As filed with the Securities and Exchange Commission on April 22, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
NUEVO ENERGY COMPANY
(Exact name of registrant as
specified in its charter)
DELAWARE 76-0304436
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1331 LAMAR, SUITE 1650, HOUSTON, TEXAS 77010
(Address, including zip code of registrant's principal executive offices)
NUEVO ENERGY COMPANY
DEFERRED COMPENSATION PLAN
(Full title of the plan)
ROBERT M. KING
1331 LAMAR, SUITE 1650, HOUSTON, TEXAS 77010
(Name and address of agent for service)
(713) 652-0706
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
TITLE OF AMOUNT PROPOSED MAXI- PROPOSED MAXI- AMOUNT OF
SECURITIES TO BE TO BE MUM OFFERING MUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share (1) 50,000(2) $33.84(2) $1,692,000 $499.14
- --------------------------------------------------------------------------------------------
</TABLE>
(1) Including preferred stock purchase rights issued under the Company's
Shareholder Rights Plan, dated March 5, 1997.
(2) Estimated solely for purposes of calculating the registration fee.
Pursuant to Rule 457(c) and 457(h), the offering price and registration fee is
computed on the basis of the average of the high and low prices reported on the
New York Stock Exchange on April 27, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent
or given to participants ("Plan Participants") of the Nuevo Energy Company
Deferred Compensation Plan ("Plan") as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "1933 Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Nuevo Energy Company (the
"Registrant") (Commission File No. 001-10537) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), are incorporated herein by reference:
(a) Annual Report on Form 10-K405 for the fiscal year ended December 31,
1997.
(b) The description of common stock contained in the Registrant's
Registration Statement on Form 8-A, filed with the Commission on May
15, 1990, including any future amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered under the
Plan have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware ("GCLD") empowers
the Registrant to indemnify, subject to the standards set forth therein, 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 by reason of the
fact that the person is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another entity. The GCLD further provides that the
Registrant has the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Registrant or
is or was serving at the request of the Registrant as a director, officer,
employee or agent of another entity against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Registrant would have the power to
indemnify such person against such liability under Section 145 of the GCLD.
The Registrant's Certificate of Incorporation and Bylaws allow for
indemnification by the Registrant of each director and officer of the Registrant
to the fullest extent permitted by applicable law.
The Registrant has purchased directors and officers liability insurance
policy which insures, among other things, (i) the officers and directors of the
Registrant from any claim arising out of an alleged wrongful act by such persons
while acting as directors and officers of the Registrant and (ii) the Registrant
to the extent that the Registrant has indemnified the directors and officers for
such loss.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
<S> <C>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
------ ----------- --------------- --------
4.1 Specimen Stock Certificate Exhibit 4.1 to the
Registrant's Registration
Statement on Form S-4
(Registration No. 33-33873)
5.1 Opinion of Counsel x
23.1 Consent of KPMG Peat Marwick x
23.2 Consent of Counsel Part of Exhibit 5.1
24 Power of Attorney Signature Page to
this Registration
Statement
99 Form of Nuevo Energy Company
Deferred Compensation Plan x
The Registrant undertakes to submit the Plan and any amendments thereto
to the Internal Revenue Service ("IRS") in a timely manner and has made or will
make all changes required by the IRS to qualify the plan.
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) 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:
(i) To include any prospectus required by Section 10(a)(3)
of the 1933 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective 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 (a)(1)(i) and (a)(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 the Commission by
the Registrant pursuant to Section 13 or Section 15 (d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
1933 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the 1934 Act (and where applicable, each filing of an
employee benefits plan's annual report pursuant to Section 15(d) of
the 1934 Act) that is incorporated by reference in the Registration
Statement shall be
-3-
<PAGE>
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.
(h) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referred to in Item 6,
or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 April 17, 1998.
NUEVO ENERGY COMPANY
(Registrant)
By: \s\ DOUGLAS L. FOSHEE
Douglas L. Foshee, Chairman of the Board,
President and Chief Executive Officer
(principal executive officer)
-5-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Douglas L. Foshee and Robert M. King, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, and any other regulatory authority, granting unto said
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, as fully to all intents and purposes as he might or
could do in person, thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
\s\ DOUGLAS L. FOSHEE Chairman of the Board, President April 17, 1998
Douglas L. Foshee and Chief Executive Officer
(principal executive officer)
Senior Vice President and Chief
\s\ ROBERT M. KING Financial Officer (principal April 17, 1998
Robert M. King accounting and financial officer)
\s\ ROBERT L. GERRY, III Director April 17, 1998
Robert L. Gerry, III
\s\ DAVID ROSS Director April 17, 1998
David Ross
\s\ GARY R. PETERSEN Director April 17, 1998
Gary R. Petersen
\s\ THOMAS D. BARROW Director April 17, 1998
Thomas D. Barrow
\s\ ISAAC ARNOLD, JR. Director April 17, 1998
Isaac Arnold, Jr.
\s\ JAMES T. HACKETT Director April 17, 1998
James T. Hackett
\s\ ROBERT H. ALLEN Director April 17, 1998
Robert H. Allen
\s\ ROBERT W. SHOWER Director April 17, 1998
Robert W. Shower
\s\ CHARLES M. ELSON Director April 17, 1998
Charles M. Elson
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
<S> <C>
4.1 Specimen Stock Certificate Exhibit 4.1 to the
Registrant's Registration
Statement on Form S-4
(Registration No. 33-33873)
5.1 Opinion of Counsel x
23.1 Consent of KPMG Peat Marwick x
23.2 Consent of Counsel Part of Exhibit 5.1
24 Power of Attorney Signature Page to
this Registration Statement
99 Form of Nuevo Energy Company
Deferred Compensation Plan x
</TABLE>
EXHIBIT 5.1
Nuevo Energy Company
1331 Lamar, Suite 1650
Houston, Texas 77010
Re: Distribution of up to 50,000 shares of Common Stock of Nuevo Energy
Company pursuant to the Company's Deferred Compensation Plan
Gentlemen:
We have acted as legal counsel for Nuevo Energy Company, a Delaware corporation
("Company"), in connection with the offer to certain key employees of the
Company and its subsidiaries of a total of up to 50,000 shares (the "Shares") of
the Company's common stock, $.01 par value per share ("Common Stock"), issuable
pursuant to the Company's Deferred Compensation Plan ("Plan"), which were made
available for distribution by the Board of Directors' adoption of the Plan on
July 15, 1997.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purposes of giving the opinion
hereinafter set forth, including the examination of executed or conformed
counterparts, or copies certified or otherwise proved to our satisfaction of the
following:
(i) the Certificate of Incorporation of the Company as filed with the
Secretary of State of Delaware on March 2, 1990, as amended;
(ii) the Bylaws of the Company as of the date of this opinion;
(iii) the Company's Registration Statement on Form S-8 covering the
Shares ("Registration Statement");
(iv) the Plan; and
(v) such other documents, corporate records, certificates and other
instruments as we have deemed necessary or appropriate for the
purpose of this opinion.
We have assumed the genuineness and authenticity of all signatures on
all original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation are prerequisites to
the effectiveness thereof.
<PAGE>
Nuevo Energy Company
April 22, 1998
Page 2
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
The Shares of Common Stock covered by the Registration Statement have
been duly authorized and when issued and sold in accordance with the Plan, will
be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement.
Very truly yours,
/s/ Butler & Binion, L.L.P.
BUTLER & BINION, L.L.P.
Houston, Texas
April 22, 1998
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Nuevo Energy Company:
We consent to incorporation by reference in the registration statement
(No. 333- ) on Form S-8 of Nuevo Energy Company of our report dated
February 17, 1998, relating to the consolidated balance sheets of Nuevo Energy
Company and subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows for each of the years in the three year period ended December 31, 1997,
which report appears in the December 31, 1997 annual report on Form 10-K of
Nuevo Energy Company.
/s/ KPMG Peat Marwick LLP
Houston, Texas
April 21, 1998
EXHIBIT 99
NUEVO ENERGY COMPANY
DEFERRED COMPENSATION PLAN
EFFECTIVE DATE: JULY 1, 1997
<PAGE>
NUEVO ENERGY COMPANY DEFERRED COMPENSATION PLAN
INDEX
SECTION I. PURPOSE OF PLAN, EFFECTIVE DATE AND DEFINITIONS.......1
1.1 NAME AND PURPOSE......................................................1
----------------
1.2 EFFECTIVE DATE........................................................1
--------------
1.3 DEFINITIONS...........................................................1
-----------
SECTION II. ADMINISTRATION OF THE PLAN..................4
2.1 COMMITTEE. ..........................................................4
---------
2.2 COMMITTEE DUTIES......................................................4
----------------
2.3 AGENT.................................................................5
-----
2.4 BINDING EFFECT OF DECISIONS...........................................5
---------------------------
2.5 INDEMNITY OF COMMITTEE................................................5
----------------------
SECTION III. ELIGIBILITY.........................5
SECTION IV. PARTICIPANT DEFERRALS....................6
4.1 ANNUAL SALARY DEFERRALS. ............................................6
-----------------------
4.2 CONTRACT BONUS DEFERRAL...............................................7
-----------------------
4.3 DISCRETIONARY BONUS DEFERRAL..........................................7
----------------------------
4.4 STOCK BONUS DEFERRAL..................................................7
--------------------
4.5 PARTICIPANT DEFERRAL ACCOUNT..........................................8
----------------------------
4.6 VESTING OF PARTICIPANT DEFERRAL ACCOUNT...............................8
---------------------------------------
SECTION V. EMPLOYER CONTRIBUTIONS....................8
5.1 AMOUNT OF EMPLOYER CONTRIBUTIONS......................................8
--------------------------------
5.2 EMPLOYER CONTRIBUTION ACCOUNT.........................................9
-----------------------------
5.3 VESTING OF EMPLOYER CONTRIBUTION ACCOUNT..............................9
----------------------------------------
SECTION VI. INVESTMENT..........................9
6.1 INVESTMENT ELECTIONS..................................................9
---------------------
6.2 EARNINGS.............................................................11
--------
-i-
<PAGE>
SECTION VII. DEFERRED COMPENSATION TRUST................11
7.1 EMPLOYER ESTABLISHMENT OF TRUST......................................11
-------------------------------
7.2 TRUST DOCUMENT.......................................................11
--------------
7.3 LIABILITY............................................................11
---------
7.4 PAYMENT OF BENEFITS..................................................11
-------------------
SECTION VIII. PAYMENTS AND BENEFITS...................11
8.1 RETIREMENT...........................................................11
----------
8.2 DEATH................................................................11
-----
8.3 DISABILITY...........................................................12
----------
8.4 REQUIRED LUMP SUM PAYMENT............................................12
-------------------------
8.5 TERMINATION OF EMPLOYMENT............................................12
-------------------------
8.6 EARNINGS PENDING DISTRIBUTION........................................12
-----------------------------
8.7 IN-KIND DISTRIBUTIONS................................................12
---------------------
8.8 BENEFICIARY DESIGNATION..............................................12
-----------------------
8.9 NO PARTICIPANT DESIGNATION...........................................13
--------------------------
SECTION IX. Offset for Obligations to Employer.............13
SECTION X Liability of Employer..........................13
SECTION XI. Change in Distribution Schedule................14
11.1 UNFORESEEABLE EMERGENCY..............................................14
-----------------------
11.2 MODIFICATION OF INSTALLMENT PAYMENTS.................................14
------------------------------------
11.3 EARLY WITHDRAWAL.....................................................14
----------------
SECTION XII. Benefit Plans.......................15
SECTION XIII. Rights of a Participant..................15
SECTION XIV. Amendment and Termination.................15
SECTION XV Determination of Benefits.................15
15.1 CLAIM................................................................15
-----
15.2 CLAIM DECISION.......................................................16
--------------
-ii-
<PAGE>
15.3 REQUEST FOR REVIEW...................................................16
------------------
15.4 REVIEW OF DECISION...................................................16
------------------
SECTION XVI. Notices................................17
SECTION XVII. General Provisions.....................17
17.1 CONTROLLING LAW......................................................17
---------------
17.2 CAPTIONS.............................................................17
--------
17.3 FACILITY OF PAYMENT..................................................17
-------------------
17.4 WITHHOLDING OF PAYROLL TAXES.........................................17
----------------------------
17.5 PROTECTIVE PROVISIONS................................................17
---------------------
17.6 TERMS................................................................17
-----
17.7 SUCCESSOR............................................................18
---------
SECTION XVIII Unfunded Status of Plan...............18
SECTION XIX Rights to Benefits....................18
SECTION XX. Board Approval.......................18
-iii-
<PAGE>
NUEVO ENERGY COMPANY DEFERRED COMPENSATION PLAN
SECTION I.
PURPOSE OF PLAN, EFFECTIVE DATE AND DEFINITIONS
I.1 NAME AND PURPOSE. The name of the plan is the Nuevo Energy Company
Deferred Compensation Plan (the "Plan"). Its purpose is to provide
certain key employees of the Employer (as defined herein) with the
opportunity to defer receipt of their compensation to a future date and
thereby reduce their current taxable income, earn an attractive tax-free
rate of growth on monies deferred, and accumulate funds which can be
used for retirement planning or other future financial needs.
I.2 EFFECTIVE DATE. The Plan shall be effective as of July 1, 1997
("Effective Date").
I.3 DEFINITIONS. For purposes of this Plan, the following phrases or terms
shall have the indicated meanings unless otherwise clearly apparent from
the context.
(a) "Aggregate Account" means the vested (pursuant to Sections 4.6
and 5.3) balance credited to a Participant's Participant
Deferral Account and Employer Contribution Account, including
contribution credits and deemed income, gains and losses (to the
extent realized as determined by the Employer, in its
discretion) credited thereto. A Participant's Aggregate Account
shall be determined as of the date of reference. A Participant's
Aggregate Account shall be utilized solely as a device for
measurement and determination of the amount to be paid to the
Participant pursuant to the Plan. A Participant's Aggregate
Account shall not constitute or be treated as a trust fund of
any kind.
(b) "Beneficiary" means the person, persons, trust or other entity
designated by the Participant, or as provided in Sections 8.7 and
8.8, to receive any benefits payable under the Plan. Any
Participant's beneficiary designation shall be made in a written
instrument filed with the Committee and shall become effective
only when received, accepted and acknowledged in writing by the
Committee.
(c) "Annual Salary" means a Participant's base salary designated
under the Employer's policies and records as base salary,
excluding overtime, Contract Bonuses, Discretionary Bonuses,
commissions, and other extraordinary compensation.
(d) "Board" means the Board of Directors of Nuevo Energy Company.
-1-
<PAGE>
(e) "Change of Control" means the occurrence of one of the following
events:
(i) individuals who were directors of Nuevo Energy Company
immediately prior to a Control Transaction shall cease,
within one year of such Control Transaction, to constitute
a majority of the Board of Directors of Nuevo Energy
Company (or of the Board of Directors of any successor to
Nuevo Energy Company or to all or substantially all of its
assets), or
(ii) any entity, person or Group other than Nuevo Energy
Company or a subsidiary of Nuevo Energy Company acquires
shares of Nuevo Energy Company in a transaction or series
of transactions that result in such entity, person or
Group directly or indirectly owning beneficially fifty-one
percent or more of the outstanding shares.
For purposes of this definition, "Control Transaction" shall be
(i) any tender offer for or acquisition of capital stock of Nuevo
Energy Company, (ii) any merger, consolidation, or sale of all or
substantially all of the assets of Nuevo Energy Company which has
been approved by the shareholders, (iii) any contested election
of directors of Nuevo Energy Company or (iv) any combination of
the foregoing which results in a change in voting power
sufficient to elect a majority of the Board of Directors of Nuevo
Energy Company. As used herein, "Group" shall mean persons who
act in concert as described in Sections 13(d)(3) and/or 14(d)(2)
of the Securities Exchange Act of 1934, as amended.
(f) "Code " means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means the Compensation Committee of the Board.
(h) "Company Stock" means shares of common stock of Nuevo Energy
Company, par value $0.01 per share.
(i) "Contract Bonus" means the amount of compensation received by a
Participant which is designated as a bonus in an employment
contract with a Participant and is not subject to the Employer's
discretion.
(j) "Discretionary Bonus" means the amount of compensation received
by a Participant which is designated as a bonus and is subject to
the discretion of the Employer.
-2-
<PAGE>
(k) "Employer" means Nuevo Energy Company and its successors and
assigns unless otherwise herein provided, or any other
corporation or business organization which, with the consent of
Nuevo Energy Company, or its successors or assigns, assumes the
Employer's obligations hereunder, or any other corporation or
business organization which agrees, with the consent of Nuevo
Energy Company, to become a party to the Plan.
(l) "Employer Contribution Account" means the account maintained on
the books of account of the Employer for each Participant
pursuant to Section V. Separate Employer Contribution Accounts
shall be maintained for each Participant. The Employer
Contribution Account shall be utilized solely as a device for
measurement and determination of the amount to be paid to the
Participant pursuant to the Plan. A Participant's Employer
Contribution Account shall not constitute or be treated as a
trust fund of any kind.
(m) "Fair Market Value" means the average (mean) of the reported
"high" and "low" sales prices for a share of Company Stock as
reported in The Wall Street Journal's NYSE-Composite
Transactions listing for such day (corrected for obvious
typographical errors), or if shares of Company Stock are not
reported in such listing, the average of the reported "high" and
"low" sales prices on the largest national securities exchange
(based on the aggregate dollar value of securities listed) on
which such shares are listed or traded, or if such shares are
not listed or traded on any national securities exchange, then
the average of the reported "high" and "low" sales prices for
such shares in the over-the-counter market, as reported on the
National Association of Securities Dealers Automated Quotations
System, or, if such prices shall not be reported thereon, the
average between the closing bid and asked prices so reported,
or, if such prices shall not be reported, then the average
closing bid and asked prices reported by the national Quotation
Bureau Incorporated, or, in all other cases, the value
established by the Committee in good faith.
(n) "Participant" means an eligible employee who elects to
participate in the Plan.
(o) "Participant Deferral Account" means the account maintained on
the books of account of the Employer for each Participant
pursuant to Section IV. Separate Participant Deferral Accounts
shall be maintained for each Participant. A Participant Deferral
Account shall be utilized solely as a device for measurement and
determination of the amount to be paid to the Participant
pursuant to the Plan. A Participant Deferral Account shall not
constitute or be treated as a trust fund of any kind.
-3-
<PAGE>
(p) "Plan Year" means the twelve (12) month period ending on the
December 31 of each year during which the Plan is in effect,
provided that the first Plan Year shall commence on July 1, 1997
and end on December 31, 1997.
(q) "Trust" means the trust fund established pursuant to the Plan.
(r) "Trustee" means the trustee named in the agreement establishing
the Trust and such successor and/or additional trustees as may be
named pursuant to the terms of the agreement establishing the
Trust.
SECTION II.
ADMINISTRATION OF THE PLAN
II.1 COMMITTEE. The Plan shall be administered by the Committee. All
decisions made by the Committee pursuant to the provisions of the Plan
shall be made by a majority of its members at a duly held regular or
special meeting or by written consent in lieu of any such meeting. A
majority of the Committee shall constitute a quorum and all decisions
made by the Committee pursuant to provisions of the Plan shall be made
by a majority of the Committee members present at any duly held regular
or special meeting at which a quorum is present or by the written
consent of a majority of the Committee members in lieu of any such
meeting.
II.2 COMMITTEE DUTIES. The Committee shall also have the authority to make,
amend, interpret, and enforce all appropriate rules and regulations for
the administration of this Plan and decide or resolve any and all
questions, including interpretations of this Plan, as may arise in
connection with the Plan. The Committee shall have the sole
discretionary authority and all powers necessary to accomplish these
purposes, including, but not by way of limitation, the right, power,
authority and duty:
(a) To make rules, regulations and procedures for the administration
of the Plan which are not inconsistent with the terms and
provisions hereof, provided such rules, regulations and
procedures are evidenced in writing and copies thereof are
delivered to the Employer.
(b) To construe and interpret all terms, provisions, conditions and
limitations of the Plan;
(c) To correct any defect, supply any omission, construe any
ambiguous or uncertain provisions, or reconcile any inconsistency
that may appear in the Plan, in such
-4-
<PAGE>
manner and to such extent as it shall deem expedient to carry the
Plan into effect;
(d) To employ and compensate such accountants, attorneys, investment
advisors and other agents and employees as the Committee may deem
necessary or advisable in the proper and efficient administration
of the Plan;
(e) To determine all questions relating to eligibility;
(f) To determine the amount, manner and time of payment of any
benefits hereunder and to prescribe procedures to be followed by
distributees in obtaining benefits;
(g) To prepare, file and distribute, in such manner as the Committee
determines to be appropriate, such information and material as is
required by the reporting and disclosure requirements of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"); and
(h) To make a determination as to the right of any person to receive
a benefit under the Plan.
II.3 AGENT. In the administration of this Plan, the Committee may, from time
to time, employ an agent and delegate to it such administrative duties
as it sees fit and may, from time to time, consult with counsel who may
be counsel to the Employer.
II.4 BINDING EFFECT OF DECISIONS. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final, conclusive and
binding upon all persons having any interest in the Plan and shall not
be subject to appeal except as provided in Section XV.
II.5 INDEMNITY OF COMMITTEE. The Employer shall indemnify and hold harmless
the members of the Committee against any and all claims, loss, damage,
expense or liability arising from any action or failure to act with
respect to this Plan, except in the case of gross negligence or willful
misconduct by the Committee or any of its members.
SECTION III.
ELIGIBILITY
For each Plan Year, an employee of the Employer shall be eligible to
participate in the Plan if the employee has been approved to participate in the
Plan by the Committee and has elected to make an "Elective Deferral" (as defined
in Code Section 402(g)(3)) in connection with
-5-
<PAGE>
the Nuevo Energy Company 401(k) Retirement Plan ("401(k) Plan") in an amount
equal to the maximum amount permitted under Code Section 402(g)(1) ("401(k) Plan
Deferral Requirement"). In no event shall any employee of the Employer become
eligible to participate in the Plan if such employee would not be considered a
member of a select group of management or highly compensated employees for
purposes of ERISA. A Participant is any eligible employee who elects to
participate in the Plan. Should a Participant cease to be considered a member of
a select group of management or highly compensated employees for purposes of
ERISA prior to termination of employment, disability, or death, the
Participant's account shall become immediately distributable in a lump sum
payment. If a Participant does not satisfy the 401(k) Plan Deferral Requirement
for any Plan Year, the Participant shall not be eligible to make any Participant
Deferrals (as described in Section IV) or receive any Employer Contributions (as
described in Section V) for such Plan Year.
SECTION IV.
PARTICIPANT DEFERRALS
IV.1 ANNUAL SALARY DEFERRALS.
(a) Any eligible employee may irrevocably elect, prior to the
beginning of each Plan Year, but no later than the November 30th
preceding the beginning of the Plan Year, to participate in the
Plan and defer receipt of all or part of the Annual Salary
earned during the Plan Year that would otherwise have been
payable to him or her. A new Participant may make an election
within 30 days after becoming eligible to defer all or part of
the Annual Salary earned for services performed in the balance
of the year remaining after the date the deferral election is
made. Such new Participant shall be deemed, for all other plan
purposes, to have made the deferral election on the immediately
preceding November 30th.
(b) The election will be made on a written form called a "Notice of
Election to Defer," signed by the Participant, and delivered to
the Committee. A separate election to defer all or part of an
Annual Salary shall be made for each Plan Year for which a
Participant is eligible to participate in the Plan.
Each deferral election will be applicable only to compensation
the Participant may earn for services performed in the future and
will be effective as of January 1 of the Plan Year specified,
provided that the signed Notice of Election to Defer form has
been received by the Committee by November 30th of the preceding
Plan Year.
(c) Nothing in this Section IV prevents a Participant from filing an
election not to
-6-
<PAGE>
participate for a Plan Year and thereafter filing another
election to participate in the Plan for any subsequent Plan Year.
(d) The Committee may, in its sole discretion upon the Participant's
written request, suspend the deferral of his or her Annual
Salary that would otherwise occur under the deferral election,
if it finds that the Participant has suffered a financial
hardship, as determined by the Committee in its sole discretion.
The suspension will take effect only with respect to deferrals
which have not already been credited to his or her Participant
Deferral Account. The Participant's written request for
suspension of Annual Salary deferrals must be filed with the
Committee on or before the 15th day preceding the regular payday
on which he or she desires the suspension to take effect.
IV.2 CONTRACT BONUS DEFERRAL.
(a) Any eligible employee may irrevocably elect, prior to the
beginning of each Plan Year, but no later than the November 30th
preceding the beginning of the Plan Year, to defer receipt of
all or part of the Contract Bonus earned during the Plan Year
that would otherwise have been payable to him or her. A new
Participant may make an election within 30 days after becoming
eligible to defer all or part of the Contract Bonus earned for
services performed in the balance of the year remaining after
the date the deferral election is made. Such new Participant
shall be deemed, for all other plan purposes, to have made the
deferral election on the immediately preceding November 30th.
(b) The election will be made on the "Notice of Election to Defer"
form, signed by the Participant, and delivered to the Committee.
A separate election to defer all or part of a Contract Bonus
shall be made by a Participant each Plan Year.
IV.3 DISCRETIONARY BONUS DEFERRAL.
(a) For each Plan Year, any eligible employee may irrevocably elect,
on or before November 30th, to defer receipt of all or part of
the Discretionary Bonus awarded during the Plan Year.
(b) The election will be made on the "Notice of Election to Defer"
form, signed by the Participant, and delivered to the Committee.
A separate election to defer all or part of a Discretionary Bonus
shall be made by a Participant each Plan Year.
IV.4 STOCK BONUS DEFERRAL.
-7-
<PAGE>
(a) Any eligible employee, who has been granted Company Stock
pursuant to a Bonus Stock Agreement under the Nuevo Energy
Company 1993 Stock Incentive Plan, as amended ("Bonus Stock
Agreement") may irrevocably elect prior to the "Vesting Date"
under such Bonus Stock Agreement to defer receipt of all or part
of Company Stock that otherwise would have been distributable to
him or her. The amount of the deferral pursuant to this Section
4.4(a) shall equal the Fair Market Value of a share of Company
Stock on the Vesting Date under the Bonus Stock Agreement
multiplied by the number of shares of Company Stock deferred.
(b) The election will be made on a written form called a "Notice of
Election to Defer Stock Bonus," signed by the Participant and
delivered to the Committee.
IV.5 PARTICIPANT DEFERRAL ACCOUNT. All deferrals made by a Participant
pursuant to this Section IV shall be credited to the Participant
Deferral Account which shall be a bookkeeping account established for
each Participant by the Employer. Such Participant Deferral Account
shall be unfunded and shall maintain all credits made to the Participant
Deferral Account pursuant to the Plan for the benefit of a Participant.
IV.6 VESTING OF PARTICIPANT DEFERRAL ACCOUNT. A Participant shall be 100%
vested in the elective deferrals credited to his or her Participant
Deferral Account along with any other credits made thereto pursuant to
this Plan.
SECTION V.
EMPLOYER CONTRIBUTIONS
V.1 AMOUNT OF EMPLOYER CONTRIBUTIONS. Each Plan Year, the Employer shall
treat as a contribution to the account of a Participant an amount equal
to the maximum amount of contribution of whatever kind the Employer
would have had to make to the 401(k) Plan for and on behalf of a
Participant for such Plan Year but for (i) the annual additions limit
for qualified benefits specified in Code Section 415(c), (ii) the annual
compensation limit for qualified benefits specified in Code Section
401(a)(17) and (iii) the matching contribution limits specified in Code
Section 401(m). Additionally, each Plan Year the Employer shall treat as
a contribution to the account of a Participant an amount equal to the
matching contribution the Employer would have been required to make to
the 401(k) Plan on behalf of the Participant if such Participant had not
been limited on the amount he or she could defer as an Elective Deferral
under the 401(k) Plan because of the (i) annual compensation limits for
qualified benefits specified in Code Section 401(a)(17), (ii) the
Elective Deferral limits specified in Code Section 401(k)(3)(A)(ii), and
(iii) the Elective Deferral limit specified in Code Section 402(g)(1)
(collectively, the "Elective
-8-
<PAGE>
Deferral Limits"), provided that, under this Plan, the Participant has
deferred into his or her Participant Deferral Account each Plan Year the
amount which would have been deferred as an Elective Deferral under the
401(k) Plan but for the Elective Deferral Limits.
V.2 EMPLOYER CONTRIBUTION ACCOUNT. All Employer contributions made pursuant
to this Section V shall be credited to a Participant's Employer
Contribution Account which shall be a bookkeeping account established
for each Participant by the Employer. The time when the Employer
contributions are credited to a Participant's Employer Contribution
Account shall be determined by the Committee, in its sole discretion.
Such Employer Contribution Account shall be unfunded and shall maintain
all credits made to the Employer Contribution Account pursuant to the
Plan for the benefit of a Participant.
V.3 VESTING OF EMPLOYER CONTRIBUTION ACCOUNT. A Participant shall vest in
all amounts credited to his or her Employer Contribution Account
pursuant to the vesting schedule maintained under the 401(k) Plan for
any contributions made to the 401(k) Plan by the Employer (which does
not include any employee "Elective Deferrals" as defined in Code Section
402(g)(3)); provided however, that upon the occurrence of a
Participant's Retirement (as defined in Section 8.1) or death or upon
the Participant becoming disabled (as stated in Section 8.3) or upon the
occurrence of an event which is a Change of Control, each Participant
shall be 100% vested in such Participant's Employer Contribution
Account.
SECTION VI.
INVESTMENT
VI.1 INVESTMENT ELECTIONS.
(a) Participants may choose to have their Participant Deferral
Account as having been invested in two types of investment
accounts. These are not mutually exclusive choices. A percentage
of a Participant's Participant Deferral Account may be allocated
to either account or the entire Participant Deferral Account may
be allocated to only one account. The two accounts are the:
(i) Phantom Stock Account. All Participant deferrals, which
are deferred into Plan, initially credited to a
Participant Deferral Account ("Initially Credited
Deferrals") and have been chosen by the Participant to
be invested in the Phantom Stock Account, will be
treated as if shares of Company Stock had been purchased
at a price equal to 75% of the Fair Market Value of such
Company Stock on the day credited. All Initially
-9-
<PAGE>
Credited Deferrals which have been invested in the
Phantom Stock Account shall remain as if invested in the
Phantom Stock Account for a two (2) year period
commencing on the date such Initially Credited Deferrals
are credited to a Participant's Deferral Account. After
such two year period, a Participant may redirect the
appropriate Initially Credited Deferrals into the
Flexible Investment Account or leave such deferrals in
the Phantom Stock Account, whereupon the re-direction of
the investment of such Participant deferrals between the
Phantom Stock Account and the Flexible Investment
Account may be made quarterly. The Phantom Stock Account
will be credited with cumulative appreciation and/or
depreciation based on the Fair Market Value of the
Company Stock. Dividend equivalents will be credited
quarterly and treated as if reinvested in Company Stock.
(ii) Flexible Investment Account. A Participant's Participant
Deferral Account will be treated as having been directed
by the Participant into various investment options, as
determined by the Committee. Investment options might
include different levels of risk and return such as
growth, balance asset and bond funds, fixed interest
accounts, etc. Initially, the investment options
available under the Flexible Investment Account will be
a money market investment and an equity index investment
selected by the Committee; provided that, the equity
index investment election is only available to certain
Participants who satisfy certain performance criteria as
determined by the Committee in its sole discretion.
Allocation of investment options with the Flexible
Investment Account shall be made in increments of not
less than 5% of a Participant's Deferral Account not
invested in the Phantom Stock Account. Participants may
re-direct investments in the various investment options
available in the Flexible Investment Account or redirect
to the Phantom Stock Account once quarterly; provided
that if a Participant redirects any investments from the
Flexible Investment Account to the Phantom Stock Account
then such investment in the Phantom Stock Account will
be treated as if shares of Company Stock had been
purchased at the Fair Market Value of such Company Stock
on the day re-directed. Returns on Flexible Investment
Account will be based upon the performance of the
Participant's investment options, less an administrative
fee, if any, as determined by the Committee.
(b) A Participant's Employer Contribution Account shall always be
treated as invested in the Phantom Stock Account; provided that,
the Employer Contribution
-10-
<PAGE>
Account invested in the Phantom Stock Account will be treated as
if shares of Company Stock had been purchased at a price equal to
the Fair Market Value of such Company Stock on the day
contributed by the Employer.
(c) The timing and calculation of the Phantom Stock Account
valuation (including the Earnings under
Section 6.2 below) and the Flexible
Investment Account valuation (including the
Earnings under 6.2 below) will be determined
by the Committee in its sole discretion.
VI.2 EARNINGS. A Participant's Aggregate Account shall include earnings
thereon accrued as a liability of the Employer to the Participant
pursuant to a Participant's election under this Section VI. The Phantom
Stock Account and Flexible Investment Account shall be utilized solely
as a device for the measurement and determination of the amount to be
paid a Participant pursuant to the Plan.
SECTION VII.
DEFERRED COMPENSATION TRUST
VII.1 EMPLOYER ESTABLISHMENT OF TRUST. Notwithstanding any other provision or
interpretation of this Plan, the Employer shall establish or adopt a
trust, which may fund obligations of other plans or arrangements of
deferred compensation adopted or established by the Employer, in which
to hold cash, insurance policies or other assets to be used to make or
reimburse the Employer for payments to the Participants of the benefits
under this Plan, provided, however, that the trust assets shall at all
times remain subject to the claims of general creditors of the Employer
in the event of the Employer's insolvency.
VII.2 TRUST DOCUMENT. Participants shall be notified when the trust is
established and a copy of the trust document will be made available to
them on request.
VII.3 LIABILITY. The Employer and not the trust shall be liable for paying the
benefits set forth in Section VIII. However, after its payment of
benefits pursuant to this Plan, the Employer may be reimbursed by the
trust for the after-tax cost of the benefit payment, upon proof of
payment and request for reimbursement.
VII.4 PAYMENT OF BENEFITS. Any payment of benefits made by the trust shall
satisfy the Employer's obligation to make such payment to the affected
Participant.
SECTION VIII.
PAYMENTS AND BENEFITS
-11-
<PAGE>
VIII.1 RETIREMENT. Except as provided in Section 8.4 below, the entire
Aggregate Account balance of a Participant shall be paid to a
Participant in annual installments over a ten (10) year period during
January of each year commencing during the first January following the
Participant's Retirement. "Retirement" means the Participant's
termination of employment with the Employer after either (i) attaining
age 65 or (ii) attaining age 55 and having provided service for the
Employer for at least 10 years.
VIII.2 DEATH. Except as provided in Section 8.4 below, the entire Aggregate
Account balance of a Participant shall be paid to the Beneficiary of
such Participant in annual installments over a ten (10) year period
during January of each year commencing on the first January following
the Participant's death.
VIII.3 DISABILITY. Except as provided in Section 8.4 below, upon a Participant
becoming disabled, the entire Aggregate Account balance of a Participant
shall be paid to the Participant in annual installments over a ten (10)
year period during January of each year commencing on the first January
1 following the date on which the Participant would have otherwise
attained Retirement. For purposes of this Plan, a Participant is
considered disabled if he or she is receiving benefits under the
Employer's group long-term disability plan.
VIII.4 REQUIRED LUMP SUM PAYMENT. Notwithstanding Sections 8.1, 8.2 and 8.3
above, if the entire Aggregate Account of a Participant upon a
Participant's Retirement, death or the Participant becoming disabled is
less than $50,000, the entire Aggregate Account balance of a Participant
shall be paid in one lump sum to the Participant or his or her
Beneficiary as soon as administratively possible within ninety (90) days
of the date of a Participant's Retirement or death or of the date a
Participant becomes disabled.
VIII.5 TERMINATION OF EMPLOYMENT. If a Participant's employment with the
Employer terminates for any reason other than the Participant's
Retirement or death or the Participant becoming disabled, the vested
Aggregate Account balance of a Participant shall be paid in one lump sum
as soon as administratively possible within ninety (90) days of the
Participant's termination of employment.
VIII.6 EARNINGS PENDING DISTRIBUTION. The Aggregate Account of any Participant
shall continue to accrue earnings as provided in Section VI until all
benefits are paid under this Section VIII.
VIII.7 IN-KIND DISTRIBUTIONS. Prior to the earliest to occur of any of the
events generating a payment under Sections 8.1, 8.2 and 8.3, a
Participant may elect subject to the Committee's approval, to have any
payment of benefits under this Plan be made in a form
-12-
<PAGE>
of investment which is equal in value to the appropriate payment amount.
Notwithstanding the foregoing, a Participant may elect, prior to the
earliest to occur of any of the events generating a payment under
Sections 8.1, 8.2 and 8.3, without Committee approval, to have any
portion of the shares of Company Stock credited to a Participant under
his or her Phantom Stock Account be paid in Company Stock to the
Participants in accordance with Sections 8.1, 8.2 and 8.3; provided,
however, that no payment of Company Stock to a Participant shall be made
in violation of any applicable securities laws.
VIII.8 BENEFICIARY DESIGNATION. Each Participant shall have the right, at any
time, to designate a Beneficiary or Beneficiaries (both principal as
well as contingent) to whom payment under this Plan shall be paid in the
event of Participant's death prior to complete distribution to
Participant of the benefits due Participant under the Plan.
VIII.9 NO PARTICIPANT DESIGNATION. If a Participant fails to designate a
Beneficiary as provided above, or if Participant's Beneficiary
designation is revoked by marriage, divorce, or otherwise without
execution of a new designation, or if all designated Beneficiaries
predecease the Participant or die prior to complete distribution of the
Participant's benefits, then Participant's designated Beneficiary shall
be deemed to be the person or persons surviving Participant in the first
of the following classes in which there is a survivor, share and share
alike:
(a) The surviving spouse;
(b) The Participant's children, except that if any of the children
predecease the Participant but leave issue surviving, then such
issue shall take by right of representation the share their
parent would have taken if living;
(c) The Participant's personal representative (executor or
administrator).
SECTION IX.
OFFSET FOR OBLIGATIONS TO EMPLOYER
If, at such time as the Participant becomes entitled to benefit payments
hereunder, the Participant has any debt, obligation or other liability
representing an amount owing to the Employer or an affiliate of the Employer,
and if such debt, obligation, or other liability is due and owing at the time
benefit payments are payable hereunder, the Employer may offset the amount owing
it or an affiliate against the amount of benefits otherwise distributable
hereunder.
SECTION X.
-13-
<PAGE>
LIABILITY OF EMPLOYER
Except as provided below, all liabilities created by this Plan for any Employer
participating in the Plan ("Participating Employer") shall be determined
separately and shall be paid to and held by the Trustee for the exclusive
benefit of the participant who is an employee of such Participating Employer and
the Beneficiaries of such Participant, subject to all the terms and conditions
of this Plan. No other Participating Employer shall be held liable for any
liabilities to be satisfied by any other Participant Employer. On the basis of
the information furnished by the Committee, the Trustee shall keep separate
books and records concerning the affairs of each Participating Employer
hereunder and as to the accounts and credits of the Participants of each
Participating Employer.
SECTION XI.
CHANGE IN DISTRIBUTION SCHEDULE.
XI.1 UNFORESEEABLE EMERGENCY. In the event of a Participant's "unforeseeable
emergency", the Participant may submit a written petition to the
Committee for an early withdrawal from his or her remaining Aggregate
Account balance. The Committee has sole discretion in the determination
of the merits of petitioner's "Unforeseeable Emergency" petition. Any
early withdrawal approved by the Committee is limited to the amount
necessary to meet the emergency.
Unforeseeable Emergency: An unforeseeable emergency is severe financial
hardship to the Participant resulting from (1) a sudden and unexpected
illness or accident of the Participant or of a dependent (as defined in
Code Section 152(a)) of the Participant, (2) loss of the Participant's
property due to casualty, (3) or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant.
The need to send a Participant's child to college or the desire to
purchase a home is not considered to be unforeseeable emergency.
XI.2 MODIFICATION OF INSTALLMENT PAYMENTS. If a Participant desires to modify
the installment payment schedule set forth in Section VIII, he or she
must submit a written petition to the Committee for such change. The
Committee has sole discretion in whether to permit the requested change.
XI.3 EARLY WITHDRAWAL. A Participant may receive the Participant's vested
Aggregate Account balance under the Plan upon submission of a written
request to and approval by the Committee at any time prior the
occurrence of any of the events generating a payment
-14-
<PAGE>
under Sections 8.1, 8.2 and 8.3, however, the benefit payable will be
reduced by 10% of the Participant's vested Aggregate Account balance.
Such distribution will constitute a complete distribution of the
Participant's Aggregate Account. If a Participant receives an Early
Withdrawal under this Section 11.3, the Participant's participation in
the Plan shall be suspended (so that no Participant deferrals pursuant
to Article IV and no Employer contributions pursuant to Article V will
be credited to a Participant's accounts under the Plan) for a period of
time comencing on the date of the Early Withdrawal and ending on the
last day of the Plan Year following the Plan Year in which such
withdrawal was made.
SECTION XII.
BENEFIT PLANS
The amount of each Participant's deferrals under Section IV shall not be deemed
to be compensation for the purpose of calculation of the amount of Participant
benefits or contributions under a pension plan or retirement plan (qualified
under Section 401(a) of the Code), the amount of life insurance payable under
any life insurance plan established or maintained by the Employer, or the amount
of any disability benefit payments payable under any disability plan established
or maintained by the Employer, except to the extent specifically provided in any
such plan.
SECTION XIII.
RIGHTS OF A PARTICIPANT
Establishment of the Plan shall not be construed as giving any Participant the
right to be retained in the Employer's service or employ or the right to receive
any benefits not specifically provided by the Plan.
Income deferred under this Plan will not be segregated from the general funds of
the Employer and no Participant will have any claim on any specific assets of
the Employer. To the extent that any Participant acquires a right to receive
benefits under this Plan, his or her right will be no greater than the right of
any unsecured general creditor of the Employer and is not assignable or
transferable except to his or her Beneficiary or estate as set forth in Sections
8.7 and 8.8.
SECTION XIV.
AMENDMENT AND TERMINATION
XIV.1 The Plan may be amended from time to time by resolution of the Committee
to comply with changes in the laws of the State and Federal Government
having jurisdiction over the Employer. The amendment of any one or more
provisions of the Plan shall not affect
-15-
<PAGE>
the remaining provisions of the Plan. No amendment shall reduce any
benefits accrued by any Participant prior to the amendment.
XIV.2 The Committee has the right to terminate the Plan at any time. Any
amount accumulated prior to the Plan's termination will continue to be
subject to the provisions of the Plan.
SECTION XV.
DETERMINATION OF BENEFITS
XV.1 CLAIM. A person who believes that he is being denied a benefit to which
he is entitled under the Plan (hereinafter referred to as a "Claimant")
may file a written request for such benefit with the Committee, setting
forth his claim. The request must be addressed to the Committee.
XV.2 CLAIM DECISION. Upon receipt of a claim, the Committee shall advise the
Claimant that a reply will be forthcoming within 90 days and shall, in
fact, deliver such reply within such period. The Committee may, however,
extend the reply period for an additional 90 days for reasonable cause.
If the claim is denied in whole or in part, the Committee shall adopt a
written opinion, using language calculated to be understood by the
Claimant, setting forth:
(a) The specific reason for such denial;
(b) The specific reference to pertinent provisions of this agreement
upon which such denial is based;
(c) A description of any additional material or information necessary
for the Claimant to perfect his claim and an explanation why such
material or such information is necessary.
(d) Appropriate information as to the steps to be taken if the
Claimant wishes to submit the claim for review; and
(e) The time limits for requesting a review.
XV.3 REQUEST FOR REVIEW. Within sixty (60) days after the receipt by the
Claimant of the written opinion described above, the Claimant may
request in writing that the Committee review its determination. Such
request must be addressed to the Committee. The Claimant or his duly
authorized representative may, but need not, review the pertinent
documents and submit issues and comments in writing for consideration by
the
-16-
<PAGE>
Committee. If the Claimant does not request a review of the
Committee's determination within such sixty (60) day period, he shall be
barred and estopped from challenging the Participating Employer's
determination.
XV.4 REVIEW OF DECISION. Within sixty (60) days after the Board of Directors'
receipt of a request for review, the Committee will review its
determinations. After considering all materials presented by the
Claimant, the Committee will render a written opinion, written in a
manner calculated to be understood by the Claimant, setting forth the
specific reasons for the decision and containing specific references to
the pertinent provisions of this Plan on which the decision is based. If
special circumstances require that the sixty (60) day time period be
extended, the Committee will so notify the Claimant and will render the
decision as soon as possible, but no later than one hundred twenty (120)
days after receipt of the request for review.
SECTION XVI.
NOTICES
Notices and elections under this Plan must be in writing. A notice or election
is deemed delivered if it is delivered personally or mailed by registered or
certified mail to the person at his or her last known business address.
SECTION XVII.
GENERAL PROVISIONS
XVII.1 CONTROLLING LAW. The provisions of this Plan shall be subject to
regulation under ERISA. To the extent not preempted by federal law, this
Plan shall be construed and interpreted according to the laws of the
State of Delaware.
XVII.2 CAPTIONS. The captions of Sections and paragraphs of this Plan are for
the convenience of reference only and shall not control or affect the
meaning or construction of any of its provisions.
XVII.3 FACILITY OF PAYMENT. Any amounts payable hereunder to any Participant
who is under legal disability or who, in the judgment of the Committee,
is unable to properly manage his or her financial affairs may be paid to
the legal representative of such Participant or may be applied for the
benefit of such Participant in any manner which the Committee may
select, and any such payment shall be deemed to be payment for such
Participant's account and shall be a complete discharge of all liability
of the Employer with respect to the amount so paid.
XVII.4 WITHHOLDING OF PAYROLL TAXES. To the extent required by the laws in
effect at the time
-17-
<PAGE>
compensation or deferred compensation payments are made, the Employer
shall withhold from such compensation, or from deferred compensation
payments made hereunder, any taxes required to be withheld for federal,
state or local government purposes.
XVII.5 PROTECTIVE PROVISIONS. A Participant will cooperate with the Employer by
furnishing any and all information requested by the Employer in order to
facilitate the payment of benefits hereunder, and by taking such
physical examinations as the Employer may deem necessary and taking such
other action as may be requested by the Employer.
XVII.6 TERMS. Whenever any words are used herein in the masculine, they shall
be construed as though they were used in the feminine in all cases where
they would so apply; and wherever any words are used herein in the
singular or in the plural, they shall be construed as though they were
used in the plural or the singular, as the case may be, in all cases
where they would so apply.
XVII.7 SUCCESSOR. The provisions of this Plan shall bind and inure to the
benefit of Nuevo Energy Company and its successors and assigns. The
terms successors and assigns as used herein shall include any corporate
or other business entity which shall, whether by merger, consolidation,
purchase or otherwise, acquire all or substantially all of the business
and assets of Nuevo Energy Company and successors of any such company or
other business entity.
SECTION XVIII.
UNFUNDED STATUS OF PLAN
It is the intention of the parties that the arrangements herein described be
unfunded for tax purposes and for purposes of Title I or ERISA. Plan
participants have the status of general unsecured creditors of the Employer. The
Plan constitutes a mere promise by the Employer to make payments in the future.
The Employer shall establish the Trust(s) with the Trustee, pursuant to such
terms and conditions as are set forth in the Trust agreement(s) to be entered
into between the Employer and the Trustee. The Trust is intended to be treated
as a "grantor" trust under the Code and the Regulations thereunder, as amended
from time to time, and the establishment of the Trust is not intended to cause
Participants to realize current income on amounts contributed thereto, and the
Trust shall be so interpreted.
SECTION XIX.
RIGHTS TO BENEFITS
Subject to Section IX, a Participant's rights to benefit payments under the Plan
are not subject in
-18-
<PAGE>
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of the participant or the
participant's beneficiaries.
SECTION XX.
BOARD APPROVAL
All Participant deferrals and Employer contributions credited to the accounts of
a Participant under this Plan are subject to the approval of this Plan by the
Board on or before December 31, 1997. If the approval by the Board does not
occur on or before December 31, 1997, any and all deferrals made by a
Participant on or before December 31, 1997 pursuant to Section IV shall be
returned to a Participant without any earnings thereon. In connection therewith,
any shares of Company Stock deferred pursuant to Section 4.4 shall be
distributed by the Employer to the Participant in-kind.
IN WITNESS WHEREOF, the Employer has caused this Plan to be executed this
___ th day of___________ , 19__ .
NUEVO ENERGY COMPANY
--------------------------
-19-
<PAGE>
FIRST AMENDMENT TO THE
NUEVO ENERGY COMPANY
DEFERRED COMPENSATION PLAN
W I T N E S S E T H:
WHEREAS, Nuevo Energy Company (the "Employer") presently maintains the
Nuevo Energy Company Deferred Compensation Plan (the "Plan") which became
effective on July 1, 1997; and
WHEREAS, the Employer, pursuant to Section 14.1 of the Plan, has the
right to amend the Plan, from time to time, subject to certain limitations.
NOW, THEREFORE, in order to make a revision to conform the language of
the Plan with the intent of the Employer, the Plan is hereby amended in the
following manner:
1. Effective July 1, 1997, paragrah 6.1(a)(i) of the Plan is hereby
amended in its entirety to read as follows:
6.1 INVESTMENT ELECTIONS.
(a) Participants may choose to have their Participant Deferral
Account as having been invested in two types of investment
accounts. These are not mutually exclusive choices. A
percentage of a Participant's Participant Deferral Account
may be allocated to either account or the entire
Participant Deferral Account may be allocated to only one
account. The two accounts are the:
(i) Phantom Stock Account. All Participant
deferrals, which are deferred into Plan,
initially credited to a Participant Deferral
Account ("Initially Credited Deferrals") and
have been chosen by the Participant to be
invested in the Phantom Stock Account, will be
treated as if shares of Company Stock had been
purchased at a price equal to 75% of the Fair
Market Value of such Company Stock on the day
credited; provided, however, that any
Participant deferrals made under Section 4.4 of
the Plan which have been chosen by the
Participant to be invested in the Phantom Stock
Account, will be treated as if shares of
<PAGE>
Company Stock had been purchased at a price
equal to 100% of the Fair Market Value of such
Company Stock on the day credited. All Initially
Credited Deferrals which have been invested in
the Phantom Stock Account shall remain as if
invested in the Phantom Stock Account for a two
(2) year period commencing on the date such
Initially Credited Deferrals are credited to a
Participant's Deferral Account. After such two
year period, a Participant may redirect the
appropriate Initially Credited Deferrals into
the Flexible Investment Account or leave such
deferrals in the Phantom Stock Account,
whereupon the re-direction of the investment of
such Participant deferrals between the Phantom
Stock Account and the Flexible Investment
Account may be made quarterly. The Phantom Stock
Account will be credited with cumulative
appreciation and/or depreciation based on the
Fair Market Value of the Company Stock. Dividend
equivalents will be credited quarterly and
treated as if reinvested in Company Stock.
IN WITNESS WHEREOF, the Employer has executed this First Amendment as
of___________ , 1997.
NUEVO ENERGY COMPANY
By:_________________________________
"Employer"
<PAGE>
SECOND AMENDMENT TO THE
NUEVO ENERGY COMPANY
DEFERRED COMPENSATION PLAN
W I T N E S S E T H:
WHEREAS, Nuevo Energy Company (the "Employer") presently maintains the
Nuevo Energy Company Deferred Compensation Plan (the "Plan") which became
effective on July 1, 1997; and
WHEREAS, the Employer, pursuant to Section 14.1 of the Plan, has the
right to amend the Plan, from time to time, subject to certain limitations.
NOW, THEREFORE, in order to make a revision to conform the language of
the Plan with the intent of the Employer, the Plan is hereby amended in the
following manner:
1. Effective August , 1997, Section 8.5 of the Plan is hereby amended in
its entirety to read as follows:
8.5 TERMINATION OF EMPLOYMENT. If a Participant's employment with
the Employer terminates for any reason other than the Participant's
Retirement or death or the Participant becoming disabled, the vested
Aggregate Account balance of a Participant shall be paid in one lump sum
as soon as administratively possible within one hundred eighty (180)
days of the Participant's termination of employment.
IN WITNESS WHEREOF, the Employer has executed this Second Amendment as
of August , 1997.
NUEVO ENERGY COMPANY
By:_________________________________
"Employer"
