
(1) another qualified cash or deferred arrangement (as defined in Code Section
401(k)), (2) a simplified employee pension (as defined in Code Section 408(k)),
or (3) a salary reduction arrangement (within the meaning of Code Section
3121(a)(5)(D)) and the elective deferrals, as defined in Code Section
402(g)(3), made under such other arrangement(s) and this Plan cumulatively
exceed $9,500 (or such amount adjusted annually as provided in Code Section
415(d) pursuant to Regulations) for such Participant's taxable year, the
Participant may, not later than March 1 following the close of his taxable
year, notify the Committee in writing of such excess and request that such
Participant's 401(k) Contribution under this Plan be reduced by an amount
specified by the Participant. Such amount shall then be distributed in the
same manner as provided in Section 11.2(b).
(d) The income (or loss) allocable to returnable contributions
shall equal the sum of the allocable gain or loss for the Plan Year and the
allocable gain or loss for the period between the end of the Plan Year and the
date of distribution. Income includes all earnings and appreciation,
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including such items as interest, dividends, rent, royalties, gains from the
sale of property, appreciation in the value of stocks, bonds, annuity and life
insurance contracts, and other property, without regard to whether such
appreciation has been realized.
The income (or loss) allocable to returnable contributions for
the Plan Year shall be determined by multiplying the income (or loss) for the
Plan Year allocable to employee contributions, matching contributions, and
amounts treated as matching contributions (whichever is applicable) by a
fraction. The numerator of the fraction is the amount of returnable
contributions made on behalf of the employee for the Plan Year. The
denominator of the fraction is the total account balance of the employee
attributable to employee contributions, matching contributions and amounts
treated as matching contributions as to the end of the Plan Year, reduced by
the gain allocable to such total amount for the Plan Year and increased by the
loss allocable to such total amount for the Plan Year. In lieu of this method,
any other reasonable method may be used by the Committee for a Plan Year.
19.3 Actual Deferral Percentage.
For purposes of this Section, "Actual Deferral Percentage" means,
with respect to the Highly Compensated Participant group and Non-Highly
Compensated Participant group for a Plan Year, the average of the ratios,
calculated separately for each Participant in such group, of the amount of
401(k) Contributions allocated to each Participant's 401(k) Account (unreduced
by distributions made pursuant to Sections 19.2(b) and 19.2(d) for such Plan
Year, to such Participant's Total Compensation for such Plan Year. For the
purpose of determining the "Actual Deferral Percentage" of a Highly Compensated
Participant, the 401(k) Contributions and Compensation of such Highly
Compensated Participant shall include the 401(k) Contributions and Compensation
of
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Family Members, and such affected Family Members shall be disregarded in
determining the "Actual Deferral Percentage" for the Non-Highly Compensated
Participant group.
19.4 Actual Deferral Percentage Test.
(a) Maximum Annual Allocation: For each Plan Year, the annual
allocation derived from 401(k) Contributions to a Highly Compensated
Participant's 401(k) Account shall satisfy one of the following tests:
(1) The "Actual Deferral Percentage" for the Highly
Compensated Participant group shall not be more than the "Actual
Deferral Percentage" of the Non-Highly Compensated Participant group
multiplied by 1.25, or
(2) The excess of the "Actual Deferral Percentage" for the
Highly Compensated Participant group over the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group shall not
be more than two percentage points. Additionally, the "Actual Deferral
Percentage" for the Highly Compensated Participant group shall not
exceed the "Actual Deferral Percentage" for the Non-Highly Compensated
Participant group multiplied by two. However, this alternative
limitation test cannot be used to satisfy both the Actual Deferral
Percentage test and the Contribution Percentage Test of Section 11.6 for
the same Plan Year except as may otherwise be provided by the
Regulations.
(b) For the purposes of Sections 19.4(a) and 19.5, a Highly
Compensated Participant and a Non-Highly Compensated Participant shall include
any Employee eligible to make a salary deferral election, whether or not such
salary deferral election was made.
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(c) For the purposes of this Section, if two or more plans
which include cash or deferred arrangements are considered one plan for the
purposes of Code Section 401(a)(4) or 410(b), the cash or deferred arrangements
included in such plans shall be treated as one arrangement.
(d) For the purposes of this Section, if a Highly Compensated
Participant is a member under two or more cash or deferred arrangements of the
Employer, all such cash or deferred arrangements shall be treated as one cash
or deferred arrangement for the purpose of determining the deferral percentage
with respect to such Highly Compensated Participant.
(e) Notwithstanding the above, the determination and treatment
of 401(k) Contributions and "Actual Deferral Percentage" of any Participant
shall satisfy such other requirements as may be prescribed by the Secretary of
the Treasury.
19.5 Adjustments as a Result of Actual Deferral Percentage
Test.
In the event that the initial allocations of the 401(k)
Contributions made pursuant to the Plan do not satisfy one of the tests set
forth in Section 19.4(a), the Committee shall adjust the 401(k) Contributions
of the Highly Compensated Participants pursuant to one of the options set forth
below:
(a) On or before the 15th day of the third month following the
end of each Plan Year, but in no event later than the close of the following
Plan Year, each Highly Compensated Participant, beginning with the Participant
having the highest "Actual Deferral Percentage," shall have the portion of
excess 401(k) (and any income allocable to such portion as provided in (d) of
Section 17.2) distributed to such Participant until one of the tests set forth
in Section 19.4(a) is satisfied. However, to the extent provided by
regulations, each affected Highly Compensated Participant may instead be given
the election to treat such excess contribution as an After-Tax
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Contribution, subject to the limitations of Section 19.6, and if elected the
excess amount (and any income allocable thereto as provided above) shall be
deemed to be an After-Tax Contribution and allocated to a subaccount in the
Participant's Participant After-Tax Account, but such amount shall remain
subject to the same restrictions on distributions as are applicable to 401(k)
Contributions.
(b) Within 30 days after the end of the Plan Year, the
Employer shall make a contribution on behalf of Non-Highly Compensated Members
in an amount sufficient to satisfy one of the tests set forth in Section
19.4(a). Such contribution shall be deemed a 401(k) Contribution and allocated
to the 401(k) Account of each Non-Highly Compensated Participant in the same
proportion that each Non-Highly Compensated Participant's 401(k) Contribution
for the year bears to the total 401(k) Contribution of all Non-Highly
Compensated Participants; provided, however, in no event shall such
contributions be subject to the hardship withdrawal provisions of the Plan.
19.6 Maximum Contribution Percentage.
(a) The "Actual Contribution Percentage" for the Highly
Compensated Participant group shall not exceed the greater of:
(1) 125% of such percentage for the Non-Highly Compensated
Participant group;
or
(2) the lesser of 200% of such percentage for the Non-Highly
Compensated Participant group, or such percentage for the Non-Highly
Compensated Participant group plus two percentage points or such lesser
amount determined pursuant to Regulations to prevent the multiple use of
this alternative limitation with respect to any Highly Compensated
Participant.
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(b) For the purposes of this Section and Section 19.7, "Actual
Contribution Percentage" for a Plan Year means, with respect to the Highly
Compensated Participant group and Non-Highly Compensated Participant group, the
average of the ratios (calculated separately for each Participant in each
group) of:
(1) the sum of the matching contributions and employee
contributions contributed under the Plan on behalf of each such
Participant for such Plan Year, to
(2) the Participant's Total Compensation for such Plan Year.
(c) The "Actual Contribution Percentage" for a Highly
Compensated Participant shall be determined by including matching
contributions, employee contributions and Compensation of Family Members.
Family Members shall be disregarded in determining the "Actual Contribution
Percentage" of Non-Highly Compensated Participants. In all cases the
determination and treatment of the "Actual Contribution Percentage" of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
(d) For purposes of this Section, if two or more plans of the
Employer to which matching contributions, Employee contributions, or elective
deferrals are made are treated as one plan for purposes of Code Section 410(b),
such plans shall be treated as one plan for purposes of this Section 19.6. In
addition, if a Highly Compensated Participant participates in two or more plans
described in Code Section 401(a) or arrangements described in Code Section
401(k) which are maintained by the Employer to which such contributions are
made, all such contributions shall be aggregated for purposes of this Section
19.6.
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(e) For purposes of Section 19.6(a) and 19.7, a Highly
Compensated Participant and Non-Highly Compensated Participant shall include
any Employee eligible to have employer matching contributions and employee
contributions allocated to his account for the Plan Year.
19.7 Adjustments for Excessive Contribution Percentage.
(a) In the event that the "Actual Contribution Percentage" for
the Highly Compensated Participant group exceeds the "Actual Contribution
Percentage" for the Non-Highly Compensated Participant group pursuant to
Section 19.6(a), the Committee (on or before the 15th day of the third month
following the end of the Plan Year, but in no event later than the close of the
following Plan Year) shall direct the Trustee to distribute to the Highly
Compensated Participant group the amount of "Excess Aggregate Contributions"
(and any income allocable to such contributions as provided in (d) of Section
19.2) or, if forfeitable, forfeit such "Excess Aggregate Contributions."
However, no forfeiture may be allocated to a Highly Compensated Participant
whose contributions are reduced pursuant to this Section. Notwithstanding
anything in the Plan to the contrary, an Employer matching contribution may be
distributed only if such contribution is an Excess Aggregate Contribution. It
may not be distributed merely because it relates to an excess deferral, an
excess contribution or an Excess Aggregate Contribution that is distributed.
In such cases, the related matching contribution shall be forfeited
notwithstanding anything in the Plan to the contrary.
(b) For the purposes of this Section, "Excess Aggregate
Contributions" means, with respect to any Plan Year, the excess of:
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(1) the aggregate amount of contributions pursuant to Sections
19.6(b)(1) and 19.6(c) actually made on behalf of the Highly Compensated
Participant group for such Plan Year, over
(2) the maximum amount of such contributions permitted under
the limitations of Section 19.6(a).
(c) The determination of the amount of "Excess Aggregate
Contributions" with respect to any Plan Year shall be made after:
(1) first determining the excess contributions pursuant to
Section 19.5(a), and
(2) then determining the excess annual allocations pursuant to
Section 19.4(a).
(d) The amount of Excess Aggregate Contributions for a Highly
Compensated Participant under the Plan will be determined in the following
manner: First, the actual contribution ratio (ACR) of the Highly Compensated
Participant with the highest ACR is reduced to the extent necessary to satisfy
the actual contribution percentage (ACP) test or cause such ratio to equal the
ACR of the Highly Compensated Participant with the next highest ratio. Second,
this process is repeated until the ACP test is satisfied. The amount of Excess
Aggregate Contributions for a Highly Compensated Participant is then equal to
the total of Employee, Employer matching and other contributions taken into
account for the ACP test minus the product of the Employee's contribution ratio
as determined above and the Employee's compensation.
In the case a Highly Compensated Participant whose ACR is
determined under the family aggregation rules, the determination of the amount
of Excess Aggregate Contributions shall be made as follows: the ACR is reduced
in accordance with the "leveling" method described above
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and the Excess Aggregate Contributions are allocated among the Family Members
in proportion to the contributions of each Family Member that have been
combined.
(e) To prevent the multiple use of the alternative methods of
compliance with the Average Deferral Percentage test and the ACP test, the
provision of sections 1.401(m)-2(b) of the Treasury Regulations are hereby
incorporated by reference to determine if such multiple use exists. If, after
application of such test, multiple use exists, the ACR shall be reduced (as
provided above) for all Highly Compensated Participants in the Plan.
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IN WITNESS WHEREOF, the Employers have caused their duly
authorized officers to execute this Plan amendment on this June 19,
1997, effective for all purposes as provided above.
VIRGINIA INDONESIA COMPANY
By: /s/ Charles M. Reimer
---------------------------------
Name: Charles M. Reimer
-------------------------------
Title: Chairman and CEO
------------------------------
VICO SERVICES, INC.
By: /s/ Paul Dusha
--------------------------------------
Name: Paul Dusha
---------------------------------------
Title: V.P. Human Resources & Administration
--------------------------------------
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ATTACHMENT A
VIRGINIA INDONESIA COMPANY
EMPLOYEE THRIFT AND RETIREMENT PLAN
INVESTMENT FUNDS
(AS OF JULY 1, 1997)
The following investment funds shall be maintained under the Plan's trust for
the investment of Accounts pursuant to Participant directions:
A. Mutual Funds
1. Fidelity Advisor Daily Money Market Portfolio
2. Strong Government Securities Fund
3. Fidelity Advisor High Yield Fund
4. Fidelity Advisor Balanced Fund
5. Fidelity Advisor Equity Income Fund
6. Fidelity Advisor Overseas Fund
7. Dreyfus Appreciation Fund
8. Fidelity Advisor Equity Growth Fund
9. Fidelity Advisor Growth Opportunities Fund
10. Stein Roe Capital Opportunities Fund
11. Fidelity Emerging Markets Fund
B. Company Stock Funds (effective August 1, 1997)
1. UTP Stock Fund -- consisting of shares of common stock, par value $.01, of
Union Texas Petroleum Holdings, Inc. ("UTP"). All distributions on such stock
shall be reinvested in such stock.
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The Trustee shall vote the shares of UTP stock in its discretion, but in the
event of a tender or exchange offer for such shares, the Trustee shall pass
through such election to each Participant to direct the Trustee as to how to
respond to such tender or exchange offer.
2. LASMO Stock Fund -- consisting of American Depositary Shares, evidenced by
American Depositary Receipts, each representing three ordinary shares, par
value .25p per share (the "ADRs") of LASMO plc. All distributions on such ADRs
shall be reinvested in such ADRs. The Trustee shall vote the ADRs in its
discretion, but in the event of a tender or exchange offer for such ADRs, the
Trustee shall pass through such election to each Participant to direct the
Trustee as to how to respond to such tender or exchange offer.
A-2
