AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 2003
RANGE RESOURCES CORPORATION
AND THE GUARANTORS NAMED IN FOOTNOTE (1) BELOW
(Exact name of Co-Registrants as specified in their charters)
DELAWARE 1311 81-0557240
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer Identification No.)
of incorporation or organization) Classification Code Number)
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777 MAIN STREET, SUITE 800 RODNEY L. WALLER
FORT WORTH, TEXAS 76102 RANGE RESOURCES CORPORATION
(817) 870-2601 SENIOR VICE PRESIDENT AND ACTING CHIEF FINANCIAL OFFICER
(Address, including ZIP Code, 777 MAIN STREET, SUITE 800
and telephone number, including area code, FORT WORTH, TEXAS 76102
of Registrant's principal executive offices) (817) 870-2601
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
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If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER NOTE(2) PRICE(2) REGISTRATION FEE
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7 3/8% Senior Subordinated Notes due 2013.... $100,000,000 100% $100,000,000 $8,090.00
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Guarantees of 7 3/8% Senior Subordinated
Notes due 2013(3).......................... -- -- -- --
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(1) Range Energy I, Inc., a Delaware corporation (I.R.S. Employer Identification No. 52-1996729), Range HoldCo, Inc., a Delaware corporation (I.R.S. Employer Identification No. 34-1903004), Range Production Company, a Delaware corporation (I.R.S. Employer Identification No. 75-1722213), Range Energy Ventures Corporation, a Delaware corporation (I.R.S. Employer Identification No. 76-0405733), Gulfstar Energy, Inc., a Delaware corporation (I.R.S. Employer Identification No. 76-0328570), and Range Energy Finance Corporation, a Delaware corporation (I.R.S. Employer Identification No. 76-0504079).
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f)(2) under the Securities Act of 1933, as amended (the "Securities Act").
(3) The 7 3/8% Senior Subordinated Notes due 2013 are guaranteed by the Co-Registrants named in footnote (1) on a senior subordinated basis. No separate consideration will be paid in respect of the guarantees. Pursuant to Rule 457(n) under the Securities Act, no separate filing fee is required for the guarantees.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT OFFER THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO ACQUIRE THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS SUBJECT TO COMPLETION, DATED SEPTEMBER 4, 2003
[RANGE RESOURCES LOGO]
OFFER TO EXCHANGE UP TO
$100,000,000 OF 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
FOR
$100,000,000 OF 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
TERMS OF THE EXCHANGE OFFER
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- We are offering to exchange up to $100,000,000 of our outstanding 7 3/8% Senior Subordinated Notes due 2013, which we refer to herein as the "old notes," for new notes with substantially identical terms that have been registered under the Securities Act.
- We will exchange all outstanding old notes that you validly tender and do not validly withdraw before the exchange offer expires for an equal principal amount of new notes.
- There is no public market for the old notes or the new notes.
- We are incurring all expenses associated with this registration.
- The exchange offer expires at 5:00 p.m., New York City time, on ,
2003, unless extended. We do not currently intend to extend the exchange
offer.
- Tenders of old notes may be withdrawn at any time prior to the expiration of
the exchange offer in accordance with the procedures set forth herein.
- We believe that the exchange of new notes for old notes should not be an exchange or otherwise a taxable event to a holder for United States federal income tax purposes.
- We will not receive any proceeds from the exchange offer.
TERMS OF THE NEW 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013 OFFERED IN
THE EXCHANGE OFFER
MATURITY
- The new notes will mature on July 15, 2013.
INTEREST
- Interest on the new notes is payable on January 15 and July 15 of each year,
beginning January 15, 2004.
- Interest will accrue from July 21, 2003.
REDEMPTION
- Prior to July 15, 2006, we may redeem up to 35% of the original aggregate
principal amount of the new notes at a redemption price of 107.375% of the
principal amount, plus accrued and unpaid interest, with the proceeds of
certain equity offerings.
- On or after July 15, 2008, we may redeem some or all of the new notes pursuant to the redemption prices specified under the caption "Description of the New Notes -- Optional Redemption."
CHANGE OF CONTROL
- Subject to certain conditions, if we experience a change of control, we may be
required to repurchase some or all of the new notes at a purchase price of
101% of the principal amount, plus accrued and unpaid interest.
RANKING
- The new notes and the guarantees are our and our guarantor subsidiaries'
general, unsecured obligations and are subordinated to our and our
subsidiaries' senior debt and will be subordinated to future senior debt that
we and our subsidiaries are permitted to incur under our senior credit
facilities and the indenture governing the new notes.
Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. The letter of transmittal accompanying this prospectus states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where such old notes were acquired by the broker-dealer as a result of market-making activities or other trading activities. We and the guarantors have agreed that, starting on the expiration date of this exchange offer and ending on the close of business 180 days after the expiration date, we and the guarantors will make this prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS , 2003
TABLE OF CONTENTS
Forward Looking Statements.................................. i Prospectus Summary.......................................... 1 Risk Factors................................................ 7 Exchange Offer.............................................. 14 Use of Proceeds............................................. 21 Capitalization.............................................. 22 Description of the New Notes................................ 23 United States Federal Income Tax Considerations............. 55 Plan of Distribution........................................ 55 Legal Matters............................................... 56 Experts..................................................... 56 Reserve Engineers........................................... 57 Where You Can Find More Information......................... 57 Incorporation by Reference.................................. 57 Letter of Transmittal....................................... A-1 |
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain forward-looking statements. These statements include statements relating to our plans, strategies, objectives, expectations, intentions and adequacy of resources and are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
When used herein, the words "anticipate," "believe," "estimate," "expect," "intend," "will" and similar expressions as they relate to us or our management are intended to identify such statements as "forward-looking statements." Such statements reflect the current views of us and our management with respect to future events and are subject to certain risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, our actual results, performance or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements.
Our actual results may differ materially from the results predicted or from any other forward-looking statements made by, or on behalf of, us and reported results should not be considered as an indication of future performance. The potential risks and uncertainties include, among other things, production variance from expectations, volatility of oil and gas prices, hedging results, the need to develop and replace reserves, the substantial capital expenditures required to fund operations, exploration risks, environmental risks, uncertainties about estimates of reserves, competition, litigation, government regulation, political risks, our ability to implement our business strategy, costs and results of drilling new projects, mechanical and other inherent risks associated with oil and gas production, weather, availability of drilling equipment and changes in interest rates, as well as the other risks described under "Risk Factors" in this prospectus.
Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, events, levels of activity, performance, or achievements. We do not assume responsibility for the accuracy and completeness of the forward-looking statements. We do not intend to update any of the forward-looking statements after the date of this prospectus to conform them to actual results.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus and the documents incorporated into it by reference. Because it is a summary, it does not contain all of the information that you should consider before deciding to exchange your old notes for new notes. You should read the entire prospectus and the documents incorporated by reference carefully, including the section entitled "Risk Factors" and the financial statements and related notes to those financial statements incorporated by reference in this prospectus
Unless otherwise noted herein, as used in this prospectus, "we," "our," "ours," "us" and the "Company" refer to Range Resources Corporation and its subsidiaries, except where the context otherwise requires or as otherwise indicated.
OUR COMPANY
We are an independent oil and natural gas company engaged in the acquisition, development and exploration of oil and natural gas properties, primarily in the Southwest, Gulf Coast, including the Gulf of Mexico, and Appalachian regions of the United States. We seek to increase our reserves and production primarily through development drilling, exploitation projects, exploration and acquisitions. We also provide financing to smaller oil and natural gas producers through our wholly-owned subsidiary, Independent Producer Finance, or IPF, through the purchase of overriding royalty interests.
We have a geographically diverse asset base. The Southwest division's properties are located in the Permian Basin of West Texas, the East Texas Basin, the Anadarko Basin of western Oklahoma and the Texas Panhandle. Our Gulf Coast division operates properties onshore in Texas, Louisiana and Mississippi and holds an interest in approximately 40 offshore platforms in the shallow waters of the Gulf of Mexico. Through a 50%-owned joint venture, Great Lakes Energy Partners L.L.C., or Great Lakes, we operate in the Appalachian and Michigan Basins.
In 2001, we set out to build a more technically-driven organization. We are now pursuing a growth strategy that balances the exploitation of our inventory of lower risk development drilling locations with higher potential exploration projects and a complementary acquisition effort. Through this approach, we seek to manage risk in every aspect of our business while generating attractive returns.
Our principal executive offices are located at 777 Main Street, Suite 800, Fort Worth, Texas 76102. Our telephone number is (817) 870-2601.
RECENT DEVELOPMENTS
Completion of 7 3/8 senior subordinated notes offering and redemption of outstanding 8 3/4% senior subordinated notes due 2007. On July 21, 2003, we completed the private placement of $100 million of 7 3/8% senior subordinated notes due 2013. The net proceeds of the offering were used to redeem all of our outstanding 8 3/4% senior subordinated notes due 2007 and to repay approximately $26 million of amounts outstanding under our senior credit facility. The 8 3/4% notes were called at 102.9167% of their principal amount, plus accrued interest. The aggregate redemption price, including the premium, was approximately $71 million.
THE EXCHANGE OFFER
On July 21, 2003, we completed a private offering of the old notes. We entered into a registration rights agreement with the initial purchasers in the private offering in which we agreed, among other things, to deliver this prospectus to you and to use our reasonable best efforts to consummate the exchange offer within 210 days following the date of the original issuance of the old notes. The following is a summary of the exchange offer.
Exchange Offer................ We are offering to exchange new notes for old
notes.
Expiration date............... The exchange offer will expire at 5:00 p.m. New
York City time, on , 2003, unless we
decide to extend it. We do not currently intend
to extend the exchange offer. The exchange
offer must remain open for not less than thirty
days (or longer if required by applicable law)
after the date notice of the exchange offer is
mailed to holders of the old notes.
Condition to the exchange
offer......................... The registration rights agreement does not
require us to accept old notes for exchange if
the exchange offer or the making of any
exchange by a holder of the old notes would
violate any applicable law or interpretation of
the staff of the Securities and Exchange
Commission. The tender of a minimum aggregate
principal amount of old notes is not a
condition to the exchange offer.
Procedures for tendering old
notes......................... To participate in the exchange offer, you must
follow the automated tender offer program, or
ATOP, procedures established by The Depository
Trust Company, or DTC, for tendering notes held
in book-entry form. The ATOP procedures require
that the exchange agent receive, prior to the
expiration date of the exchange offer, a
computer-generated message known as an "agent's
message" that is transmitted through ATOP and
that DTC confirm that:
- DTC has received instructions to exchange
your notes; and
- you agree to be bound by the terms of the
letter of transmittal.
For more information on tendering your old
notes, please refer to the sections in this
prospectus entitled "Exchange Offer -- Terms of
the Exchange Offer," "-- Procedures for
Tendering" and "-- Book-Entry Transfer."
Guaranteed Delivery
Procedures.................... None.
Withdrawal of tenders......... You may withdraw your tender of old notes at
any time prior to the expiration date. To
withdraw, you must submit a notice of
withdrawal to the exchange agent using ATOP
procedures before 5:00 p.m., New York City
time, on the expiration date of the exchange
offer.
Acceptance of old notes and
delivery of new notes......... If you fulfill all conditions required for
proper acceptance of old notes, we will accept
any and all old notes that you properly tender
in the exchange offer on or before 5:00 p.m.,
New York City time, on the expiration date. We
will return any old notes that we do not accept
for exchange to you without expense as
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promptly as practicable after the expiration
date. We will also deliver the new notes as
promptly as practicable after the expiration
date. Please refer to the section in this
prospectus entitled "Exchange Offer -- Terms of
the Exchange Offer."
Resale........................ We believe that the new notes issued pursuant
to the exchange offer may be offered for
resale, resold and otherwise transferred by you
(unless you are an "affiliate" of ours within
the meaning of Rule 405 under the Securities
Act) without compliance with the registration
and prospectus delivery provisions of the
Securities Act so long as you are acquiring the
new notes in the ordinary course of your
business and you have not engaged in, do not
intend to engage in, and have no arrangement or
understanding with any person to participate
in, a distribution of the new notes.
Each participating broker-dealer that receives
new notes for its own account under the
exchange offer for old notes that were acquired
by the broker-dealer as a result of
market-making or other trading activity must
acknowledge that it will deliver a prospectus
in connection with any resale of the new notes.
See "Plan of Distribution."
Any holder of old notes who:
- is our affiliate;
- does not acquire new notes in the ordinary
course of its business; or
- exchanges old notes in the exchange offer
with the intention to participate, or for
the purpose of participating, in a
distribution of new notes
must, in the absence of an exemption, comply
with the registration and prospectus delivery
requirements of the Securities Act in
connection with the resale of the new notes.
Fees and Expenses............. We will bear all expenses related to the
exchange offer.
Please refer to the section in this prospectus
entitled "Exchange Offer -- Fees and Expenses."
Use of proceeds............... The issuance of the new notes will not provide
us with any new proceeds. We are making this
exchange offer solely to satisfy our
obligations under our registration rights
agreement.
Consequences of failure to
exchange old notes............ If you do not exchange your old notes in this
exchange offer, you will no longer be able to
require us to register the old notes under the
Securities Act except in the limited
circumstances provided under our registration
rights agreement. In addition, you will not be
able to resell, offer to resell or otherwise
transfer the old notes unless we have
registered the old notes under the Securities
Act, or unless you resell, offer to resell or
otherwise transfer them under an exemption from
the registration requirements of, or in a
transaction not subject to, the Securities Act.
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Tax consideration............. We believe that the exchange of new notes for
old notes should not be an exchange or
otherwise a taxable event to a holder for
United States federal income tax purposes.
Please read "United States Federal Income Tax
Considerations."
Exchange agent................ We have appointed Bank One, National
Association as exchange agent for the exchange
offer. You should direct questions, requests
for assistance and requests for additional
copies of this prospectus (including the letter
of transmittal) to the exchange agent at the
following address: Bank One, National
Association, c/o Bill Barber, Mail Code
TX1-1306, 420 Throckmorton, 4th Floor, Fort
Worth, Texas 76102. Eligible institutions may
make requests by facsimile at 817-884-4560.
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TERMS OF THE NEW NOTES
The new notes will be identical to the old notes except that the new notes are registered under the Securities Act and will not have restrictions on transfer, registration rights or provisions for additional interest. The new notes will evidence the same debt as the old notes, and the same indenture will govern the new notes and the old notes. When we use the term "notes," we mean the new notes together with the old notes.
The following summary contains basic information about the new notes and is not intended to be complete. It does not contain all the information that is important to you. For a more complete understanding of the new notes, please refer to the section of this document entitled "Description of the New Notes."
Issuer........................ Range Resources Corporation.
Notes offered................. $100 million aggregate principal amount of
7 3/8% Senior Subordinated Notes due 2013.
Maturity Date................. July 15, 2013.
Interest Payment Dates........ January 15 and July 15 of each year, commencing
on January 15, 2004.
Mandatory redemption.......... None.
Optional redemption........... Except as otherwise described below, the new
notes will not be redeemable at our option
prior to July 15, 2008. Thereafter, the new
notes will be subject to redemption at our
option, in whole or in part, at the redemption
prices set forth under the heading "Description
of the New Notes -- Optional Redemption," plus
accrued and unpaid interest thereon to the
applicable redemption date. In addition, prior
to July 15, 2006, we may, at our option, on any
one or more occasions, redeem up to 35% of the
original aggregate principal amount of the
notes at a redemption price equal to 107.375%
of the principal amount thereof, plus accrued
and unpaid interest, if any, to the redemption
date, with all or a portion of the net proceeds
of public sales of equity interests of the
Company; provided that at least 65% of the
original aggregate principal amount of the
notes remains outstanding immediately after the
occurrence of such redemption. See "Description
of the New Notes -- Optional Redemption."
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Change of control............. Upon a "change of control," you as a holder of
the notes will have the right to require us to
make an offer to repurchase all or a portion of
the notes at a purchase price of 101% of their
aggregate principal amount, plus accrued and
unpaid interest, if any, to the date of
repurchase. Our credit agreement prohibits us
from repurchasing any notes pursuant to a
change of control offer prior to the repayment
in full of the senior debt under our credit
agreement. Therefore, if a change of control
were to occur, there can be no assurance that
we or the subsidiary guarantors will have the
financial resources or be permitted under the
terms of our or their indebtedness to
repurchase the notes. If any "event of default"
occurs, the trustee or holders of at least 25%
in principal amount of the notes then
outstanding may declare the principal of and
the accrued and unpaid interest on such notes
to be due and payable immediately. However,
such repayment would be subject to the
subordination provisions in our indenture. See
"Description of the New Notes -- Subordination"
and "-- Repurchase at the Option of
Holders -- Change of control," and "-- Events
of Default and Remedies."
Ranking....................... The new notes will be general, unsecured
obligations, will be subordinated in right of
payment to our senior debt, which includes
borrowings under our credit agreement and any
other permitted indebtedness which does not
expressly provide that it is on a parity with
or subordinated in right of payment to the new
notes. The new notes and the old notes will
constitute a single class of securities under
the indenture. See "Capitalization" and
"Description of the New
Notes -- Subordination."
Subsidiary guarantees......... Our payment obligations under the new notes
will be jointly, severally and unconditionally
guaranteed on a senior subordinated basis by
each of our restricted subsidiaries and any
future restricted subsidiaries. The guarantees
will be subordinated to senior debt of the
subsidiary guarantors to the same extent and in
the same manner as the new notes are
subordinated to senior debt. See "Description
of the New Notes -- Guarantees."
Certain covenants............. The new notes will be issued pursuant to the
same indenture as the old notes. This indenture
contains certain covenants that will, among
other things, limit the ability of us and our
restricted subsidiaries to incur additional
indebtedness and issue disqualified stock, pay
dividends, make distributions, make
investments, make certain other restricted
payments, enter into certain transactions with
affiliates, dispose of certain assets, incur
liens securing indebtedness of any kind (other
than permitted liens) and engage in mergers and
consolidations. See "Description of the New
Notes -- Certain Covenants."
Transfer Restrictions; Absence
of a Public Market for the New
Notes......................... The new notes generally will be freely
transferable, but will also be new securities
for which there is no existing market. There
can be no assurance as to the development or
liquidity of any market for trading. We do not
intend to apply for a listing of the new notes
on any securities exchange or any automated
dealer quotation system.
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RISK FACTORS
You should carefully consider all of the information in this prospectus. In particular, you should evaluate the specific risk factors set forth under "Risk Factors," beginning on page 7, for a discussion of risks involved with an investment in the new notes.
RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------------- ----------
1998 1999 2000 2001 2002 2003
---- ---- ---- ---- ---- ----------
Ratio of earnings to fixed charges........ (4.6) 0.5 1.9 1.5 1.9 2.5
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For purposes of calculating the ratio of earnings to fixed charges:
- "fixed charges" represent interest expense, amortization of debt costs and the portion of rental expense representing the interest factor, and
- "earnings" represent the aggregate of income from continuing operations and fixed charges.
For the years ended December 31, 1999 and 1998, earnings were inadequate to cover fixed charges by $22.8 million and $229.6 million, respectively.
RISK FACTORS
You should carefully consider and evaluate all the information included or incorporated by reference in this prospectus, including the risks described below, before you decide to participate in the exchange offer. Our business, financial condition and results of operations could be materially adversely affected by any of these risks. The trading price of the new notes could decline, and you may lose all or part of your investment. The risks described below are not the only ones facing our company. Additional risks not presently known to us or that we currently deem immaterial, individually or in the aggregate, may also impair our business operations.
This prospectus and the documents incorporated by reference also contain forward-looking statements that involve risks and uncertainties, some of which are described in the documents incorporated by reference in this prospectus. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of various factors, including the risks and uncertainties faced by us described below or incorporated by reference in this prospectus.
RISKS RELATED TO OUR BUSINESS
OIL AND NATURAL GAS PRICES ARE VOLATILE, AND AN EXTENDED DECLINE IN PRICES
WOULD HURT OUR PROFITABILITY AND FINANCIAL CONDITION.
The oil and natural gas industry is cyclical, and prices for oil and natural gas are volatile. Historically, the industry has experienced severe downturns characterized by oversupply and/or weak demand. For example, in 1998 and early 1999, oil and natural gas prices fell, which contributed to the substantial losses we reported in those years. By early 2001, oil and natural gas prices reached levels above their historical norm. Prices declined in the second half of 2001 but have risen since mid-2002.
Many factors affect oil and natural gas prices including general economic conditions, consumer preferences, discretionary spending levels, interest rates and the availability of capital to the industry. Decreases in oil and natural gas prices from current levels could adversely affect our revenues, net income, cash flow and proved reserves. Significant and prolonged price decreases could have a material adverse effect on our operations and limit our ability to fund capital expenditures. Without the ability to fund capital expenditures, we may be unable to replace production.
HEDGING TRANSACTIONS MAY LIMIT OUR POTENTIAL GAINS AND INVOLVE OTHER RISKS.
To manage our exposure to price risk, we enter into hedging arrangements from time to time with respect to a portion of our future production. The goal of these hedges is to limit volatility and increase the predictability of cash flow. These transactions may limit our potential gains if oil and natural gas prices were to rise over the price established by the hedge. For example, at December 31, 2002, we were party to hedging arrangements covering 64.6 Bcf and 1.6 million barrels of oil. The hedges' fair value was a pre-tax loss of $32.9 million. Due to additional hedging activity and rising prices, the fair value of these hedges on June 30, 2003 was a pre-tax loss of $82.0 million. If oil and natural gas prices continue to rise, we could be subject to margin calls.
In addition, hedging transactions may expose us to the risk of financial loss in certain circumstances, including instances in which:
- our production is less than expected;
- the counterparties to our futures contracts fail to perform under the contracts; or
- a sudden, unexpected event materially impacts oil or natural gas prices.
INFORMATION CONCERNING OUR RESERVES AND FUTURE NET RESERVE ESTIMATES IS
UNCERTAIN.
There are numerous uncertainties inherent in estimating quantities of proved oil and natural gas reserves and their values, including many factors beyond our control. Estimates of proved undeveloped
reserves, which comprise a significant portion of our reserves, are by their nature uncertain. The reserve data included or incorporated by reference in this prospectus is estimated. Although we believe these estimates are reasonable, actual production, revenues and reserve expenditures will likely vary from estimates, and these variances could be material.
The accuracy of any reserves estimate is a function of the quality of available data, engineering and geological interpretation and judgment, assumptions used regarding quantities of oil and natural gas in place, recovery rates and future prices for oil and natural gas. Actual prices, production, development expenditures, operating expenses and quantities of recoverable oil and natural gas reserves will vary from those assumed in our estimates, and such variances may be material. Any variance in the assumptions could materially affect the estimated quantity value of the reserves.
For example, in 1997 and 1998, we consummated several large acquisitions which proved extremely disappointing. Production from the acquired properties fell more rapidly than anticipated and further development results were far below the results we had originally projected. The poor production performance of these properties resulted in material downward reserve revisions.
IF OIL AND NATURAL GAS PRICES DECREASE OR EXPLORATION EFFORTS ARE UNSUCCESSFUL, WE MAY BE REQUIRED TO TAKE ADDITIONAL WRITEDOWNS OF OUR OIL AND NATURAL GAS PROPERTIES.
In the past, we have been required to write down the carrying value of our oil and natural gas properties, and there is a risk that we will be required to take additional writedowns in the future. This could occur when oil and natural gas prices are low or if we have substantial downward adjustments to our estimated proved reserves, increases in our estimates of development costs or deterioration in our exploration results.
Accounting rules require that the carrying value of oil and natural gas properties be periodically reviewed for possible impairment. "Impairment" is recognized when the book value of a proven property is greater than the expected undiscounted future cash flows from that property and on acreage when the assessment of fair value is less than the book value. We may be required to write down the carrying value of a property based on oil and natural gas prices at the time of the impairment review, as well as a continuing evaluation of development results, production data, economics and other factors. While an impairment charge which reflects our long-term ability to recover on a prior investment does not impact cash or cash flow from operating activities, it reduces our earnings and increases our leverage ratios.
For example, based primarily on the poor performance of certain properties acquired in 1997 and 1998 and significantly lower oil and natural gas prices, we recorded impairments of $215.0 million in 1998 and $29.9 million in 1999. At year-end 2001, we also recorded an impairment of $31.1 million due to year-end prices.
OUR BUSINESS IS SUBJECT TO OPERATING HAZARDS AND ENVIRONMENTAL REGULATIONS
THAT COULD RESULT IN SUBSTANTIAL LOSSES OR LIABILITIES.
Oil and natural gas operations are subject to many risks, including well blowouts, craterings, explosions, uncontrollable flows of oil, natural gas or well fluids, fires, formations with abnormal pressures, pipeline ruptures or spills, pollution, releases of toxic gas and other environmental hazards and risks. If any of these hazards occur, we could sustain substantial losses as a result of:
- injury or loss of life;
- severe damage to or destruction of property, natural resources and equipment;
- pollution or other environmental damage;
- clean-up responsibilities;
- regulatory investigations and penalties; and/or
- suspension of operations.
Our current and former operations are subject to numerous and increasingly strict federal, state and local laws, regulations and enforcement policies relating to the environment. We may incur significant costs and liabilities in complying with existing or future environmental laws, regulations and enforcement policies and may incur costs arising out of property damage or injuries to employees and other persons. These costs may result from our current and former operations and even may be caused by previous owners of property we own or lease. Any past, present or future failure by us to completely comply with environmental laws, regulations and enforcement policies could cause us to incur substantial fines, sanctions or liabilities for cleanup costs or other damages. Incurrence of those costs or damages could reduce or eliminate funds available for exploration, development or acquisitions or cause us to incur losses.
We maintain insurance against some, but not all, of these potential risks and losses. We may elect not to obtain insurance if we believe that the cost of available insurance is excessive relative to the risks presented. In addition, pollution and environmental risks generally are not fully insurable. If a significant accident or other event occurs that is not fully covered by insurance, it could have a material adverse affect on our financial condition and results of operations.
WE ARE SUBJECT TO FINANCING AND INTEREST RATE EXPOSURE RISKS.
Our business and operating results can be harmed by factors such as the availability and cost of capital, increases in interest rates or a reduction in credit rating. These changes could cause our cost of doing business to increase, limit our ability to pursue opportunities and place us at a competitive disadvantage. For example, at June 30, 2003, a portion of our borrowings, held through our Great Lakes joint venture, were subject to interest rate swap agreements, which were above market, and therefore, increased our interest expense.
OUR INDUSTRY IS HIGHLY COMPETITIVE.
We face competition in every aspect of our business, including, but not limited to, acquiring reserves and leases, obtaining goods, services and employees needed to operate and manage our business, and marketing oil and natural gas. Competitors include multinational oil companies, independent production companies and individual producers and operators. Many of our competitors have greater financial and other resources than we do.
THE OIL AND NATURAL GAS INDUSTRY IS SUBJECT TO EXTENSIVE REGULATION.
The oil and natural gas industry is subject to various types of regulations in the United States by local, state and federal agencies. Legislation affecting the industry is under constant review for amendment or expansion, frequently increasing our regulatory burden. Numerous departments and agencies, both state and federal, are authorized by statute to issue rules and regulations binding on participants in the oil and natural gas industry. Compliance with such rules and regulations often increases our cost of doing business and, in turn, decreases our profitability. Generally these burdens do not appear to affect us to any greater or lesser extent than other companies in the oil and natural gas industry with similar types and quantities of properties in the same areas of the country.
ACQUISITIONS BY US ARE SUBJECT TO THE RISKS AND UNCERTAINTIES OF EVALUATING
RECOVERABLE RESERVES AND POTENTIAL LIABILITIES.
We could be subject to significant liabilities related to acquisitions by us. It generally is not feasible to review in detail every individual property included in an acquisition. Ordinarily, a review is focused on higher valued properties. However, even a detailed review of all properties and records may not reveal existing or potential problems, nor will it permit us to become sufficiently familiar with the properties to assess fully their deficiencies and capabilities. We do not always inspect every well we acquire, and environmental problems, such as groundwater contamination, are not necessarily observable even when an inspection is performed.
For example, in 1997 and 1998, we consummated a series of acquisitions which proved unsuccessful. Since the date of these acquisitions, the production results relating to these acquired properties have indicated that the potential of the acquired properties was far below the level that our engineering and geological review, as well as a review by one of our independent petroleum engineering firms, had initially suggested.
OUR SUCCESS DEPENDS ON KEY MEMBERS OF OUR MANAGEMENT AND OUR ABILITY TO ATTRACT AND RETAIN EXPERIENCED EXPLORATIONISTS AND OTHER PROFESSIONAL PERSONNEL.
Our success is highly dependent on our senior management personnel, none of which are currently subject to an employment contract. The loss of one or more of these individuals could have a material adverse effect on our business. Furthermore, competition for experienced explorationists and engineers is intense. If we cannot retain our current personnel or attract additional experienced personnel, our ability to compete could be adversely affected.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO REPLACE RESERVES THAT WE PRODUCE.
Because the rate of production from oil and natural gas properties generally declines as reserves are depleted, our future success depends upon our ability to find or acquire additional oil and natural gas reserves that are economically recoverable. Except to the extent that we acquire additional properties containing proved reserves, conduct successful exploration and development activities or, through engineering studies, identify additional behind-pipe zones or secondary recovery reserves, our proved reserves will decline materially as reserves are produced. Future oil and natural gas production is, therefore, highly dependent upon our level of success in acquiring or finding additional reserves that are economically recoverable. We cannot assure you that we will be able to find and develop or acquire additional reserves at an acceptable cost.
A PORTION OF OUR BUSINESS IS SUBJECT TO SPECIAL RISKS RELATED TO OFFSHORE
OPERATIONS GENERALLY AND IN THE GULF OF MEXICO SPECIFICALLY.
Offshore operations are subject to a variety of operating risks specific to the marine environment, such as capsizing, collisions and damage or loss from hurricanes or other adverse weather conditions. These conditions can cause substantial damage to facilities and interrupt production. As a result, we could incur substantial liabilities that could reduce or eliminate the funds available for exploration, development or leasehold acquisitions, or result in loss of equipment and properties.
Production of reserves from reservoirs in the Gulf of Mexico generally declines more rapidly than from reservoirs in many other producing regions of the world. This results in recovery of a relatively higher percentage of reserves from properties in the Gulf of Mexico during the initial few years of production. As a result, reserve replacement needs from new prospects are greater and require us to incur significant capital expenditure to replace production.
NEW TECHNOLOGIES MAY CAUSE OUR CURRENT EXPLORATION AND DRILLING METHODS TO
BECOME OBSOLETE.
The oil and natural gas industry is subject to rapid and significant advancements in technology, including the introduction of new products and services using new technologies. As competitors use or develop new technologies, we may be placed at a competitive disadvantage, and competitive pressures may force us to implement new technologies at a substantial cost. In addition, competitors may have greater financial, technical and personnel resources that allow them to enjoy technological advantages and may in the future allow them to implement new technologies before we can. We cannot be certain that we will be able to implement technologies on a timely basis or at a cost that is acceptable to us. One or more of the technologies that we currently use or that we may implement in the future may become obsolete, and we may be adversely affected.
OUR BUSINESS DEPENDS ON OIL AND NATURAL GAS TRANSPORTATION FACILITIES, SOME OF
WHICH ARE OWNED BY OTHERS.
The marketability of our oil and natural gas production depends in part on the availability, proximity and capacity of pipeline systems owned by third parties. The unavailability of or lack of available capacity on these systems and facilities could result in the shut-in of producing wells or the delay or discontinuance of development plans for properties. Although we have some contractual control over the transportation of our product, material changes in these business relationships could materially affect our operations. Federal and state regulation of oil and natural gas production and transportation, tax and energy policies, changes in supply and demand, pipeline pressures, damage to or destruction of pipelines and general economic conditions could adversely affect our ability to produce, gather and transport oil and natural gas.
RISKS RELATED TO THE EXCHANGE OFFER AND THE NEW NOTES
IF YOU DO NOT PROPERLY TENDER YOUR OLD NOTES, YOU WILL CONTINUE TO HOLD UNREGISTERED OLD NOTES AND YOUR ABILITY TO TRANSFER OLD NOTES WILL BE ADVERSELY AFFECTED.
We will only issue new notes in exchange for old notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the old notes and carefully follow the instructions on how to tender your old notes. Neither we nor the exchange agent are required to tell you of any defects or irregularities with respect to your tender of the old notes.
If you do not exchange your old notes for new notes pursuant to the exchange offer, the old notes you hold will continue to be subject to the existing transfer restrictions. In general, you may not offer or sell the old notes except under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not plan to register old notes under the Securities Act. Further, if you continue to hold any old notes after the exchange offer is consummated, you may not be able to sell the old notes because there will be fewer old notes outstanding.
OUR SIGNIFICANT INDEBTEDNESS COULD LIMIT OUR ABILITY TO SUCCESSFULLY OPERATE OUR BUSINESS AND PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE NEW NOTES.
We are substantially leveraged, and our exploration and development program will require substantial capital resources, estimated to range from $100 to $130 million per year over the next three years, and the operation of our existing operations will also require ongoing capital expenditures.
The degree to which we are leveraged could have other important consequences to you, including the following:
- we must dedicate a substantial portion of our cash flows from operations to the payment of our indebtedness, reducing the funds available to pay principal and interest on the new notes and for our operations;
- a portion of our borrowings are at variable rates of interest, making us vulnerable to increases in interest rates;
- we may be more highly leveraged than some of our competitors, which could place us at a competitive disadvantage;
- our degree of leverage may make us more vulnerable to a downturn in our business or the economy generally;
- the terms of our existing credit arrangements and the indenture governing the new notes contain numerous financial and other restrictive covenants;
- our debt level could limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and
- we may have difficulties borrowing money in the future.
DESPITE OUR CURRENT LEVELS OF INDEBTEDNESS WE STILL MAY BE ABLE TO INCUR SUBSTANTIALLY MORE DEBT. THIS COULD FURTHER INCREASE THE RISKS DESCRIBED ABOVE.
We may be able to incur substantial additional indebtedness in the future. The terms of the indenture relating to the new notes do not prohibit us from doing so. As of June 30, 2003, our senior credit facility would permit additional borrowings of $59.4 million and all of those borrowings would be senior to the new notes. If new debt is added to our current debt levels, the related risks that we now face could intensify. See "Capitalization."
ANY FAILURE TO MEET OUR DEBT OBLIGATIONS COULD HARM OUR BUSINESS, FINANCIAL
CONDITION AND RESULT OF OPERATIONS.
If our cash flow and capital resources are insufficient to fund our debt obligations, we may be forced to sell assets, seek additional equity or debt capital or restructure our debt. In addition, any failure to make scheduled payments of interest and principal on our outstanding indebtedness would likely result in a reduction of our credit rating, which could harm our ability to incur additional indebtedness on acceptable terms. Our cash flow and capital resources may be insufficient for payment of interest on and principal of our debt in the future, including payments on the new notes, and any such alternative measures may be unsuccessful or may not permit us to meet scheduled debt service obligations, which could cause us to default on our obligations and impair our liquidity.
YOUR RIGHT TO RECEIVE PAYMENTS ON THE NEW NOTES IS SUBORDINATED TO THE RIGHTS OF OUR SENIOR INDEBTEDNESS AND EFFECTIVELY SUBORDINATED TO THE RIGHTS OF EXISTING AND FUTURE CREDITORS OF ANY SUBSIDIARIES THAT ARE NOT GUARANTORS ON THE NEW NOTES.
Holders of our senior indebtedness will have claims that are prior to your claims as holders of the new notes. In the event of any distribution of our assets in any foreclosure, dissolution, winding-up, liquidation, reorganization, or other bankruptcy proceeding, holders of senior indebtedness will have prior claim to all of our assets. Holders of the new notes will participate ratably with all holders of our senior subordinated indebtedness that is deemed to be of the same class as the new notes, based upon the respective amounts owed to each holder or creditor, in our remaining assets. In any of the foregoing events, we cannot assure you that there will be sufficient assets to pay amounts due on the new notes. As a result, holders of new notes may receive less, ratably, than holders of senior indebtedness.
As of June 30, 2003, we had total senior indebtedness of approximately $184.1 million, including our 50% portion of indebtedness owed by our Great Lakes joint venture under its credit facility. We may incur additional indebtedness in the future under the terms of the indenture.
We conduct substantially all of our operations through our subsidiaries and some of our subsidiaries do not guarantee the new notes. In addition, we may be able to designate one or more subsidiaries in the future as unrestricted subsidiaries. As a result, holders of the new notes will be effectively subordinated to the indebtedness and other liabilities of any such subsidiaries, including trade creditors. Therefore, in the event of the insolvency or liquidation of an unrestricted subsidiary, following payment by such subsidiary of its liabilities, such subsidiary may not have sufficient remaining assets to make payments to us as a shareholder or otherwise. In the event of a default by any such subsidiary under any credit arrangement or other indebtedness, its creditors could accelerate such debt, prior to such subsidiary distributing amounts to us that we could have used to make payments on the new notes.
WE MAY NOT BE ABLE TO REPURCHASE THE NEW NOTES.
You may require us to repurchase all or a portion of your new notes on certain dates or in the event of a change in control. We may not have enough funds to pay the repurchase price on a purchase date. Our existing and any future credit agreements or other debt agreements to which we become a party may provide that our obligation to repurchase the new notes would be an event of default under such agreement. As a result, we may be restricted or prohibited from repurchasing the new notes. If we are prohibited from repurchasing the new notes, we could seek the consent of our then-existing lenders to
repurchase the new notes or we could attempt to refinance the borrowings that contain such prohibition. If we are unable to obtain a consent or refinance the debt, we could not repurchase the new notes. Our failure to repurchase tendered new notes would constitute a default under the indenture and might constitute a default under the terms of other indebtedness that we incur.
The term "change in control" is limited to certain specified transactions and may not include other events that might adversely affect our financial condition. Our obligation to repurchase the new notes upon a change in control would not necessarily afford holders of new notes protection in the event of a highly leveraged transaction, reorganization, merger or similar transaction involving us.
THE NEW NOTES MAY NOT BE RATED OR MAY RECEIVE A LOWER RATING THAN ANTICIPATED.
We believe it is unlikely that the new notes will be rated. However, if one or more rating agencies rates the new notes and assigns the new notes a rating lower than the rating expected by investors, or reduces their rating in the future, the market price of the new notes would be harmed.
YOU MAY FIND IT DIFFICULT TO SELL YOUR NEW NOTES.
You may find it difficult to sell your new notes because an active trading market for the new notes may not develop. There is no existing trading market for the new notes issued in this exchange offer. We do not know the extent to which investor interest will lead to the development of a trading market or how liquid that market might be. As a result, the market price of the new notes could be adversely affected.
EXCHANGE OFFER
We sold the old notes on July 21, 2003 pursuant to a purchase agreement dated July 16, 2003, by and among us and the initial purchasers named therein. The old notes were subsequently offered by the initial purchasers to qualified institutional buyers pursuant to Rule 144A under the Securities Act and outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act.
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the issuance of the old notes, we entered into a registration rights agreement under which we agreed to:
- within 90 days after the issue date of the old notes, file a registration statement with the Securities and Exchange Commission with respect to a registered offer to exchange the old notes for new notes of ours having terms substantially identical in all material respects to the old notes except with respect to transfer restrictions;
- use our best efforts to cause the registration statement to be declared effective under the Securities Act within 180 days after the issue date of the old notes;
- use our reasonable best efforts to consummate the exchange offer within 210 days after the issue date of the old notes;
- keep the exchange offer open for not less than 30 days (or longer if required by applicable law) after the date notice of the exchange offer is mailed to the holders of the old notes; and
- to file a shelf registration for the resale of the old notes if we cannot consummate the exchange offer within the time period listed above and certain other circumstances described in this prospectus.
For each old note tendered to us pursuant to the exchange offer, we will issue to the holder of such old note a new note having a principal amount equal to that of the surrendered old note. Interest on each new note will accrue from the last date upon which we paid interest on the old note, unless no interest has been paid on the old note, in which case, interest shall be paid from the original issuance date of the old note.
Under existing interpretations of the staff of the Securities and Exchange Commission issued to third parties, the new notes will be freely transferable by holders other than our affiliates after the exchange offer without further registration under the Securities Act if the holder of the new notes represents to us in the exchange offer that it is acquiring the new notes in the ordinary course of its business, that it has no arrangement or understanding with any person to participate in the distribution of the new notes and that it is not our affiliate, as such terms are interpreted by the Securities and Exchange Commission; provided, however that broker-dealers receiving new notes in the exchange offer will have a prospectus delivery requirement with respect to resales of such new notes. The staff of the Securities and Exchange Commission has taken the position in interpretations issued to third parties that participating broker-dealers may fulfill their prospectus delivery requirements with respect to new notes (other than a resale of an unsold allotment from the original sale of the old notes) with the prospectus contained in the registration statement covering the new notes. Each broker-dealer that receives new notes for its own account in exchange for old notes, where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. See "Plan of Distribution."
Under the registration rights agreement, we are required to allow participating broker-dealers and other persons, if any, with similar prospectus delivery requirements to use the prospectus contained in the registration statement in connection with the resale of the new notes for 180 days following the effective date of such registration statement (or such shorter period during which participating broker-dealers are required by law to deliver such prospectus).
A holder of old notes (other than certain specified holders) who wishes to exchange old notes for new notes in the exchange offer will be required to represent that any new notes to be received by it will be acquired in the ordinary course of its business and that at the time of the commencement of the exchange offer it has no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the new notes and that it is not our "affiliate," as defined in Rule 405 of the Securities Act, or if it is an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable.
In the event that:
- any change of law or in applicable interpretations thereof by the staff of the Securities and Exchange Commission do not permit us to effect an exchange offer;
- for any other reason the exchange offer is not consummated within 210 days after the issue date of the old notes;
- any holder of old notes, other than the initial purchasers, notifies us prior to the 20th business day following the consummation of the exchange offer it is prohibited by law or the applicable interpretations of the staff of the Securities and Exchange Commission from participating in the exchange offer;
- in the case of any holder of old notes who participates in the exchange offer, such holder does not receive new notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such holders as an affiliate of ours within the meaning of the Securities Act); or
- an initial purchaser so requests with respect to old notes or private exchange notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution;
then we will, at our cost, use our reasonable best efforts to file and use our reasonable best efforts to have declared effective a shelf registration statement covering resales of the old notes on or prior to the later of 180 calendar days after the issue date of the old notes or 90 days after the shelf registration statement is required to be filed with the Securities and Exchange Commission.
We will use our reasonable best efforts to keep the shelf registration statement effective until two years after the issue date of the old notes, subject to certain exceptions. We will, if we file a shelf registration statement, among other things, provide to each holder for whom such shelf registration statement was filed copies of the prospectus which is a part of the shelf registration statement, notify each such holder when the shelf registration statement has become effective and take certain other actions as are required to permit unrestricted resales of the old notes or the new notes, as the case may be. A holder selling such old notes or new notes pursuant to the shelf registration statement generally would be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the registration rights agreement which are applicable to such holder (including certain indemnification obligations).
The registration rights agreement obligates us to pay additional cash interest on the principal amount of the applicable old notes and new notes (in addition to the stated interest on the old notes and the new notes) upon the occurrence of any of the following events:
- if the registration statement of which this prospectus forms a part is not declared effective by the Securities and Exchange Commission on or prior to the 180th day after the issue date of the old notes (the "effectiveness deadline");
- if the exchange offer is not consummated on or prior to the earlier of the 30th business day following the effectiveness deadline or the 210th day following the issue date of the old notes;
- if obligated to file the shelf registration statement, it is not declared effective by the later of 180 calendar days after the issue date of the old notes or 90 days after the shelf registration statement is required to be filed with the Securities and Exchange Commission; or
- after the shelf registration statement is declared effective it ceases to be effective or usable (subject to some exceptions);
from and including the date on which any registration default shall occur to, but excluding, the earlier of (1) the date on which all registration defaults have been cured or (2) the date on which all the old notes and the new notes otherwise become freely transferable by holders other than our affiliates without further registration under the Securities Act. The additional cash interest will accrue at a rate of .25% per annum during the 90 day period immediately following the occurrence of a registration default and shall increase by an additional .25% per annum with respect to each subsequent 90 day period, up to a maximum amount of additional interest of .50% per annum.
RESALE OF NEW NOTES
Based on no action letters of the staff of the Securities and Exchange Commission issued to third parties, we believe that new notes may be offered for resale, resold and otherwise transferred by you without further compliance with the registration and prospectus delivery provisions of the Securities Act if:
- you are not our "affiliate" within the meaning of Rule 405 under the Securities Act;
- such new notes are acquired in the ordinary course of your business; and
- you do not intend to participate in the distribution of such new notes.
The staff of the Securities and Exchange Commission, however, has not considered the exchange offer for the new notes in the context of a no action letter, and the staff of the Securities and Exchange Commission may not make a similar determination as in the no action letters issued to these third parties.
If you tender in the exchange offer with the intention of participating in any manner in a distribution of the new notes:
- you cannot rely on such interpretations by the Securities and Exchange Commission staff issued to third parties; and
- you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
Unless an exemption from registration is otherwise available, any security holder intending to distribute new notes should be covered by an effective registration statement under the Securities Act. This registration statement should contain the selling security holder's information required by Item 507 of Regulation S-K under the Securities Act. This prospectus may be used for an offer to resell, resale or other retransfer of new notes only as specifically described in this prospectus. Only broker-dealers that acquired the old notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives new notes for its own account in exchange for old notes, where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. Please read the section captioned "Plan of Distribution" for more details regarding the transfer of new notes.
TERMS OF THE EXCHANGE OFFER
Subject to the terms and conditions described in this prospectus and in the letter of transmittal, we will accept for exchange any old notes properly tendered and not withdrawn prior to the expiration date. We will issue new notes in principal amount equal to the principal amount of old notes surrendered under the exchange offer. Old notes may be tendered only for new notes and only in integral multiples of $1,000.
The exchange offer is not conditioned upon any minimum aggregate principal amount of old notes being tendered for exchange.
As of the date of this prospectus, $100,000,000 aggregate principal amount of the old notes is outstanding. This prospectus and the letter of transmittal are being sent to all registered holders of old notes. There will be no fixed record date for determining registered holders of old notes entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Securities Exchange Act of 1934 and the rules and regulations of the Securities and Exchange Commission. Old notes that the holders thereof do not tender for exchange in the exchange offer will remain outstanding and continue to accrue interest. These old notes will be entitled to the rights and benefits such holders have under the indenture relating to the old notes and the registration rights agreement.
We will be deemed to have accepted for exchange properly tendered old notes when we have given oral or written notice of the acceptance to the exchange agent and complied with the applicable provisions of the registration rights agreement. The exchange agent will act as agent for the tendering holders for the purposes of receiving the new notes from us.
If you tender old notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the letter of transmittal, transfer taxes with respect to the exchange of old notes. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. It is important that you read the section labeled "-- Fees and Expenses" for more details regarding fees and expenses incurred in the exchange offer.
We will return any old notes that we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer.
Each broker-dealer that receives new notes for its own account in exchange for old notes, where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. See "Plan of Distribution."
EXPIRATION DATE
The exchange offer will expire at 5:00 p.m., New York City time, on , 2003 unless, in our sole discretion, we extend it.
EXTENSIONS, DELAYS IN ACCEPTANCE, TERMINATION OR AMENDMENT
We expressly reserve the right, at any time or various times, to extend the period of time during which the exchange offer is open. We may delay acceptance of any old notes by giving oral or written notice of such extension to their holders if the exchange offer is so extended. During any such extensions, all old notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange upon the expiration of the extended exchange offer.
In order to extend the exchange offer, we will notify the exchange agent orally or in writing of any extension. We will notify the registered holders of old notes of the extension no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.
If any of the conditions described below under "-- Conditions to the Exchange Offer" have not been satisfied, we reserve the right, in our sole discretion
- to delay accepting for exchange any old notes,
- to extend the exchange offer, or
- to terminate the exchange offer,
by giving oral or written notice of such delay, extension or termination to the exchange agent. However, we may not delay acceptance for exchange of any old notes after the expiration of the exchange offer. Subject to the terms of the registration rights agreement, we also reserve the right to amend the terms of the exchange offer in any manner.
Any such delay in acceptance, extension, termination or amendment will be followed promptly by oral or written notice thereof to the registered holders of old notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose such amendment by means of a prospectus supplement. The supplement will be distributed to the registered holders of the old notes. Depending upon the significance of the amendment and the manner of disclosure to the registered holders, we will extend the exchange offer if the exchange offer would otherwise expire during such period.
CONDITIONS TO THE EXCHANGE OFFER
We will not be required to accept for exchange, or exchange any new notes for, any old notes if the exchange offer, or the making of any exchange by a holder of old notes, would violate applicable law or any applicable interpretation of the staff of the Securities and Exchange Commission. Similarly, we may terminate the exchange offer as provided in this prospectus before accepting old notes for exchange in the event of such a potential violation.
In addition, we will not be obligated to accept for exchange the old notes of any holder that has not made to us the representations described under "-- Purpose and Effect of the Exchange Offer," "-- Procedures for Tendering" and "Plan of Distribution" and such other representations as may be reasonably necessary under applicable Securities and Exchange Commission rules, regulations or staff interpretations to allow us to use an appropriate form to register the new notes under the Securities Act.
We expressly reserve the right to amend or terminate the exchange offer, and to reject for exchange any old notes not previously accepted for exchange, upon the occurrence of any of the conditions to the exchange offer specified above. We will give oral or written notice of any extension, amendment, non- acceptance or termination to the holders of the old notes as promptly as practicable.
These conditions are for our sole benefit, and we may assert them or waive them in whole or in part at any time prior to or on the expiration of the offer in our sole discretion. If we fail at any time to exercise any of these rights, this failure will not mean that we have waived our rights. Each such right will be deemed an ongoing right that we may assert at any time prior to or on the expiration of the offer.
In addition, we will not accept for exchange any old notes tendered, and will not issue new notes in exchange for any such old notes, if at such time any stop order has been threatened or is in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture relating to the new notes under the Trust Indenture Act of 1939.
PROCEDURES FOR TENDERING
HOW TO TENDER GENERALLY
To participate in the exchange offer, you must properly tender your old notes to the exchange agent as described below. We will only issue new notes in exchange for old notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the old notes, and you should follow carefully the instructions on how to tender your old notes. It is your responsibility to properly tender your old notes. We have the right to waive any defects. However, we are not required to waive defects, and neither we nor the exchange agent is required to notify you of defects in your tender.
If you have any questions or need help in exchanging your old notes, please call the exchange agent whose address and phone number are described in the letter of transmittal.
All of the old notes were issued in book-entry form, and all of the old notes are currently represented by a global certificate held by Cede & Co. for the account of DTC. We have confirmed with DTC that the old notes may be tendered using ATOP. The exchange agent will establish an account with DTC for
purposes of the exchange offer promptly after the commencement of the exchange offer, and DTC participants may electronically transmit their acceptance of the exchange offer by causing DTC to transfer their old notes to the exchange agent using the ATOP procedures. In connection with the transfer, DTC will send an "agent's message" to the exchange agent. The agent's message will state that DTC has received instructions from the participant to tender old notes and that the participant agrees to be bound by the terms of the letter of transmittal.
By using the ATOP procedures to exchange old notes, you will not be required to deliver a letter of transmittal to the exchange agent. However, you will be bound by its terms just as if you had signed it.
There is no procedure for guaranteed late delivery of the old notes.
DETERMINATIONS UNDER THE EXCHANGE OFFER
We will determine in our sole discretion all questions as to the validity, form, eligibility, time of receipt, acceptance of tendered old notes and withdrawal of tendered old notes. Our determinations will be final and binding. We reserve the absolute right to reject any old notes not properly tendered or any old notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the rights to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, all defects or irregularities in connection with tenders of old notes must be cured within such time as we shall determine. Although we intend to notify holders of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give such notification. Tenders of old notes will not be deemed made until such defects or irregularities have been cured or waived. Any old notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering holder as soon as practicable following the expiration date.
WHEN WE WILL ISSUE NEW NOTES
In all cases, we will issue new notes for old notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:
- a book-entry confirmation of such old notes into the exchange agent's account at DTC; and
- a properly transmitted agent's message.
RETURN OF OLD NOTES NOT ACCEPTED OR EXCHANGED
If we do not accept any tendered old notes for exchange or if old notes are submitted for a greater principal amount than the holder desires to exchange, the unaccepted or non-exchanged old notes will be returned without expense to their tendering holder. Such non-exchanged old notes will be credited to an account maintained with DTC. These actions will occur promptly after the expiration or termination of the exchange offer.
YOUR REPRESENTATIONS TO US
By agreeing to be bound by the letter of transmittal, you will represent to us that, among other things:
- any new notes that you receive will be acquired in the ordinary course of your business;
- you have no arrangement or understanding with any person or entity to participate in the distribution of the new notes within the meaning of the Securities Act;
- if you are not a broker-dealer that you are not engaged in and do not intend to engage in the distribution of the new notes;
- if you are a broker-dealer that will receive new notes for your own account in exchange for old notes, you acquired those notes as a result of market-making activities or other trading activities and you will deliver a prospectus, as required by law, in connection with any resale of such new notes; and
- you are not our "affiliate," as defined in Rule 405 of the Securities Act or if you are our "affiliate" that you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable.
WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus, you may withdraw your tender at any time prior to the expiration date. For a withdrawal to be effective you must comply with the appropriate ATOP procedures. Any notice of withdrawal must specify the name and number of the account at DTC to be credited with withdrawn old notes and otherwise comply with the ATOP procedures.
We will determine all questions as to the validity, form, eligibility and time of receipt of notice of withdrawal. Our determination shall be final and binding on all parties. We will deem any old notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer.
Any old notes that have been tendered for exchange but that are not exchanged for any reason will be credited to an account maintained with DTC for the old notes. This crediting will take place as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. You may retender properly withdrawn old notes by following the procedures described under "-- Procedures for Tendering" above at any time on or prior to the expiration date.
FEES AND EXPENSES
We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail; however, we may make additional solicitation by telegraph, telephone or in person by our officers and regular employees and those of our affiliates.
We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to broker-dealers or others soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses.
We will pay the cash expenses to be incurred in connection with the exchange offer. They include:
- Securities and Exchange Commission registration fees;
- fees and expenses of the exchange agent and trustee;
- accounting and legal fees and printing costs; and
- related fees and expenses.
TRANSFER TAXES
We will pay all transfer taxes, if any, applicable to the exchange of old notes under the exchange offer. The tendering holder, however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if a transfer tax is imposed for any reason other than the exchange of old notes under the exchange offer.
CONSEQUENCES OF FAILURE TO EXCHANGE
If you do not exchange new notes for your old notes under the exchange offer, you will remain subject to the existing restrictions on transfer of the old notes. In general, you may not offer or sell the old notes unless they are registered under the Securities Act or unless the offer or sale is exempt from the
registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the old notes under the Securities Act.
ACCOUNTING TREATMENT
We will record the new notes in our accounting records at the same carrying value as the old notes. This carrying value is the aggregate principal amount of the old notes, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer. The expenses of the exchange offer will be amortized over the term of the new notes.
OTHER
Participation in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.
We may in the future seek to acquire untendered old notes in open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any old notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered old notes.
Each broker-dealer that receives new notes for its own account in exchange for old notes, where such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. See "Plan of Distribution."
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the registration rights agreement. We will not receive any cash proceeds from the issuance of the new notes in the exchange offer. In consideration for issuing the new notes as contemplated by this prospectus, we will receive old notes in a like principal amount. The form and terms of the new notes are identical in all respects to the form and terms of the old notes, except the new notes are registered under the Securities Act and will not have restrictions on transfer, registration rights or provisions for additional cash interest. Old notes surrendered in exchange for the new notes will be retired and cancelled and will not be reissued. Accordingly, the issuance of the new notes will not result in any increase in our outstanding indebtedness.
CAPITALIZATION
The following table sets forth our capitalization as of June 30, 2003 on an actual basis and as adjusted to give effect to the offering of the old notes and the application of the net proceeds therefrom including:
- the redemption on August 20, 2003 of approximately $68.8 million aggregate principal amount of 8 3/4% senior subordinated notes due 2007;
- the related redemption premium of $2.0 million; and
- the repayment of $26.3 million of indebtedness outstanding under our senior credit facility.
You should read this table in conjunction with our consolidated financial statements and related notes incorporated by reference in this prospectus.
AS OF JUNE 30, 2003
--------------------------
ACTUAL AS ADJUSTED(1)
--------- --------------
(DOLLARS IN THOUSANDS)
(UNAUDITED)
CASH AND CASH EQUIVALENTS.................................. $ 1,309 $ 1,309
========= =========
LONG-TERM DEBT:
Senior credit facility................................... 110,600 84,287
Great Lakes credit facility.............................. 73,500 73,500
8 3/4% senior subordinated notes due 2007(2)............. 68,781 --
7 3/8% senior subordinated notes due 2013, net of
discount.............................................. -- 98,272
6% convertible subordinated debentures due 2007.......... 20,740 20,740
--------- ---------
Total long-term debt.................................. $ 273,621 $ 276,799
--------- ---------
5 3/4% trust convertible preferred securities............ 84,440 84,440
--------- ---------
Total long-term debt and trust preferred.............. $ 358,061 $ 361,239
--------- ---------
STOCKHOLDERS' EQUITY:
Preferred stock, $1 par value; 10,000,000 shares
authorized; none issued and outstanding.................. -- --
Common stock, $.01 par value; 100,000,000 shares
authorized; 55,952,379 issued and outstanding(3)......... 559 559
Capital in excess of par value............................. 396,302 396,302
Stock held by employee benefit trust, 1,605,992 shares at
cost..................................................... (7,867) (7,867)
Retained earnings (deficit)................................ (144,014) (145,568)
Deferred compensation expense.............................. (157) (157)
Other comprehensive income................................. (51,638) (51,638)
--------- ---------
Total stockholders' equity............................ $ 193,185 $ 191,631
--------- ---------
Total capitalization.................................. $ 551,246 $ 552,870
========= =========
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(1) Includes approximately $97.1 million of net proceeds from the offering of the old notes.
(2) Redeemed in full on August 20, 2003.
(3) Outstanding common stock does not include (i) options to purchase 4,072,971 shares of common stock outstanding under our stock option plans as of June 30, 2003 and (ii) shares of our common stock reserved for issuance upon conversion of our 6% convertible subordinated debentures due 2007 and 5 3/4% trust convertible preferred securities outstanding as of June 30, 2003.
DESCRIPTION OF THE NEW NOTES
GENERAL
The form and terms of the new notes are the same as the form and terms of the old notes, except that the new notes have been registered under the Securities Act, will not bear legends restricting the transfer thereof, will not be entitled to registration rights under the registration rights agreement, and will not contain provisions relating to additional interest. Range Resources Corporation will issue the new notes under an indenture among itself, the Subsidiary Guarantors and Bank One, National Association, as trustee. The terms of the new notes include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939.
Certain terms used in this description are defined under the subheading "-- Certain Definitions." In this description, the words "Range Resources" or "the Company" refer only to Range Resources Corporation, and any successor obligor on the notes, and not to any of its subsidiaries. As used in this section, the term "notes" refers to both old notes and new notes.
The old notes, the new notes and any additional notes issued from time to time in accordance with the terms of the indenture will constitute a single class of debt securities under the indenture. If the exchange offer is consummated, holders of old notes who do not exchange new notes for their old notes will vote together with holders of the new notes and, if applicable, any holders of additional notes for all relevant purposes under the indenture. Accordingly, in determining whether the required holders have given any notice, consent or waiver or taken any other action permitted under the indenture, any old notes that remain outstanding after the exchange offer will be aggregated with the new notes and, if applicable, any additional notes, and the holders of the old notes, the new notes and the additional notes will vote together as a single class. All references in this prospectus to specified percentages in aggregate principal amount of the notes that are outstanding means, at any time after the exchange is consummated, the percentage in aggregate principal amount of the old notes, the new notes and the additional notes then outstanding.
The following description is a summary of the provisions of the indenture that we believe to be material and of interest to you and does not restate that agreement in its entirety. We encourage you to read the indenture because that agreement, and not this description, will define your rights as a holder of the notes. We have filed a copy of the indenture as an exhibit to the registration statement of which this prospectus is a part.
BASIC TERMS OF NOTES
The notes
- are unsecured senior subordinated obligations of Range Resources, subordinated in right of payment to all existing and future Senior Debt of Range Resources in accordance with the subordination provisions of the indenture;
- are jointly, severally and unconditionally guaranteed on a senior subordinated basis by each of the Restricted Subsidiaries of the Company and any future Restricted Subsidiary of the Company. The obligations of the Subsidiary Guarantors under the Guarantees will be general unsecured obligations of each of the Subsidiary Guarantors and will be subordinated in right of payment to all obligations of the Subsidiary Guarantors in respect of Senior Debt.
- are issued in an original aggregate principal amount of $100,000,000;
- mature on July 15, 2013;
- bear interest commencing the date of issue at 7 3/8%, payable semiannually in arrears on each January 15 and July 15, commencing January 15, 2004 to holders of record on the January 1 or July 1 immediately preceding the interest payment date; and
- bear interest on overdue principal, and, to the extent lawful, pay interest on overdue interest, at 1.0% per annum higher than 7 3/8%.
Interest will be computed on the basis of a 360-day year of twelve 30-day months.
ADDITIONAL NOTES
Subject to the covenants described below, the Company may issue additional notes under the indenture having the same terms in all respects as the notes except that interest will accrue on the additional notes from their date of issuance.
Any old notes not exchanged in the exchange offer, any new notes and any additional notes would be treated as a single class for all purposes under the indenture and will vote together as one class on all matters under the indenture.
OPTIONAL REDEMPTION
Except as otherwise described below, the notes will not be redeemable at the Company's option prior to July 15, 2008. Thereafter, the notes will be subject to redemption at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on July 15 of the years indicated below:
% OF
PRINCIPAL
YEAR AMOUNT
---- ---------
2008........................................................ 103.688%
2009........................................................ 102.458%
2010........................................................ 101.229%
2011 and thereafter......................................... 100.000%
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Prior to July 15, 2006, the Company may, at its option, on any one or more occasions, redeem up to 35% of the original aggregate principal amount of the notes at a redemption price equal to 107.375% of the principal amount thereof, plus accrued and unpaid interest, if any, thereon to the redemption date, with all or a portion of the net proceeds of public sales of Equity Interests of the Company; provided that at least 65% of the original aggregate principal amount of the notes remains outstanding immediately after the occurrence of such redemption; and provided, further, that such redemption shall occur within 60 days of the date of the closing of the related sale of such Equity Interests.
NO MANDATORY REDEMPTION OR SINKING FUND
Except as set forth below under "-- Repurchase at the Option of Holders," the Company is not required to make mandatory redemption or sinking fund payments with respect to the notes.
GUARANTEES
The Company's payment obligations under the notes will be jointly, severally and unconditionally guaranteed (the "Guarantees") by each Restricted Subsidiary of the Company and any future Restricted Subsidiary of the Company. The Subsidiary Guarantors shall initially be Range Energy I, Inc., Range HoldCo, Inc., Range Production Company, Range Energy Ventures Corporation, Gulfstar Energy, Inc. and Range Energy Finance Corporation. The Guarantees will be subordinated to Indebtedness of the Subsidiary Guarantors to the same extent and in the same manner as the notes are subordinated to the
Senior Debt. Each Guarantee by a Subsidiary Guarantor will be limited in an amount not to exceed the maximum amount that can be guaranteed by the applicable Subsidiary Guarantor without rendering such Guarantee, as it relates to such Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting rights of creditors generally.
The indenture provides that no Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person), another Person whether or not affiliated with such Subsidiary Guarantor, unless (i) subject to the provisions of the following paragraph, the Person formed by or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) assumes all the obligations of such Subsidiary Guarantor pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee in respect of the notes, the indenture and the Guarantees; (ii) immediately after giving effect to such transaction, no Default or Event of Default exists; and (iii) such transaction does not violate any of the covenants described under the heading "-- Certain Covenants."
The indenture provides that in the event of a sale or other disposition of all or substantially all of the assets of a Subsidiary Guarantor to a third party or an Unrestricted Subsidiary in a transaction that does not violate any of the covenants in the indenture, by way of merger, consolidation or otherwise, or a sale or other disposition of all of the capital stock of a Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or other disposition, by way of such a merger, consolidation or otherwise, of all of the capital stock of such Subsidiary Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor) will be released from and relieved of any obligations under its Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with the covenant described under the caption "-- Repurchase at the Option of Holders -- Asset sales."
Any Subsidiary Guarantor that is designated an Unrestricted Subsidiary in accordance with the terms of the indenture shall be released and relieved of its obligations under its Guarantee and any Unrestricted Subsidiary and any newly formed or newly acquired Subsidiary that becomes a Restricted Subsidiary will be required to execute a Guarantee in accordance with the terms of the indenture.
The Company is a holding company, owns no operating assets and has no significant operations independent of its subsidiaries. The Guarantees are full and unconditional and joint and several, and any subsidiaries of the Company other than the Subsidiary Guarantors are minor.
SUBORDINATION
The payment of principal of, premium, if any, and interest on the notes and any other payment obligations of the Company in respect of the notes (including any obligation to repurchase the notes) will be subordinated in certain circumstances in right of payment, as set forth in the indenture, to the prior payment in full in cash of all Senior Debt, whether outstanding on the date of the indenture or thereafter incurred.
Upon any payment or distribution of property or securities to creditors of
the Company in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, or in an assignment for the benefit of creditors or any
marshalling of the Company's assets and liabilities, the holders of Senior Debt
will be entitled to receive payment in full of all Obligations due in respect of
such Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt, whether or not a
claim for such interest would be allowed in such proceeding) before the Holders
of notes will be entitled to receive any payment with respect to the notes, and
until all Obligations with respect to Senior Debt are paid in full, any
distribution to which the Holders of notes would be entitled shall be made to
the holders of Senior Debt (except in each case that Holders of notes may
receive securities that are subordinated at least to the same extent as the
notes are subordinated to Senior Debt and any securities issued in exchange for
Senior Debt and payments made from the trust described under "-- Legal
Defeasance and Covenant Defeasance").
The Company may not make any payment (whether by redemption, purchase,
retirement, defeasance or otherwise) upon or in respect of the notes (except in
such subordinated securities or from the trust described under "-- Legal
Defeasance and Covenant Defeasance") if (i) a default in the payment of the
principal of, premium, if any, or interest on Designated Senior Debt occurs or
(ii) any other default occurs and is continuing with respect to Designated
Senior Debt that permits, or with the giving of notice or passage of time or
both (unless cured or waived) will permit, holders of the Designated Senior Debt
as to which such default relates to accelerate its maturity and the Trustee
receives a notice of such default (a "Payment Blockage Notice") from the Company
or the holders of any Designated Senior Debt. Cash payments on the notes shall
be resumed (a) in the case of a payment default, upon the date on which such
default is cured or waived and (b) in case of a nonpayment default, the earliest
of the date on which such nonpayment default is cured or waived, the date on
which the applicable Payment Blockage Notice is retracted by written notice to
the Trustee or 90 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior Debt has been
accelerated or a default of the type described in clause (ix) under the caption
"Events of Default" has occurred and is continuing. No new period of payment
blockage may be commenced unless and until 360 days have elapsed since the date
of commencement of the payment blockage period resulting from the immediately
prior Payment Blockage Notice. No nonpayment default in respect of Designated
Senior Debt that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The indenture will further require that the Company promptly notify holders of Senior Debt if payment of the notes is accelerated because of an Event of Default.
As a result of the subordination provisions described above, in the event of a liquidation or insolvency of the Company, Holders of notes may recover less ratably than creditors of the Company who are holders of Senior Debt. As of June 30, 2003, we had $184.1 million of Senior Debt outstanding, including our 50% portion of indebtedness owed by our Great Lakes joint venture under its credit facility. The indenture will limit, subject to certain financial tests, the amount of additional Indebtedness, including Senior Debt, that the Company and its Subsidiaries can incur. See "-- Certain Covenants -- Incurrence of indebtedness and issuance of disqualified stock."
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's notes pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount of the notes plus accrued and unpaid interest, if any, thereon to the date of purchase (the "Change of Control Payment"). Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offer to repurchase the notes pursuant to the procedures required by the indenture and described in such notice. The Change of Control Payment shall be made on a business day not less than 30 days nor more than 60 days after such notice is mailed (the "Change of Control Payment Date"). The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent lawful, (i) accept for payment all the notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the notes or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the notes so accepted together with an Officers' Certificate stating the aggregate principal amount of such notes or portions thereof being purchased by the Company. The Paying Agent will promptly mail to each Holder of
notes so tendered the Change of Control Payment for such notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each such new note will be in a principal amount of $1,000 or an integral multiple thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
Except as described above with respect to a Change of Control, the indenture does not contain provisions that permit the Holders of notes to require that the Company repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction.
The Company will not be required to make a Change of Control Offer if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the indenture applicable to a Change of Control Offer made by the Company and purchases all notes (or portions thereof) validly tendered and not withdrawn under such Change of Control Offer.
The Credit Agreement prohibits the Company from repurchasing any notes pursuant to a Change of Control Offer prior to the repayment in full of the Senior Debt under the Credit Agreement. Moreover, the occurrence of certain change of control events identified in the Credit Agreement will constitute a default under the Credit Agreement. Any future Credit Facilities or other agreements relating to the Senior Debt to which the Company becomes a party may contain similar restrictions and provisions. If a Change of Control were to occur, the Company may not have sufficient available funds to pay the Change of Control Payment for all notes that might be delivered by Holders of notes seeking to accept the Change of Control Offer after first satisfying its obligations under the Credit Agreement or other agreements relating to Senior Debt, if accelerated. The failure of the Company to make or consummate the Change of Control Offer or pay the Change of Control Payment when due will constitute a Default under the indenture and will otherwise give the Trustee and the Holders of notes the rights described under "-- Events of Default and Remedies."
The definition of Change of Control includes a phrase relating to the sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the assets of the Company and its Subsidiaries taken as a whole. Although there is a developing body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of notes to require the Company to repurchase such notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Company and its Subsidiaries taken as a whole to another Person or group may be uncertain.
ASSET SALES
The indenture provides that the Company will not, and will not permit any of its Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with this provision) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary in such Asset Sale, plus all other Asset Sales since the date of the indenture, on a cumulative basis, is in the form of cash or Cash Equivalents; provided that the amount of any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any guarantee thereof) are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (a) to reduce Senior Debt, (b) to acquire a controlling interest in another Oil and Gas Business, (c) to make capital expenditures in respect of the Company's or its
Restricted Subsidiaries' Oil and Gas Business, (d) to purchase long-term assets that are used or useful in such Oil and Gas Business or (e) to repurchase any notes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt that is revolving debt or otherwise invest such Net Proceeds in any manner that is not prohibited by the indenture. Any Net Proceeds from Asset Sales that are not applied as provided in the first sentence of this paragraph will (after the expiration of the periods specified in this paragraph) be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $10 million, the Company will be required to make an offer to all Holders of notes and, to the extent required by the terms thereof, to all holders or lenders of Pari Passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of the notes and any such Pari Passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, or, in the case of any other Pari Passu Indebtedness, 100% of the principal amount thereof (or with respect to discount Pari Passu Indebtedness, the accreted value thereof) on the date of purchase, in each case in accordance with the procedures set forth in the indenture or the agreements governing the Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount (or accreted value, as the case may be) of the notes and Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of the notes surrendered by Holders thereof and the aggregate principal amount or accreted value of other Pari Passu Indebtedness surrendered by holders or lenders thereof, collectively, exceeds the amount of Excess Proceeds, the Trustee and the trustee or other lender representatives for the Pari Passu Indebtedness shall select the notes and other Pari Passu Indebtedness to be purchased on a pro rata basis, based on the aggregate principal amount (or accreted value, as applicable) thereof surrendered in such Asset Sale Offer. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
The Credit Agreement prohibits the Company from purchasing any notes from the Net Proceeds of Asset Sales. Any future credit agreements or other agreements relating to Senior Debt to which the Company becomes a party may contain similar restrictions and provisions. In the event an Asset Sale Offer occurs at a time when the Company is prohibited from purchasing the notes, the Company could seek the consent of its lenders to the purchase or could attempt to refinance the Senior Debt that contain such prohibition. If the Company does not obtain such a consent or repay such Senior Debt, the Company may remain prohibited from purchasing the notes. In such case, the Company's failure to purchase tendered notes would constitute an Event of Default under the indenture which would, in turn, constitute a default under the Credit Agreement and possibly a default under other agreements relating to Senior Debt. In such circumstances, the subordination provisions in the indenture would likely restrict payments to the Holders of the notes.
CERTAIN COVENANTS
The indenture contains covenants including, among others, the following:
RESTRICTED PAYMENTS
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment to holders of the Company's Equity Interests in connection with any merger or consolidation involving the Company) to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent or other Affiliate of the Company that is not a Wholly Owned Restricted Subsidiary of the Company;
(iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the notes, except at final maturity; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption "-- Incurrence of indebtedness and issuance of disqualified stock"; and
(c) such Restricted Payment, together with the aggregate of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the indenture (excluding Restricted Payments permitted by clauses (2), (3), (5), (6) and (7) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing prior to the date of the indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue and sale since the date of the indenture of Equity Interests of the Company or of debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the net proceeds of such sale, liquidation or repayment and (B) the initial amount of such Restricted Investment; provided, however, that the foregoing provisions of this paragraph (c) will not prohibit Restricted Payments in an aggregate amount not to exceed $20 million.
The foregoing provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the indenture;
(2) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph;
(3) the defeasance, redemption or repurchase of Subordinated Indebtedness with the net cash proceeds from an incurrence of subordinated Permitted Refinancing Debt or the substantially concurrent sale (other than to a Subsidiary of the Company) of Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph;
(4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any of the Company's (or any of
its Subsidiaries') employees pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of the indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2 million in any twelve-month period; and provided further that no Default or Event of Default shall have occurred and be continuing immediately after such transaction;
(5) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(6) cash payments made by the Company for the repurchase, redemption or other acquisition or retirement of the 8 3/4% Senior Subordinated Notes; and
(7) cash payments made by the Company, not to exceed $25 million in the aggregate, for the repurchase, redemption or other acquisition or retirement of the 6% Convertible Subordinated Debentures and the 5 3/4% Trust Convertible Preferred Securities.
The amount of all Restricted Payments (other than cash) shall be the fair market value (as determined in good faith by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with this provision) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than five days after the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by the covenant "Restricted Payments" were computed.
DESIGNATION OF UNRESTRICTED SUBSIDIARIES
The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under clause (c) of the first paragraph of the covenant "Restricted Payments." All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of the fair market value or the book value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt) and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.5 to 1, determined on a pro forma basis as set forth in the definition of Fixed Charge Coverage Ratio; and
(ii) no Default or Event of Default shall have occurred and be continuing at the time such additional Indebtedness is incurred or such Disqualified Stock is issued or would occur as a consequence of the incurrence of the additional Indebtedness or the issuance of the Disqualified Stock.
Notwithstanding the foregoing, the indenture does not prohibit any of the following (collectively, "Permitted Indebtedness"):
(a) the Indebtedness evidenced by the notes;
(b) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness pursuant to Credit Facilities, so long as the aggregate principal amount of all Indebtedness outstanding under all Credit Facilities does not, at any one time, exceed the greater of (i) $225 million (or, if there is any permanent reduction in the aggregate principal amount permitted to be borrowed under the Credit Agreement, such lesser aggregate principal amount) and (ii) an amount equal to the sum of (A) $50 million plus (B) 30% of Adjusted Consolidated Net Tangible Assets determined after the incurrence of such Indebtedness (including the application of the proceeds therefrom);
(c) the guarantee by any Subsidiary Guarantor of any Indebtedness that is permitted by the indenture to be incurred by the Company;
(d) all Indebtedness of the Company and its Restricted Subsidiaries in existence as of the date of the indenture;
(e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinate to the payment in full of all Obligations with respect to the notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(f) Indebtedness in connection with one or more standby letters of credit, guarantees, performance bonds or other reimbursement obligations, in each case, issued in the ordinary course of business and not in connection with the borrowing of money or the obtaining of advances or credit (other than advances or credit on open account, includible in current liabilities, for goods and services in the ordinary course of business and on terms and conditions which are customary in the Oil and Gas Business, and other than the extension of credit represented by such letter of credit, guarantee or performance bond itself), not to exceed in the aggregate at any given time 5% of Total Assets;
(g) Indebtedness under Interest Rate Hedging Agreements entered into for the purpose of limiting interest rate risks, provided that the obligations under such agreements are related to payment obligations on Indebtedness otherwise permitted by the terms of this covenant and that the aggregate notional principal amount of such agreements does not exceed 105% of the principal amount of the Indebtedness to which such agreements relate;
(h) Indebtedness under Oil and Gas Hedging Contracts, provided that such contracts were entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(i) the incurrence by the Company of Indebtedness not otherwise permitted to be incurred pursuant to this paragraph, provided that the aggregate principal amount (or accreted value, as applicable) of all Indebtedness incurred pursuant to this clause (i), together with all Permitted Refinancing Debt incurred pursuant to clause (j) of this paragraph in respect of Indebtedness previously incurred pursuant to this clause (i), does not exceed $10 million at any one time outstanding;
(j) Permitted Refinancing Debt incurred in exchange for, or the net proceeds of which are used to refinance, extend, renew, replace, defease or refund, Indebtedness that was permitted by the indenture to be incurred (including Indebtedness previously incurred pursuant to this clause (j));
(k) accounts payable or other obligations of the Company or any Restricted Subsidiary to trade creditors created or assumed by the Company or such Restricted Subsidiary in the ordinary course of business in connection with the obtaining of goods or services;
(l) Indebtedness consisting of obligations in respect of purchase price adjustments, guarantees or indemnities in connection with the acquisition or disposition of assets; and
(m) production imbalances that do not, at any one time outstanding, exceed 2% of the Total Assets of the Company.
The Company will not permit any Unrestricted Subsidiary to incur any Indebtedness other than Non-Recourse Debt; provided, however, if any such Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to constitute an incurrence of Indebtedness by the Company.
NO LAYERING
The indenture provides that (i) the Company will not incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Senior Debt and senior in any respect in right of payment to the notes and (ii) the Subsidiary Guarantors will not directly or indirectly incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Senior Debt and senior in any respect in right of payment to the Guarantees, provided, however, that the foregoing limitations will not apply to distinctions between categories of Indebtedness that exist by reason of any Liens arising or created in respect of some but not all such Indebtedness.
LIENS
The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien securing Indebtedness of any kind (other than Permitted Liens) upon any of its property or assets, now owned or hereafter acquired, unless all payments under the notes are secured by such Lien prior to, or on an equal and ratable basis with, the Indebtedness so secured for so long as such Indebtedness is secured by such Lien.
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(x) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (y) pay any indebtedness owed by it to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries or (iii) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries, except for such encumbrances
or restrictions existing under or by reason of (a) the Credit Agreement as in
effect as of the date of the indenture, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof or any other Credit Facility, provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements, refinancings or other Credit Facilities are no more
restrictive taken as a whole with respect to such dividend and other payment
restrictions than those contained in the Credit Agreement as in effect on the
date of the indenture, (b) the indenture and the notes, (c) applicable law, (d)
any instrument governing Indebtedness or Capital Stock of a Person acquired by
the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except, in the case of Indebtedness, to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets
of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the indenture to be incurred, (e) by reason of customary non-assignment provisions in leases and customary provisions in other agreements that restrict assignment of such agreement or rights thereunder, entered into in the ordinary course of business and consistent with past practices, (f) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (iii) above on the property so acquired, or (g) Permitted Refinancing Debt, provided that the restrictions contained in the agreements governing such Permitted Refinancing Debt are no more restrictive than those contained in the agreements governing the Indebtedness being refinanced.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company may not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person, and the Company may not permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions would, in the aggregate, result in a sale, assignment, transfer, lease, conveyance, or other disposition of all or substantially all of the properties or assets of the Company to another Person, in either case unless
(i) the Company is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made (the "Surviving Entity") is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(ii) the Surviving Entity (if the Company is not the continuing obligor under the indenture) assumes all the obligations of the Company under the notes and the indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately before and after giving effect to such transaction or series of transactions no Default or Event of Default exists;
(iv) immediately after giving effect to such transaction or a series of transactions on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company and its Subsidiaries which becomes the obligation of the Company or any of its Subsidiaries as a result of such transaction or series of transactions as having been incurred at the time of such transaction or series of transactions), the Consolidated Net Worth of the Company and its Subsidiaries or the Surviving Entity (if the Company is not the continuing obligor under the indenture) is equal to or greater than the Consolidated Net Worth of the Company and its Subsidiaries immediately prior to such transaction or series of transactions and
(v) the Company or the Surviving Entity (if the Company is not the continuing obligor under the indenture) will, at the time of such transaction or series of transactions and after giving pro forma effect thereto as if such transaction or series of transactions had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the test set forth in the first paragraph of the covenant described above under the caption "-- Incurrence of indebtedness and issuance of disqualified stock."
Notwithstanding the restrictions described in the foregoing clauses (iv) and
(v), any Restricted Subsidiary may consolidate with, merge into or transfer all
or part of its properties and assets to the Company, and any Wholly Owned
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to another Wholly Owned Restricted Subsidiary.
TRANSACTIONS WITH AFFILIATES
The Company will not, and will not permit any of its Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any of its Affiliates (each of the foregoing, an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person and
(ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million but less than or equal to $5.0 million, an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above,
(b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million but less than or equal to $10.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of Affiliate Transactions complies with clause (i) above and that such Affiliate Transaction or series of Affiliate Transactions has been approved in good faith by a majority of the members of the Board of Directors who are disinterested with respect to such Affiliate Transaction or series of related Affiliate Transactions, which resolution shall be conclusive evidence of compliance with this provision, and
(c) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, (x) a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with clause (i) above and that such Affiliate Transaction or series of related Affiliate Transactions has been approved in good faith by a resolution adopted by a majority of the members of the Board of Directors of the Company who are disinterested with respect to such Affiliate Transaction or series of related Affiliate Transactions and (y) an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal, engineering or investment banking firm of national standing (which resolution and fairness opinion shall be conclusive evidence of compliance with this provision);
provided that the following shall not be deemed Affiliate Transactions:
(1) transactions contemplated by any employment agreement or other compensation plan or arrangement entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with the past practice of the Company or such Subsidiary,
(2) transactions between or among the Company and/or its Restricted Subsidiaries,
(3) Restricted Payments and Permitted Investments that are permitted by the provisions of the indenture described above under the caption "-- Restricted payments," and
(4) indemnification payments made to officers, directors and employees of the Company or any Subsidiary pursuant to charter, bylaw, statutory or contractual provisions.
ADDITIONAL SUBSIDIARY GUARANTEES
If the Company or any of its Restricted Subsidiaries acquires or creates another Restricted Subsidiary after the date of the indenture, then such newly acquired or created Restricted Subsidiary will be required to execute a Guarantee and deliver an opinion of counsel, in accordance with the terms of the indenture.
BUSINESS ACTIVITIES
The Company will not, and will not permit any Restricted Subsidiary to, engage in any material respect in any business other than the Oil and Gas Business.
COMMISSION REPORTS
Notwithstanding that the Company may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, to the extent permitted by the Exchange Act the Company will file with the Commission and provide, within 15 days after such filing, the Trustee and Holders and prospective Holders (upon request) with the annual reports and the information, documents and other reports which are specified in Sections 13 and 15(d) of the Exchange Act (but without exhibits in the case of the Holders and prospective Holders). In the event that the Company is not permitted to file such reports, documents and information with the Commission, the Company will provide substantially similar information to the Trustee, the Holders, and prospective Holders (upon request) as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. The Company also will comply with the other provisions of Section 314(a) of the Trust Indenture Act.
EVENTS OF DEFAULT AND REMEDIES
Each of the following constitutes an Event of Default:
(i) a default for 30 days in the payment when due of interest on the notes (whether or not prohibited by the subordination provisions of the indenture);
(ii) a default in payment when due of the principal of or premium, if any, on the notes (whether or not prohibited by the subordination provisions of the indenture);
(iii) the failure by the Company to comply with its obligations under "Certain Covenants -- Merger, consolidation or sale of assets" above;
(iv) the failure by the Company for 30 days after notice from the Trustee or the Holders of at least 25% in principal amount of the notes then outstanding to comply with the provisions described under the captions "Repurchase at the Option of Holders" and "Certain Covenants" other than the provisions described under "-- Merger, consolidation or sale of assets";
(v) failure by the Company for 60 days after notice from the Trustee or the Holders of at least 25% in principal amount of the notes then outstanding to comply with any of its other agreements in the indenture or the notes;
(vi) except as permitted by the indenture, any Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or a Subsidiary Guarantor, or any Person acting on behalf of such Subsidiary Guarantor, shall deny or disaffirm its obligations under its Guarantee;
(vii) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee existed on the date of the indenture or was created thereafter, which default
(a) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a "Payment Default"), or
(b) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there is then existing a Payment Default or
the maturity of which has been so accelerated, aggregates $10 million or more; provided, that if any such default is cured or waived or any such acceleration is rescinded, or such Indebtedness is repaid, within a period of 10 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default under the indenture and any consequential acceleration of the notes shall be automatically rescinded;
(viii) the failure by the Company or any of its Restricted Subsidiaries to pay final, non-appealable judgments aggregating in excess of $10 million, which judgments remain unpaid or discharged for a period of 60 days; and
(ix) certain events of bankruptcy or insolvency with respect to the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the notes then outstanding may declare the principal of and accrued but unpaid interest on such notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to the Company or any Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding notes will become due and payable without further action or notice. Holders of notes may not enforce the indenture or notes except as provided in the indenture. Subject to certain limitations, Holders of a majority in principal amount of the notes then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest.
The Holders of a majority in principal amount of the notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the notes waive any existing Default or Event of Default and its consequences under the indenture except a continuing Default or Event of Default in the payment of interest or premium on, or the principal of, the notes.
The Company is required to deliver to the Trustee annually a statement regarding compliance with the indenture, and the Company is required, within five business days of becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
NO LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, INCORPORATORS, MEMBERS AND STOCKHOLDERS
No director, officer, employee, incorporator, member or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or such Guarantor under the notes, any Note Guaranty or the indenture or for any claim based on, in respect of, or by reason of, such obligations. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. This waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Except as provided in the next two succeeding paragraphs, the indenture, the notes or the Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the notes), and any existing default or compliance with any provision of such indenture, the notes or the Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding notes (including consents obtained in connection with a tender offer or exchange offer for the notes).
Without the consent of each Holder affected, an amendment or waiver may not (with respect to any the notes held by a non-consenting Holder):
(i) reduce the principal amount of the notes whose Holders must consent to an amendment, supplement or waiver,
(ii) reduce the principal of or change the fixed maturity of any note or alter the provisions with respect to the redemption of the notes (other than provisions relating to the covenants described above under the caption "--Repurchase at the Option of Holders"),
(iii) reduce the rate of or change the time for payment of interest on any note,
(iv) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest on the notes (except a recision of acceleration of the notes by the Holders of at least a majority in principal amount of such notes and a waiver of the payment default that resulted from such acceleration),
(v) make any note payable in money other than that stated in the notes,
(vi) make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of Holders of notes to receive payments of principal of or premium, if any, or interest on the notes, or
(vii) make any change in the foregoing amendment and waiver provisions.
In addition, any amendment to the provisions described under "-- Repurchase at the Option of Holders" or the provisions of Article 10 of the indenture (which relate to subordination) will require the consent of the Holders of at least 66 2/3% in principal amount of the notes then outstanding if such amendment would adversely affect the rights of Holders of such notes. However, no amendment may be made to the subordination provisions of the indenture that adversely affects the rights of any holder of Senior Debt then outstanding unless the holders of such Senior Debt (or any group or representative thereof authorized to give a consent) consents to such change.
Notwithstanding the foregoing, without the consent of any Holder of the notes the Company and the Trustee may amend or supplement the indenture or the notes to cure any ambiguity, defect or inconsistency, to provide for uncertificated notes in addition to or in place of certificated notes, to provide for the assumption of the Company's obligations to Holders of the notes in the case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the notes or that does not adversely affect the legal rights under the indenture of any such Holder, to secure the notes or to comply with requirements of the Commission in order to effect or maintain the qualification of the indenture under the Trust Indenture Act.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding notes ("Legal Defeasance") except for
(i) the rights of Holders of such outstanding notes to receive payments in respect of the principal of, premium, if any, or interest on such notes when such payments are due from the trust referred to below,
(ii) the Company's obligations with respect to such notes concerning issuing temporary notes, registration of such notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust,
(iii) the rights, powers, trusts, duties and immunities of the Trustee, and the Company's obligations in connection therewith, and
(iv) the Legal Defeasance provisions of the indenture.
In addition, the Company may, at its option and at any time, elect to have the obligations of the Company released with respect to certain covenants that are described in the indenture ("Covenant Defeasance") and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "Events of Default and Remedies" will no longer constitute an Event of Default.
In order to exercise either Legal Defeasance or Covenant Defeasance,
(i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the notes are being defeased to maturity or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to such Trustee confirming that
(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or
(B) since the date of the indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to such Trustee confirming that the Holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an opinion of counsel to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally;
(vii) the Company must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of notes over the other creditors of the Company, or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and
(viii) the Company must deliver to the Trustee an Officers' Certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
CONCERNING THE TRUSTEE
Bank One, National Association is the Trustee under the indenture. The Trustee and its affiliates also perform and may in the future perform certain banking and other services for us in the ordinary course of their business. The Trustee is also the paying agent and transfer agent for the notes.
The Trustee assumes no responsibility for this prospectus and has not reviewed or undertaken to verify any information contained in this prospectus.
GOVERNING LAW
The indenture, the notes and the Guarantees provide that they will be governed by the laws of the State of New York.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the indenture. Reference is made to the indenture for a full definition of all such terms, as well as any other capitalized terms used herein for which no definition is provided. "Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Subsidiary of such specified Person, and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
"Adjusted Consolidated Net Tangible Assets" means (without duplication), as of the date of determination,
(i) the sum of
(a) discounted future net revenues from proved oil and gas reserves of the Company and its Restricted Subsidiaries calculated in accordance with the Commission's guidelines before any state or federal income taxes, with no less than 80% of the discounted future net revenues estimated by one or more nationally recognized firms of independent petroleum engineers in a reserve report prepared as of the end of the Company's most recently completed fiscal year, as increased by, as of the date of determination, the estimated discounted future net revenues from
(1) estimated proved oil and gas reserves acquired since the date of such year-end reserve report, and
(2) estimated oil and gas reserves attributable to upward revisions of estimates of proved oil and gas reserves since the date of such year-end reserve report due to exploration, development or exploitation activities, in each case calculated in accordance with the Commission's guidelines (utilizing the prices utilized in such year-end reserve report) increased by the accretion of the discount from the date of the reserve report to the date of determination, and decreased by, as of the date of determination, the estimated discounted future net revenues from
(3) estimated proved oil and gas reserves produced or disposed of since the date of such year-end reserve report and
(4) estimated oil and gas reserves attributable to downward revisions of estimates of proved oil and gas reserves since the date of such year-end reserve report due to changes in geological conditions or other factors which would, in accordance with standard industry practice, cause such revisions, in each case calculated in accordance with the Commission's guidelines (utilizing the prices utilized in such year-end reserve report);
provided that, in the case of each of the determinations made pursuant to clause (1) through (4), such increases and decreases shall be as estimated by the Company's petroleum engineers, unless in the event that there is a Material Change as a result of such acquisitions, dispositions or revisions, then the discounted future net revenues utilized for purposes of this clause (i)(a) shall be confirmed in writing by one or more nationally recognized firms of independent petroleum engineers,
(b) the capitalized costs that are attributable to oil and gas properties of the Company and its Restricted Subsidiaries to which no proved oil and gas reserves are attributable, based on the Company's books and records as of a date no earlier than the date of the Company's latest annual or quarterly financial statements,
(c) the Net Working Capital on a date no earlier than the date of the Company's latest annual or quarterly financial statements and
(d) the greater of
(1) the net book value on a date no earlier than the date of the Company's latest annual or quarterly financial statements or
(2) the book value of other tangible assets (including, without duplication, investments in unconsolidated Restricted Subsidiaries and mineral rights held under lease or other contractual arrangements) of the Company and its Restricted Subsidiaries, as of the date no earlier than the date of the Company's latest annual or quarterly financial statements, minus
(ii) the sum of
(a) minority interests,
(b) any gas balancing liabilities of the Company and its Restricted Subsidiaries reflected in the Company's latest audited financial statements, and
(c) the discounted future net revenues, calculated in accordance with the Commission's guidelines, attributable to reserves subject to Dollar-Denominated Production Payments which, based on the estimates of production and price assumptions included in determining the discounted future net revenues specified in (i)(a) above, would be necessary to fully satisfy the payment obligations of the Company and its Restricted Subsidiaries with respect to Dollar-Denominated Production Payments on the schedules specified with respect thereto.
If the Company changes its method of accounting from the successful efforts method to the full cost method or a similar method of accounting, "Adjusted Consolidated Net Tangible Assets" will continue to be calculated as if the Company was still using the successful efforts method of accounting.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the voting securities of a Person shall be deemed to be control.
"Asset Sale" means
(i) the sale, lease, conveyance or other disposition (but excluding the creation of a Lien) of any assets including, without limitation, by way of a sale and leaseback (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole will be governed by the provisions of the indenture described above under the caption "-- Repurchase at the Option of Holders -- Change of control" and/or the provisions described above under the caption "-- Certain Covenants -- Merger, consolidation, or sale
of assets" and not by the provisions described above under "-- Repurchase at the Option of Holders -- Asset sales"), and
(ii) the issuance or sale by the Company or any of its Restricted Subsidiaries of Equity Interests of any of the Company's Subsidiaries (including the sale by the Company or a Restricted Subsidiary of Equity Interests in an Unrestricted Subsidiary), in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions
(a) that have a fair market value in excess of $5 million or
(b) for net proceeds in excess of $5 million.
Notwithstanding the foregoing, the following shall not be deemed to be Asset Sales:
(i) a transfer of assets by the Company to a Wholly Owned Restricted Subsidiary of the Company or by a Wholly Owned Restricted Subsidiary of the Company to the Company or to another Wholly Owned Restricted Subsidiary of the Company,
(ii) an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary of the Company to the Company or to another Wholly Owned Restricted Subsidiary of the Company,
(iii) the making of a Restricted Payment or Permitted Investment that is permitted by the covenant described above under the caption "-- Certain Covenants -- Restricted payments,"
(iv) the abandonment, farm-out, lease or sublease of oil and gas properties in the ordinary course of business,
(v) the trade or exchange by the Company or any Restricted Subsidiary of the Company of any oil and gas property owned or held by the Company or such Restricted Subsidiary for any oil and gas property owned or held by another Person, which the Board of Directors of the Company determines in good faith to be of approximately equivalent value,
(vi) the trade or exchange by the Company or any Subsidiary of the Company of any oil and gas property owned or held by the Company or such Subsidiary for Equity Interests in another Person engaged primarily in the Oil and Gas Business which, together with all other such trades or exchanges (to the extent excluded from the definition of Asset Sale pursuant to this clause (vi)) since the date of the indenture, do not exceed 5% of Adjusted Consolidated Net Tangible Assets determined after such trade or exchange and
(vii) the sale or transfer of hydrocarbons or other mineral products or surplus or obsolete equipment in the ordinary course of business.
"Attributable Debt" in respect of a sale and leaseback transaction means, at the time of determination, the present value (discounted at the rate of interest implicit in such transaction, determined in accordance with GAAP) of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended).
"Borrowing Base" means, as of any date, the aggregate amount of borrowing availability as of such date under all Credit Facilities that determine availability on the basis of a borrowing base or other asset-based calculation.
"Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means
(i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock,
(iii) in the case of a partnership, partnership interests (whether general or limited),
(iv) in the case of a limited liability company or similar entity, any membership or similar interests therein and
(v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means
(i) United States dollars,
(ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than six months from the date of acquisition,
(iii) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any lender party to the Credit Agreement or with any domestic commercial bank having capital and surplus in excess of $500 million and a Thompson Bank Watch Rating of "B" or better,
(iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above,
(v) commercial paper having a rating of at least P1 from Moody's Investors Service, Inc. (or its successor) and a rating of at least A1 from Standard & Poor's Ratings Group (or its successor) and
(vi) investments in money market or other mutual funds substantially
all of whose assets comprise securities of the types described in clauses
(ii) through (v) above.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole to any "person" or group of related "persons" (a "Group") (as such terms are used in Section 13(d)(3) of the Exchange Act),
(ii) the adoption of a plan relating to the liquidation or dissolution of the Company,
(iii) the consummation of any transaction (including, without limitation, any purchase, sale, acquisition, disposition, merger or consolidation) the result of which is that any "person" (as defined above) or Group becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of more than 40% of the aggregate voting power of all classes of Capital Stock of the Company having the right to elect directors under ordinary circumstances or
(iv) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus
(i) an amount equal to any extraordinary loss, plus any net loss realized in connection with an Asset Sale (together with any related provision for taxes), to the extent such losses were included in computing such Consolidated Net Income, plus
(ii) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was included in computing such Consolidated Net Income, plus
(iii) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letters of credit or bankers' acceptance financings, and net payments (if any) pursuant to Interest Rate Hedging Agreements), to the extent that any such expense was included in computing such Consolidated Net Income, plus
(iv) depreciation, depletion and amortization expenses (including amortization of goodwill and other intangibles) for such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, depletion and amortization expenses were included in computing such Consolidated Net Income, plus
(v) exploration expenses for such Person and its Restricted Subsidiaries for such period to the extent such exploration expenses were included in computing such Consolidated Net Income, plus
(vi) other non-cash charges (excluding any such non-cash charge to the extent that it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such other non-cash charges were included in computing such Consolidated Net Income, in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits of, and the depreciation, depletion and amortization and other non-cash charges and expenses of, a Restricted Subsidiary of the referent Person shall be added to Consolidated Net Income to compute Consolidated Cash Flow only to the extent (and in the same proportion) that the Net Income of such Restricted Subsidiary was included in calculating the Consolidated Net Income of such Person and only if a corresponding amount would be permitted at the date of determination to be dividended to the referent Person by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that
(i) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the referent Person or a Wholly Owned Restricted Subsidiary thereof,
(ii) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders,
(iii) the Net Income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition shall be excluded,
(iv) the cumulative effect of a change in accounting principles shall be excluded,
(v) any impairments or write-downs of oil and natural gas assets, shall be excluded, provided, however, that ceiling limitation write-downs in accordance with GAAP shall be treated as capitalized costs, as if such write-downs had not occurred,
(vi) extraordinary non-cash losses shall be excluded,
(vii) any non-cash compensation expenses realized for grants of performance shares, stock options or stock awards to officers, directors and employees of the Company or any of its Restricted Subsidiaries shall be excluded and
(viii) any unrealized non-cash gains or losses or charges in respect of hedge or non-hedge derivatives (including those resulting from the application of SFAS 133) shall be excluded.
"Consolidated Net Worth" means the total of the amounts shown on the balance sheet of the Company and its consolidated Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the end of the most recent fiscal quarter of the Company ending prior to the taking of any action for the purpose of which the determination is being made and for which internal financial statements are available (but in no event ending more than 135 days prior to the taking of such action), as
(i) the par or stated value of all outstanding Capital Stock of the Company, plus
(ii) paid-in capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less
(A) any accumulated deficit and
(B) any amounts attributable to Disqualified Stock.
"Continuing Directors" means, as of any date of determination, any member of the Board of Directors of the Company who
(i) was a member of such Board of Directors on the date of original issuance of the notes or
(ii) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination.
"Credit Agreement" means that certain Amended and Restated Credit Agreement, dated as of May 2, 2002, by and among the Company, Bank One, NA, and the institutions named therein, as lenders, Bank One, NA, as administrative agent and Banc One Capital Markets, Inc., as joint lead arranger and joint bookrunner and JPMorgan Chase Bank, as joint lead arranger and joint bookrunner providing for up to $225 million of Indebtedness, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced, in whole or in part, from time to time, whether or not with the same lenders or agents.
"Credit Facilities" means, with respect to the Company, one or more debt facilities (including, without limitation, the Credit Agreement) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, production payments, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time. Indebtedness
under Credit Facilities outstanding on the date on which the notes are first issued and authenticated under the indenture (after giving effect to the use of proceeds thereof) shall be deemed to have been incurred on such date in reliance on the exception provided by clause (b) of the definition of Permitted Indebtedness.
"Default" means any event that is or with the passage of time or the giving of notice or both would be an Event of Default.
"Designated Senior Debt" means
(i) the Credit Agreement and
(ii) any other Senior Debt permitted under the indenture the principal amount of which is $25 million or more and that has been designated by the Company as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock to the extent that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the notes mature.
"Dollar-Denominated Production Payments" means production payment obligations recorded as liabilities in accordance with GAAP, together with all undertakings and obligations in connection therewith.
"Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
"Fixed Charge Coverage Ratio" means with respect to any Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness (other than revolving credit borrowings) or issues preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the date on which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance or redemption of preferred stock, as if the same had occurred at the beginning of the applicable four-quarter reference period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the referent Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date (including, without limitation, any acquisition to occur on the Calculation Date) shall be deemed to have occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (iii) of the proviso set forth in the definition of Consolidated Net Income,
(ii) the net proceeds of Indebtedness incurred or Disqualified Stock issued by the referent Person pursuant to the first paragraph of the covenant described under the caption "-- Certain Covenants -- Incurrence of indebtedness and issuance of disqualified stock" during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be deemed to have been received by the referent Person or any of its Restricted Subsidiaries on the first day of the four-quarter reference period and applied to its intended use on such date,
(iii) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded, and
(iv) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded, but
only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the referent Person or any of its Restricted Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of
(i) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net payments (if any) pursuant to Interest Rate Hedging Agreements),
(ii) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period,
(iii) any interest expense on Indebtedness of another Person that is guaranteed by such Person or any of its Restricted Subsidiaries or secured by a Lien on assets of such Person or any of its Restricted Subsidiaries (whether or not such guarantee or Lien is called upon) and
(iv) the product of
(a) all cash dividend payments (and non-cash dividend payments in the case of a Person that is a Restricted Subsidiary) on any series of preferred stock of such Person or any of its Restricted Subsidiaries, times
(b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date of the indenture.
"Guarantee" means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness.
"Indebtedness" means, with respect to any Person, without duplication,
(a) any indebtedness of such Person, whether or not contingent,
(i) in respect of borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) evidenced by letters of credit (or reimbursement agreements in respect thereof) or banker's acceptances,
(iv) representing Capital Lease Obligations,
(v) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable,
(vi) representing any obligations in respect of Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts, and
(vii) in respect of any Production Payment,
(b) all indebtedness of others secured by a Lien on any asset of such Person (whether or not such indebtedness is assumed by such Person),
(c) obligations of such Person in respect of production imbalances,
(d) Attributable Debt of such Person, and
(e) to the extent not otherwise included in the foregoing, the guarantee by such Person of any indebtedness of any other Person, provided that the indebtedness described in clauses (a)(i), (ii), (iv) and (v) shall be included in this definition of Indebtedness only if, and to the extent that, the indebtedness described in such clauses would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP.
"Interest Rate Hedging Agreements" means, with respect to any Person, the obligations of such Person under
(i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and
(ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
"Investments" means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of Indebtedness or other obligations, but excluding trade credit and other ordinary course advances customarily made in the oil and gas industry), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that the following shall not constitute Investments:
(i) an acquisition of assets, Equity Interests or other securities by the Company for consideration consisting of common equity securities of the Company,
(ii) Interest Rate Hedging Agreements entered into in accordance with the limitations set forth in clause (g) of the second paragraph of the covenant described under the caption "-- Certain Covenants -- Incurrence of indebtedness and issuance of disqualified stock,"
(iii) Oil and Gas Hedging Agreements entered into in accordance with the limitations set forth in clause (h) of the second paragraph of the covenant described under the caption "-- Certain Covenants -- Incurrence of indebtedness and issuance of disqualified stock" and
(iv) endorsements of negotiable instruments and documents in the ordinary course of business.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other than a precautionary financing statement with respect to a lease not intended as a security agreement).
"Material Change" means an increase or decrease (excluding changes that result solely from changes in prices) of more than 20% during a fiscal quarter in the estimated discounted future net cash flows from proved oil and gas reserves of the Company and its Restricted Subsidiaries, calculated in accordance with
clause (i)(a) of the definition of Adjusted Consolidated Net Tangible Assets; provided, however, that the following will be excluded from the calculation of Material Change:
(i) any acquisitions during the quarter of oil and gas reserves that have been estimated by one or more nationally recognized firms of independent petroleum engineers and on which a report or reports exist and
(ii) any disposition of properties existing at the beginning of such quarter that have been disposed of as provided in the "Asset Sales" covenant.
"Net Income" means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however,
(i) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with
(a) any Asset Sale (including, without limitation, dispositions pursuant to sale and leaseback transactions) or
(b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss), together with any related provision for taxes on such extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, but excluding cash amounts placed in escrow, until such amounts are released to the Company), net of the direct costs relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and expenses, and sales commissions) and any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of Indebtedness (other than Indebtedness under any Credit Facility) secured by a Lien on the asset or assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP and any reserve established for future liabilities.
"Net Working Capital" means
(i) all current assets of the Company and its Restricted Subsidiaries, minus
(ii) all current liabilities of the Company and its Restricted Subsidiaries, except current liabilities included in Indebtedness, in each case as set forth in financial statements of the Company prepared in accordance with GAAP (excluding any adjustments made pursuant to FASB 133).
"Non-Recourse Debt" means Indebtedness
(i) as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness), or
(b) is directly or indirectly liable (as a guarantor or otherwise); and
(ii) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) the explicit terms of which provide that there is no recourse against any of the assets of the Company or its Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
"Oil and Gas Business" means
(i) the acquisition, exploration, development, operation and disposition of interests in oil, gas and other hydrocarbon properties,
(ii) the gathering, marketing, treating, processing, storage, distribution, selling and transporting of any production from such interests or properties,
(iii) any business relating to exploration for or development, production, treatment, processing, storage, transportation or marketing of oil, gas and other minerals and products produced in association therewith and
(iv) any activity that is ancillary to or necessary or appropriate for the activities described in clauses (i) through (iii) of this definition.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or hedging agreement, and other agreement or arrangement, in each case, that is designed to provide protection against oil and gas price fluctuations.
"Pari Passu Indebtedness" means Indebtedness that ranks pari passu in right of payment to the notes.
"Permitted Indebtedness" has the meaning given in the covenant described under the caption "-- Certain Covenants -- Incurrence of indebtedness and issuance of disqualified stock."
"Permitted Investments" means
(a) any Investment in the Company or in a Wholly Owned Restricted Subsidiary of the Company;
(b) any Investment in Cash Equivalents or securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition;
(c) any Investment by the Company or any Restricted Subsidiary of the Company in a Person if, as a result of such Investment and any related transactions that at the time of such Investment are contractually mandated to occur,
(i) such Person becomes a Wholly Owned Restricted Subsidiary of the Company or
(ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the Company;
(d) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "-- Repurchase at the Option of Holders -- Asset sales";
(e) other Investments in any Person or Persons having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (e) that are at the time outstanding, not to exceed $10 million;
(f) any Investment acquired by the Company in exchange for Equity Interests in the Company (other than Disqualified Stock);
(g) shares of Capital Stock received in connection with any good faith settlement of a bankruptcy proceeding involving a trade creditor;
(h) entry into operating agreements, joint ventures, partnership agreements, working interests, royalty interests, mineral leases, processing agreements, farm-out agreements, contracts for the sale, transportation or exchange of oil and natural gas, unitization agreements, pooling arrangements, area of mutual interest agreements, production sharing agreements or other similar or customary agreements, transactions, properties, interests or arrangements, and Investments and expenditures in connection therewith or pursuant thereto, in each case made or entered into the ordinary course of the Oil and Gas Business, excluding, however, Investments in corporations other than any Investment received pursuant to the Asset Sale provision and
(i) the acquisition of any Equity Interests pursuant to a transaction of the type described in clause (vi) of the exclusions from the definition of "Asset Sale."
"Permitted Liens" means
(i) Liens securing Indebtedness of a Subsidiary or Liens securing Senior Debt that is outstanding on the date of issuance of the notes and Liens securing Senior Debt that are permitted by the terms of the indenture to be incurred;
(ii) Liens in favor of the Company;
(iii) Liens on property existing at the time of acquisition thereof by the Company or any Subsidiary of the Company and Liens on property or assets of a Subsidiary existing at the time it became a Subsidiary, provided that such Liens were in existence prior to the contemplation of the acquisition and do not extend to any assets other than the acquired property;
(iv) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance or other kinds of social security, or to secure the payment or performance of tenders, statutory or regulatory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business (including lessee or operator obligations under statutes, governmental regulations or instruments related to the ownership, exploration and production of oil, gas and minerals on state or federal lands or waters);
(v) Liens existing on the date of the indenture;
(vi) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded, provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;
(vii) statutory liens of landlords, mechanics, suppliers, vendors, warehousemen, carriers or other like Liens arising in the ordinary course of business;
(viii) judgment Liens not giving rise to an Event of Default so long as any appropriate legal proceeding that may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceeding may be initiated shall not have expired;
(ix) Liens on, or related to, properties or assets to secure all or part of the costs incurred in the ordinary course of the Oil and Gas Business for the exploration, drilling, development, or operation thereof;
(x) Liens in pipeline or pipeline facilities that arise under operation of law;
(xi) Liens arising under operating agreements, joint venture agreements, partnership agreements, oil and gas leases, farm-out agreements, division orders, contracts for the sale, transportation or exchange of oil or natural gas, unitization and pooling declarations and agreements, area of mutual interest agreements and other agreements that are customary in the Oil and Gas Business,
(xii) Liens reserved in oil and gas mineral leases for bonus or rental payments and for compliance with the terms of such leases,
(xiii) Liens securing the notes and
(xiv) Liens not otherwise permitted by clauses (i) through (xiii) that are incurred in the ordinary course of business of the Company or any Subsidiary of the Company with respect to obligations that do not exceed $5.0 million at any one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness (other than Indebtedness incurred under a Credit Facility) of the Company or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Permitted Refinancing Indebtedness does not exceed the principal amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of reasonable expenses incurred in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a final maturity date on or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(iii) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the notes on terms at least as favorable taken as a whole to the Holders of notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.
"Production Payments" means Dollar-Denominated Production Payments and Volumetric Production Payments, collectively.
"Restricted Investment" means an Investment other than a Permitted Investment.
"Restricted Subsidiary" means any direct or indirect Subsidiary of the Company that is not an Unrestricted Subsidiary.
"Senior Debt" means
(i) Indebtedness of the Company or any Subsidiary of the Company under or in respect of any Credit Facility, whether for principal, interest (including interest accruing after the filing of a petition initiating any proceeding pursuant to any bankruptcy law, whether or not the claim for such interest is allowed as a claim in such proceeding), reimbursement obligations, fees, commissions, expenses, indemnities or other amounts, and
(ii) any other Indebtedness permitted under the terms of the indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the notes. Notwithstanding anything to the contrary in the foregoing sentence, Senior Debt will not include
(w) any liability for federal, state, local or other taxes owed or owing by the Company,
(x) any Indebtedness of the Company to any of its Subsidiaries or other Affiliates,
(y) any trade payables or
(z) any Indebtedness that is incurred in violation of the indenture (other than Indebtedness under
(i) any Credit Agreement or
(ii) any other Credit Facility that is incurred on the basis of a representation by the Company to the applicable lenders that it is permitted to incur such Indebtedness under the indenture).
"Significant Subsidiary" any Subsidiary of the Company that would be a "significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X, promulgated pursuant to the Exchange Act, as such Regulation is in effect on the date hereof.
"Subsidiary" means, with respect to any Person,
(i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock, entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof) and
(ii) any partnership
(a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means each Restricted Subsidiary of the Company existing on the date of the indenture (such Subsidiaries being Range Energy I, Inc., Range HoldCo, Inc., Range Production Company, Range Energy Ventures Corporation, Gulfstar Energy, Inc. and Range Energy Finance Corporation), any other future Restricted Subsidiary of the Company that executes a Guarantee in accordance with the provisions of the indenture, and, in each case, their respective successors and assigns, provided that, in no event shall any future acquired foreign Subsidiary be a Subsidiary Guarantor under the indenture.
"Total Assets" means, with respect to any Person, the total consolidated assets of such Person and its Restricted Subsidiaries, as shown on the most recent balance sheet of such Person.
"Unrestricted Subsidiary" means
(i) any Subsidiary of the Company which at the time of determination shall be an Unrestricted Subsidiary (as designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary only if
(a) such Subsidiary does not own any Capital Stock of, or own or hold any Lien on any property of, any other Subsidiary of the Company which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;
(b) all the Indebtedness of such Subsidiary shall, at the date of designation, and will at all times thereafter, consist of Non-Recourse Debt;
(c) the Company certifies that such designation complies with the "Limitation on Restricted Payments" covenant;
(d) such Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly, all or substantially all of the business of the Company and its Subsidiaries;
(e) such Subsidiary does not, directly or indirectly, own any Indebtedness of or Equity Interest in, and has no investments in, the Company or any Restricted Subsidiary;
(f) such Subsidiary is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation
(1) to subscribe for additional Equity Interests or
(2) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and
(g) on the date such Subsidiary is designated an Unrestricted Subsidiary, such Subsidiary is not a party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary with terms substantially less favorable to the Company than those that might have been obtained from Persons who are not Affiliates of the Company. Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred as of such date. The Board of Directors of the Company may designate any Unrestricted Subsidiary to be Restricted Subsidiary; provided, that
(i) immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof and the Company could incur at least $1.00 of additional Indebtedness (excluding Permitted Indebtedness) pursuant to the first paragraph of the "Incurrence of indebtedness and issuance of disqualified stock" covenant on a pro forma basis taking into account such designation and
(ii) such Subsidiary executes a Guarantee pursuant to the terms of the indenture.
"Volumetric Production Payments" means production payment obligations recorded as deferred revenue in accordance with GAAP, together with all undertakings and obligations in connection therewith.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing
(i) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest-twelfth) that will elapse between such date and the making of such payment, by
(ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors' qualifying shares) shall at the time be owned, directly or indirectly, by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.
FORM, DENOMINATION AND REGISTRATION OF THE NOTES
The new notes will be issued in registered form, without interest coupons, in denominations of $1,000 and integral multiples thereof, in the form of both global notes and certificated notes, as further provided below.
The trustee is not required (i) to issue, register the transfer of or exchange any note for a period of 15 days before a selection of notes to be redeemed or repurchased, (ii) to register the transfer of or exchange any note so selected for redemption or repurchase in whole or in part, except, in the case of a partial redemption or repurchase, that portion of any note not being redeemed or repurchased, or (iii) if a redemption or a repurchase is to occur after a regular record date but on or before the corresponding interest payment date, to register the transfer or exchange of any note on or after the regular record date and before the date of redemption or repurchase. See "-- Global Notes" and "-- Certificated Notes" for a description of additional transfer restrictions applicable to the notes.
No service charge will be imposed in connection with any transfer or exchange of any note, but the Company may in general require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
GLOBAL NOTES
Global notes representing the new notes will be deposited with a custodian for DTC, and registered in the name of a nominee of DTC. Beneficial interests in the global notes will be shown on records maintained by DTC and its direct and indirect participants. So long as DTC or its nominee is the registered owner or holder of a global note, DTC or such nominee will be considered the sole owner or holder of the notes represented by such global note for all purposes under the indenture and the notes. No owner of a beneficial interest in a global note will be able to transfer such interest except in accordance with DTC's applicable procedures and the applicable procedures of its direct and indirect participants.
The Company will apply to DTC for acceptance of the global notes in its book-entry settlement system. Investors may hold their beneficial interests in the global notes directly through DTC if they are participants in DTC, or indirectly through organizations which are participants in DTC.
Payments of principal and interest under each global note will be made to DTC's nominee as the registered owner of such global note. The Company expects that the nominee, upon receipt of any such payment, will immediately credit DTC participants' accounts with payments proportional to their respective beneficial interests in the principal amount of the relevant global note as shown on the records of DTC. The Company also expects that payments by DTC participants to owners of beneficial interests will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. Such payments will be the responsibility of such participants, and none of the Company, the Trustee, the custodian or any paying agent or registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in any global note or for maintaining or reviewing any records relating to such beneficial interests.
CERTIFICATED NOTES
If DTC notifies the Company that it is unwilling or unable to continue as depositary for a global note and a successor depositary is not appointed by the Company within 90 days of such notice, or an Event of Default has occurred and the trustee has received a request from DTC, the trustee will exchange each beneficial interest in that global note for one or more certificated notes registered in the name of the owner of such beneficial interest, as identified by DTC. Neither the Company nor the trustee will be liable for any delay by DTC or any participant or indirect participant in DTC in identifying the beneficial owners of the related notes and each of those person may conclusively rely on, and will be protected in relying on, instructions from DTC for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the notes to be issued.
SAME DAY SETTLEMENT AND PAYMENT
The indenture requires that payments in respect of the notes represented by the global notes be made by wire transfer of immediately available funds to the accounts specified by holders of the global notes. With respect to notes in certificated form, the Company will make all payments by wire transfer of immediately available funds to the accounts specified by the holders thereof or, if no such account is specified, by mailing a check to each holder's registered address.
The new notes represented by the global notes are expected to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. The Company expects that secondary trading in any certificated notes will also be settled in immediately available funds.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of the material federal income tax considerations relevant to the exchange of new notes for old notes but does not purport to be a complete analysis of all potential tax effects. This discussion is based upon the provisions of the Internal Revenue Code of 1986, as amended, applicable Treasury Regulations promulgated and proposed thereunder, judicial authority and administrative interpretations, as of the date hereof, all of which are subject to change, possibly with retroactive effect or are subject to different interpretations. This discussion does not address the tax considerations arising under the laws of any foreign, state, local, or other jurisdiction.
We believe that the exchange of new notes for old notes should not be an exchange or otherwise a taxable event to a holder for United States federal income tax purposes. Accordingly, a holder should have the same adjusted issue price, adjusted basis and holding period in the new notes as it had in the old notes immediately before the exchange.
PLAN OF DISTRIBUTION
Based on interpretations by the staff of the Securities and Exchange Commission in no action letters issued to third parties, we believe that you may transfer new notes issued in the exchange offer in exchange for the old notes if:
- you acquire the new notes in the ordinary course of your business; and
- you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the new notes.
You may not participate in the exchange offer if you are:
- our "affiliate" within the meaning of Rule 405 under the Securities Act; or
- a broker-dealer that acquired old notes directly from us.
Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where such old notes were acquired as a result of market-making activities or other trading activities. We and the subsidiary guarantors have agreed that, starting on the expiration date of the exchange offer and ending on the close of business 180 days after the date of such expiration date, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.
If you wish to exchange new notes for your old notes in the exchange offer,
you will be required to make representations to us as described in "Exchange
Offer -- Purpose and Effect of the Exchange Offer" and "-- Procedures for
Tendering -- Your representations to us" in this prospectus and in the letter of
transmittal. In addition, if you are a broker-dealer who receives new notes for
your own account in
exchange for old notes that were acquired by you as a result of market-making activities or other trading activities, you will be required to acknowledge that you will deliver a prospectus in connection with any resale by you of the new notes.
We will not receive any proceeds from any resale of new notes by broker-dealers. New notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commission or concessions from any such broker-dealer and/or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such new notes may be deemed to be an "underwriter" within the meaning of the Securities Act, and any profit on any such resale of new notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date of the exchange offer, we and the subsidiary guarantors will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer (including the expenses of one counsel for the holders of the old notes) other than commission or concession of any brokers or dealers and will indemnify the holders of the old notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the new notes offered in this exchange offer will be passed upon for us by Vinson & Elkins L.L.P., Austin, Texas.
EXPERTS
The consolidated financial statements of Range Resources Corporation and subsidiaries as of December 31, 2002 and 2001, and for each of the years in the three-year period ended December 31, 2002, have been incorporated by reference herein in reliance upon the reports of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
We proportionately consolidate our 50% interest in Great Lakes Energy Partners L.L.C., and the results are included in the financial statements of Range Resources Corporation incorporated by reference in this prospectus from the annual report on Form 10-K of Range Resources Corporation as of and for the year ended December 31, 2002. The consolidated financial statements of Great Lakes Energy Partners L.L.C. as of and for the year ended December 31, 2002 have been audited by Ernst & Young, LLP, independent auditors, as set forth in their report thereon which is incorporated by reference from the annual report on Form 10-K as of and for the year ended December 31, 2002. We have proportionately consolidated the 2002 financial statements of Great Lakes Energy Partners L.L.C. in reliance on the report of Ernst & Young, LLP as independent auditors given on the authority of such firm as experts in accounting and auditing.
RESERVE ENGINEERS
Certain information incorporated by reference in this prospectus regarding estimated quantities of oil and natural gas reserves owned by us, the future net revenues from those reserves and their present value is based on estimates of the reserves and present values prepared by or derived from estimates prepared by H.J. Gruy and Associates, Inc., Degolyer and MacNaughton and Wright and Company.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration statement under the Securities Act of 1933, with respect to the new notes offered hereby. As permitted by the rules and regulations of the Securities and Exchange Commission, this prospectus does not contain all of the information set forth in the registration statement. For further information with respect to us and the new notes offered hereby, reference is made to the registration statement, including the exhibits and schedules filed therewith. Statements contained in this prospectus concerning the provisions of any contract, agreement or other document referred to herein or therein are not necessarily complete, but contain a summary of the material terms of such contracts, agreements or other documents. With respect to each contract, agreement or other document filed as an exhibit to the registration statement, reference is made to the exhibit for the complete contents of the exhibit, and each statement concerning its provisions is qualified in its entirety by such reference. We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. The registration statement and our other filings with the Securities and Exchange Commission may be read and copied at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of such materials may also be obtained by mail at prescribed rates from the Public Reference Room of the Securities and Exchange Commission at that address. You may obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. Copies of such materials may also be obtained from the web site that the Securities and Exchange Commission maintains at www.sec.gov.
We maintain an internet web site at www.rangeresources.com. The information on this site does not form a part of this prospectus. Our common stock is listed and traded on the New York Stock Exchange under the trading symbol "RRC."
Pursuant to the indenture under which the new notes will be issued, we have agreed that, whether or not we are required to do so by the rules and regulations of the Securities and Exchange Commission, for so long as any of the new notes remain outstanding, we will furnish to the holders of the new notes copies of the annual reports and any other information, documents and other reports which we would be required to file with the Securities and Exchange Commission if we were subject to Section 13 or 15(d) of the Securities Exchange Act of 1934. In addition, whether or not required by the rules and regulations of the Securities and Exchange Commission, we will also agree to file a copy of all such information and reports with the Securities and Exchange Commission for public availability (unless the Securities and Exchange Commission will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. Any request of this nature should be directed to our Corporate Secretary, 777 Main Street, Suite 800, Ft. Worth, Texas 76102 (telephone (817) 870-2601).
INCORPORATION BY REFERENCE
In this prospectus, we have incorporated by reference certain information we have filed, or will file, with the Securities and Exchange Commission. The information incorporated by reference is an important part of this prospectus, and information that we file later with the Securities and Exchange Commission will automatically update and supersede this information. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded, for purposes of this prospectus, to the extent that a statement contained in or omitted from this prospectus, 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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference the documents listed below and any further
filings made with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act until we terminate this exchange offer:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2002;
(b) The portions of the Proxy Statement for our annual meeting of stockholders that were incorporated by reference into our December 31, 2002 Form 10-K;
(c) Our Quarterly Reports on Form 10-Q for the periods ended March 31, 2003 and June 30, 2003; and
(d) Our Current Reports on Form 8-K filed April 2, 2003, July 11, 2003, July 17, 2003, July 22, 2003, August 21, 2003 and August 28, 2003.
All documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 before the termination of this exchange offer shall be deemed to be incorporated by reference into this prospectus from the respective dates of filing such documents.
We will provide without charge to any person to whom this prospectus is delivered, on the written or oral request of such person, a copy of any or all of the documents incorporated by reference (other than exhibits to such documents unless the exhibits are specifically incorporated by reference in the documents). Requests should be directed to Range Resources Corporation, Attention: Corporate Secretary, 777 Main Street, Suite 800, Fort Worth, Texas 76102 (telephone number (817) 870-2601).
ANNEX A
LETTER OF TRANSMITTAL
TO TENDER
OUTSTANDING 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
OF
RANGE RESOURCES CORPORATION
PURSUANT TO THE EXCHANGE OFFER AND PROSPECTUS DATED , 2003
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2003 (THE "EXPIRATION DATE"), UNLESS THE EXCHANGE OFFER IS EXTENDED BY THE COMPANY.
The Exchange Agent for the Exchange Offer is:
Bank One, National Association
Mail Code TX1-036
420 Throckmorton, 4th Floor
Forth Worth, Texas 76102
Attention: Bill Barber
IF YOU WISH TO EXCHANGE CURRENTLY OUTSTANDING 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013 (THE "OLD NOTES") FOR AN EQUAL AGGREGATE PRINCIPAL AMOUNT OF NEW
7 3/8% SENIOR SUBORDINATED NOTES DUE 2013 PURSUANT TO THE EXCHANGE OFFER, YOU
MUST VALIDLY TENDER (AND NOT WITHDRAW) OLD NOTES TO THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE BY CAUSING AN AGENT'S MESSAGE TO BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO SUCH TIME.
The undersigned hereby acknowledges receipt and review of the Prospectus, dated 2003 (the "Prospectus"), of Range Resources Corporation, a Delaware corporation (the "Company"), and this Letter of Transmittal (the "Letter of Transmittal"), which together describe the Company's offer to exchange (the "Exchange Offer") its 7 3/8% Senior Subordinated Notes due 2013 (the "New Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 7 3/8% Senior Subordinated Notes due 2013 (the "Old Notes"). Capitalized terms used but not defined herein have the respective meaning given to them in this Prospectus.
The Company reserves the right, at any time or from time to time, to extend the Exchange Offer at its discretion, in which event the term "Expiration Date" shall mean the latest date to which the Exchange Offer is extended. The Company shall notify the Exchange Agent and each registered holder of the Old Notes of any extension by oral or written notice prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
This Letter of Transmittal is to be used by holders of the Old Notes. Tender of Old Notes is to be made according to the Automated Tender Offer Program ("ATOP") of the Depository Trust Company ("DTC") pursuant to the procedures set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering." DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent's DTC account. DTC will then send a computer generated message known as an "agent's message" to the exchange agent for its acceptance. For you to validly tender your Old notes in the Exchange Offer, the Exchange Agent must receive prior to the Expiration Date, an agent's message under the ATOP procedures that confirms that:
- DTC has received your instructions to tender your Old Notes; and
- You agree to be bound by the terms of this Letter of Transmittal
BY USING THE ATOP PROCEDURES TO TENDER OLD NOTES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
1. By tendering Old Notes in the Exchange Offer, you acknowledge receipt of the Prospectus and this Letter of Transmittal.
2. By tendering Old Notes in the Exchange Offer, you represent and warrant that you have full authority to tender the Old Notes described above and will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the tender of Old Notes.
3. The tender of the Old Notes pursuant to all of the procedures set forth in the Prospectus will constitute an agreement between you and the Company as to the terms and conditions set forth in the Prospectus.
4. The Exchange Offer is being made in reliance upon interpretations contained in no-action letters issued to third parties by the staff of the Securities and Exchange Commission (the "SEC"), including Exxon Capital Holdings Corp., SEC No-Action Letter (available April 13, 1989), Morgan Stanley & Co., Inc., SEC No-Action Letter (available June 5, 1991) and Shearman & Sterling, SEC No-Action Letter (available July 2, 1993), that the New Notes issued in exchange for the Old Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than a broker-dealer who purchased Old Notes exchanged for such New Notes directly from the Company to resell pursuant to Rule 144A or any other available exemption under the Securities Act of 1933, as amended (the "Securities Act") and any such holder that is an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act (without compliance with the registration and prospectus delivery provisions of the Securities Act), provided that such New Notes are acquired in the ordinary course of such holders' business and such holders are not participating in, and have no arrangement with any person to participate in, the distribution of such New Notes.
5. By tendering Old Notes in the Exchange Offer, you represent and warrant that:
a. the New Notes acquired pursuant to the Exchange Offer are being obtained in the ordinary course of your business, whether or not you are the holder;
b. neither you nor any such other person is engaging in or intends to engage in a distribution of such New Notes;
c. neither you nor any such other person has an arrangement or understanding with any person to participate in the distribution of such New Notes; and
d. neither the holder nor any such other person is an "affiliate," as such term is defined under Rule 405 promulgated under the Securities Act, of the Company.
6. You may, if you are unable to make all of the representations and warranties contained in Item 5 above and as otherwise permitted in the Registration Rights Agreement (as defined below), elect to have your Old Notes registered in the shelf registration statement described in the Registration Rights Agreement, dated as of August 21, 2003 (the "Registration Rights Agreement"), by and among the Company, the Subsidiary Guarantors (as defined therein) and the Initial Purchasers (as defined therein). Such election may be made only by notifying the Company in writing at 777 Main Street, Suite 800, Forth Worth, Texas 76102, Attention: Corporate Secretary. By making such election, you agree, as a holder of Old Notes participating in a shelf registration, to indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who signs such shelf registration statement, each person who controls the Company within the meaning of either the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and each other holder of Old Notes, from and against any and all losses, claims, damages or liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any shelf registration statement or prospectus, or in any supplement thereto or amendment thereof, or caused by the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; but only with respect to information relating to the undersigned furnished in writing by or on behalf of the undersigned expressly for use in a shelf registration statement, a prospectus or any amendments or supplements thereto. Any such indemnification shall be governed by the terms and subject to the conditions set forth
in the Registration Rights Agreement, including, without limitation, the provisions regarding notice, retention of counsel, contribution and payment of expenses set forth therein. The above summary of the indemnification provision of the Registration Rights Agreement is not intended to be exhaustive and is qualified in its entirety by the Registration Rights Agreement.
7. If you are a broker-dealer that will receive New Notes for its own account in exchange for Old Notes that were acquired as a result of market-making activities or other trading activities, you acknowledge, by tendering Old Notes in the Exchange Offer, that you will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, you will not be deemed to admit that you are an "underwriter" within the meaning of the Securities Act. If you are a broker-dealer and Old Notes held for your own account were not acquired as a result of market-making or other trading activities, such Old Notes cannot be exchanged pursuant to the Exchange Offer.
8. Any of your obligations hereunder shall be binding upon your successors, assigns, executors, administrators, trustees in bankruptcy and legal and personal representatives of the undersigned.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY CONFIRMATIONS.
Any confirmation of a book-entry transfer to the Exchange Agent's account at DTC of Old Notes tendered by book-entry transfer (a "Book-Entry Confirmation"), as well as an agent's message, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein prior to 5:00 P.M., New York City time, on the Expiration Date.
2. PARTIAL TENDERS.
Tenders of Old Notes will be accepted only in integral multiples of $1,000.
THE ENTIRE PRINCIPAL AMOUNT OF OLD NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE
DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE COMMUNICATED TO THE EXCHANGE
AGENT. IF THE ENTIRE PRINCIPAL AMOUNT OF ALL OLD NOTES IS NOT TENDERED, THEN OLD
NOTES FOR THE PRINCIPAL AMOUNT OF OLD NOTES NOT TENDERED AND NOTES ISSUED IN
EXCHANGE FOR ANY OLD NOTES ACCEPTED WILL BE DELIVERED TO THE HOLDER VIA THE
FACILITIES OF DTC PROMPTLY AFTER THE OLD NOTES ARE ACCEPTED FOR EXCHANGE.
3. VALIDITY OF TENDERS.
All questions as to the validity, form, eligibility (including time of receipt), acceptance, and withdrawal of tendered Old Notes will be determined by the Company, in its sole discretion, which determination will be final and binding. The Company reserves the absolute right to reject any or all tenders not in proper form or the acceptance for exchange of which may, in the opinion of counsel for the Company, be unlawful. The Company also reserves the absolute right to waive any of the conditions of the Exchange Offer or any defect or irregularity in the tender of any Old Notes. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions on this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Notes must be cured within such time as the Company shall determine,. Although the Company intends to notify holders of defects or irregularities with respect to tenders of Old Notes, neither the Company, the Exchange Agent, nor any other person shall be under any duty to give such notification of any defects or irregularities in tenders or incur any liability for failure to give such notification. Tenders of Old Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Old Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holders via the facilities of DTC, as soon as practicable following the Expiration Date.
4. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive, in whole or part, up to the expiration of the exchange offer any of the conditions of the Exchange Offer set forth in the Prospectus or in this Letter of Transmittal.
5. NO CONDITIONAL TENDER.
No alternative, conditional, irregular or contingent tender of Old Notes will be accepted.
6. REQUEST FOR ASSISTANCE OR ADDITIONAL COPIES.
Requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the Exchange Agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.
7. WITHDRAWAL.
Tenders may be withdrawn only pursuant to the limited withdrawal rights set
forth in the Prospectus under the caption "Exchange Offer -- Withdrawal of
Tenders."
8. NO GUARANTEE OF LATE DELIVERY.
There is no procedure for guarantee of late delivery in the Exchange Offer.
IMPORTANT: BY USING THE ATOP PROCEDURES TO TENDER OLD NOTES, YOU WILL NOT BE REQUIRED TO DELIVER THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT. HOWEVER, YOU WILL BE BOUND BY ITS TERMS, AND YOU WILL BE DEEMED TO HAVE MADE THE ACKNOWLEDGEMENTS AND THE REPRESENTATIONS AND WARRANTIES IT CONTAINS, JUST AS IF YOU HAD SIGNED IT.
Until , 2003, all dealers that effect transactions in the new notes, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
[RANGE RESOURCES LOGO]
RANGE RESOURCES CORPORATION
OFFER TO EXCHANGE UP TO
$100,000,000 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
FOR
$100,000,000 7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
, 2003
[RANGE RESOURCES]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may 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 whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she 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, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she 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 or her conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he or she 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, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or such other court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The Amended and Restated By-Laws of Range Resources Corporation (the "Company") provide that the Company will indemnify and hold harmless to the fullest extent authorized by the DGCL each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director, officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent. Such indemnification continues as to a person who has ceased to be a director, officer, employee or agent and inures to the benefit of his or her heirs, executors and administrators.
The Company's Certificate of Incorporation, as amended, provides for the
indemnification of directors to the fullest extent permitted by the DGCL. In
addition, as permitted by the DGCL, the Certificate of Incorporation provides
that directors of the Company shall have no personal liability to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except (1) for any breach of the director's duty of loyalty to the
Company or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law, (3) under
Section 174 of the DGCL or (4) for any transaction from which a director derived
an improper personal benefit.
In addition, the Company's Certificate of Incorporation also provides indemnification for any former, present or future director, officer or employee of the Company or the legal representative of any such director, officer or employee where such person has been successful on the merits or otherwise in any
II-1
pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding, or in defense of any claim, issue or matter therein, by reason of such person being or having been such director, officer or employee. If such person is not successful on the merits or otherwise, and such person had no reasonable cause to believe the conduct was unlawful, then a majority of the members of the Company's board of directors (sitting as a committee of the board of directors), who were not parties to such inquiry, investigation, action, suit or proceeding or one or more disinterested counsel to whom the board of directors may refer the matter, may determine that the applicable standard of conduct was met and indemnify the person. However, if the proceeding is by or in the right of the Company, no indemnification will be provided to any person adjudged by any court to be liable for negligence or misconduct except to the extent determined by such court.
The Company has entered into indemnification agreements with its directors and executive officers, and intends to enter into indemnification agreements with any new directors and executive officers in the future.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
3.1.1* -- Restated Certificate of Incorporation of Lomak Petroleum,
Inc. ("Lomak")
3.1.2 -- Certificate of Amendment to the Certificate of Incorporation
of Lomak dated June 20, 1997 (incorporated by reference to
Exhibit 3.1.11 to the Company's Form 10-Q (File No.
001-12209) as filed with the Securities and Exchange
Commission (the "SEC") on August 6, 2003)
3.1.3 -- Certificate of Amendment to the Certificate of Incorporation
of Lomak dated August 25, 1998 (incorporated by reference to
Exhibit 3.1 to the Company's Form S-8 (File No. 333-62439)
as filed with the SEC on August 28, 1998)
3.1.4 -- Certificate of Amendment to the Certificate of Incorporation
of the Company dated May 24, 2000 (incorporated by reference
to Exhibit 3.1.12 to the Company's Form 10-Q (File No.
001-12209) as filed with the SEC on May 7, 2003)
3.2.1 -- Amended and Restated By-laws of the Company dated May 24,
2001 (incorporated by reference to Exhibit 3.2.2 to the
Company's Form 10-K (File No. 001-12209) as filed with the
SEC on March 5, 2002)
4.1.1 -- Form of 6% Convertible Subordinated Debentures due 2007
(contained as an exhibit to Exhibit 4.1.2 hereto)
4.1.2 -- Indenture dated December 20, 1996 by and between Lomak and
Keycorp Shareholder Services, Inc., as trustee (incorporated
by reference to Exhibit 4.1(a)to Lomak's Form S-3 (File No.
333-23955) as filed with the SEC on March 25, 1997)
4.2.1 -- Form of 5 3/4% Convertible Preferred Security Certificate
(contained as an exhibit to Exhibit 4.2.6 hereto)
4.2.2 -- Form of 5 3/4% Convertible Junior Subordinated Debenture
(contained as an exhibit to Exhibit 4.2.4 hereto)
4.2.3 -- Indenture dated October 22, 1997 by and between Lomak and
The Bank of New York, as trustee (incorporated by reference
to Exhibit 4.6 of Lomak's Form S-3 (File No. 333-43823) as
filed with the SEC on January 7, 1998)
4.2.4 -- First Supplemental Indenture dated October 22, 1997 by and
between Lomak and The Bank of New York, as trustee
(incorporated by reference to Exhibit 4.7 to Lomak's Form
S-3 (File No. 333-43823) as filed with the SEC on January 7,
1998)
4.2.5 -- Certificate of Trust of Lomak Financing Trust dated October
8, 1997 (incorporated by reference to Exhibit 4.4 to Lomak's
Form S-3 (File No. 333-43823) as filed with the SEC on
January 7, 1998)
|
II-2
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
4.2.6 -- Amended and Restated Declaration of Trust of Lomak Financing
Trust dated October 22, 1997 by and between the Trustees (as
defined therein), the Sponsor (as defined therein) and the
holders, from time to time, of undivided beneficial
ownership interests in the Trust (as defined therein)
(incorporated by reference to Exhibit 4.5 to Lomak's Form
S-3 (File No. 333-43823) as filed with the SEC on January 7,
1998)
4.2.7 -- Convertible Preferred Securities Guarantee Agreement dated
October 22, 1997 by and between Lomak, as guarantor, and The
Bank of New York, as trustee (incorporated by reference to
Exhibit 4.10 to Lomak's Form S-3 (File No. 333-43823) as
filed with the SEC on January 7, 1998)
4.2.8 -- Common Securities Guarantee Agreement dated October 22, 1997
executed and delivered by Lomak, as guarantor, for the
benefit of the Holders (as defined therein) from time to
time of the Common Securities (as defined therein) of Lomak
Financing Trust (incorporated by reference to Exhibit 4.11
to Lomak's Form S-3 (File No. 333-43823) as filed with the
SEC on January 7, 1998)
4.3.1 -- Form of 7 3/8% Senior Subordinated Note due 2013 (contained
as an exhibit to Exhibit 4.3.2 hereto)
4.3.2 -- Indenture dated July 21, 2003 by and among the Company, as
issuer, the Subsidiary Guarantors (as defined therein), as
guarantors, and Bank One, National Association, as trustee
(incorporated by reference to Exhibit 4.4.2 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on
August 6, 2003)
4.3.3 -- Registration Rights Agreement dated July 21, 2003 by and
between the Company and UBS Securities LLC, Banc One Capital
Markets, Inc., Credit Lyonnais Securities (USA) Inc. and
McDonald Investments Inc. (incorporated by reference to
Exhibit 4.4.3 to the Company's Form 10-Q (File No.
001-12209) as filed with the SEC on August 6, 2003)
5.1* -- Opinion of Vinson & Elkins L.L.P.
10.1 -- Form of Directors and Officers Indemnification Agreement
(incorporated by reference to Exhibit 10.1(11) to Lomak's
Post-Effective Amendment No. 2 on Form S-4 to Form S-1 (File
No. 333-47544) as filed with the SEC on January 18, 1994)
10.2 -- Purchase and Sale Agreement dated April 20, 2000 by and
between Range Pipeline Systems, L.P., as seller, and Conoco
Inc., as buyer (incorporated by reference to Exhibit 10.1 to
the Company's Form 10-Q (File No. 001-12209) as filed with
the SEC on August 8, 2000)
10.3 -- Gas Purchase Contract dated July 1, 2000 by and between
Range Production I, L.P., as seller, and Conoco Inc., as
buyer (incorporated by reference to Exhibit 10.2 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 8, 2000)
10.4.1 -- Application Service Provider and Outsourcing Agreement dated
June 1, 2000 by and between Applied Terravision Systems Inc.
and the Company (incorporated by reference to Exhibit 10.4
to the Company's Form 10-Q (File No. 001-12209) as filed
with the SEC on August 8, 2000)
10.4.2 -- Addendum to that certain Application Service Provider and
Outstanding Agreement dated June 1, 2000 by and between
Applied Terravision Systems Inc. predecessor to CGI
Information Systems & Management Systems, Inc. and the
Company (incorporated by reference to Exhibit 10.1 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
10.5 -- Consulting Agreement dated May 21, 2003 by and between the
Company and Thomas J. Edelman (incorporated by reference to
Exhibit 10.2 to the Company's Form 10-Q (File No. 001-12209)
as filed with the SEC on August 6, 2003)
|
II-3
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
10.6.1 -- Amended and Restated Credit Agreement dated May 2, 2002 by
and among the Company, Bank One, NA, the Lenders (as defined
therein), Bank One, NA, as Administrative Agent, Fleet
National Bank, as Co-Documentation Agent, Fortis Capital
Corp., as Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan
Securities Inc., as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.1 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on May
7, 2002)
10.6.2 -- First Amendment to Amended and Restated Credit Agreement
dated December 27, 2002 by and among the Company, Bank One,
NA, the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan Chase
Bank, as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.15.6 to the
Company's Form 10-K (File No. 001-12209) as filed with the
SEC on March 5, 2003)
10.6.3 -- Second Amendment to Amended and Restated Credit Agreement
dated January 24, 2003 by and among the Company, Bank One,
NA, the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint-Bookrunner, and JPMorgan Chase
Bank, as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.1 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on May
7, 2003)
10.6.4 -- Third Amendment to Amended and Restated Credit Agreement
dated April 1, 2003 by and among the Company, Bank One, NA,
the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan
Securities, Inc., as Joint Lead Arranger and Joint
Bookrunner (incorporated by reference to Exhibit 10.2 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on May 7, 2003)
10.6.5* -- Fourth Amendment to Amended and Restated Credit Agreement
dated July 15, 2003 by and among the Company, Bank One, NA,
the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnias, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan
Securities, Inc., as Joint Lead Arranger and Joint
Bookrunner
10.7.1 -- Restated Credit Agreement dated May 3, 2002 by and among
Great Lakes Energy Partners, L.L.C. ("Great Lakes"), Bank
One, NA, JPMorgan Chase Bank, The Bank of Nova Scotia, Bank
of Scotland, Credit Lyonnais, New York Branch, Fortis
Capital Corp., The Frost National Bank, Union Bank of
California, N.A., each Lender (as defined therein), Bank
One, NA, as Administrative Agent, JPMorgan Chase Bank, as
Syndication Agent, Credit Lyonnais, New York Branch, as
Documentation Agent and The Bank of Nova Scotia, as Managing
Agent (incorporated by reference to Exhibit 10.4.1 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
|
II-4
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
10.7.2 -- First Amendment to Restated Credit Agreement dated April 1,
2003 by and among Great Lakes, Bank One, NA, JPMorgan Chase
Bank, The Bank of Nova Scotia, Bank of Scotland, Credit
Lyonnais, New York Branch, Fortis Capital Corp., The Frost
National Bank, Union Bank of California, N.A., Comerica
Bank-Texas, Natexis Banques Populaires, each Lender (as
defined therein), Bank One, NA, as Administrative Agent,
JPMorgan Chase Bank, as Syndication Agent, Credit Lyonnais,
New York Branch, as Co-Documentation Agent, The Bank of Nova
Scotia, as Co-Documentation Agent, Banc One Capital Markets,
Inc., as Joint Lead Arranger and Bookrunner, and JPMorgan
Securities, Inc., as Joint Lead Arranger and Bookrunner
(incorporated by reference to Exhibit 10.4.2 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
10.8 -- Amended and Restated Range Resources Corporation Deferred
Compensation Plan for Directors and Select Employees
effective September 1, 2000 (incorporated by reference to
Exhibit 10.15 to the Company's Form 10-K (File No.
001-12209) as filed with the SEC on March 6, 2001)
10.9.1 -- Lomak 1989 Stock Option Plan dated March 13, 1989
(incorporated by reference to Exhibit 10.1(d) to Lomak's
Form S-1 (File No. 33-31558) as filed with the SEC on
October 13, 1989)
10.9.2 -- Amendment to the Lomak 1989 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.1 to Lomak's Form
S-8 (File No. 333-10719) as filed with the SEC on August 23,
1996)
10.9.3 -- Amendment to the Lomak 1989 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.2 to Lomak's Form
S-8 (File No. 333-44821) as filed with the SEC on January
23, 1998)
10.10.1 -- Lomak 1994 Outside Directors Stock Option Plan (incorporated
by reference to Exhibit 4.2 to Lomak's Form S-8 (File No.
333-10719) as filed with the SEC on August 23, 1996)
10.10.2 -- First Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated June 8, 1995 (incorporated by reference to
Exhibit 4.6 to the Company's Form S-8 (File No. 333-40380)
as filed with the SEC on June 29, 2000)
10.10.3 -- Second Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated August 21, 1996 (incorporated by reference
to Exhibit 4.7 to the Company's Form S-8 (File No.
333-40380) as filed with the SEC on June 29, 2000)
10.10.4 -- Third Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated June 1, 1999 (incorporated by reference to
Exhibit 4.8 to the Company's Form S-8 (File No. 333-40380)
as filed with the SEC on June 29, 2000)
10.10.5 -- Fourth Amendment to the Company's 1994 Outside Directors
Stock Option Plan dated May 24, 2000 (incorporated by
reference to Exhibit 4.9 to the Company's Form S-8 (File No.
333-40380) as filed with the SEC on June 29, 2000)
10.11 -- Second Amended and Restated 1996 Stock Purchase and Option
Plan for Key Employees of Domain Energy Corporation and
Affiliates (incorporated by reference to Exhibit 4.1 to the
Company's Form S-8 (File No. 333-62439) as filed with the
SEC on August 28, 1998)
10.12.1 -- Lomak 1997 Stock Purchase Plan, as amended, dated June 19,
1997 (incorporated by reference to Exhibit 10.1(l) to
Lomak's Form 10-K (File No. 001-12209) as filed with the SEC
on March 20, 1998)
10.12.2 -- First Amendment to the Lomak 1997 Stock Purchase Plan dated
May 26, 1999 (incorporated by reference to Exhibit 4.2 to
the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
10.12.3 -- Second Amendment to the Lomak 1997 Stock Purchase Plan dated
September 28, 1999 (incorporated by reference to Exhibit 4.3
to the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
10.12.4 -- Third Amendment to the Company's 1997 Stock Purchase Plan
dated May 24, 2000 (incorporated by reference to Exhibit 4.4
to the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
|
II-5
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
10.12.5 -- Fourth Amendment to the Company's 1997 Stock Purchase Plan
dated May 24, 2001 (incorporated by reference to Exhibit 4.7
to the Company's Form S-8 (File No. 333-63764) as filed with
the SEC on June 25, 2001)
10.13 -- Amended and Restated 1999 Stock Option Plan (as amended May
21, 2003) (incorporated by reference to Exhibit 4.1 to the
Company's Form S-8 (File No. 333-105895) as filed with the
SEC on June 6, 2003)
10.14* -- Range Resources Corporation 401(k) Plan
10.15* -- Range Resources Corporation Amended and Restated Change in
Control Plan dated September 15, 1998
12.1* -- Computation of Ratio of Earnings to Fixed Charges
16.1 -- Letter Re Change in Great Lakes' Certifying Accountant dated
November 6, 2002 (incorporated by reference to Exhibit 16.1
to the Company's Form 8-K/A (File No. 001-12209) as filed
with the SEC on December 2, 2002)
16.2 -- Letter Re Change in the Company's Certifying Accountant
dated March 28, 2003 (incorporated by reference to Exhibit
16.1 to the Company's Form 8-K/A (File No. 001-12209) as
filed with the SEC on December 9, 2002)
21.1 -- Subsidiaries of the Company (incorporated by reference to
Exhibit 21.1 to the Company's Form 10-K (File No. 001-12209)
as filed with the SEC on March 5, 2003)
23.1* -- Consent of Vinson & Elkins L.L.P. (included in their opinion
filed as Exhibit 5.1 hereto)
23.2* -- Consent of Ernst & Young LLP
23.3* -- Consent of KPMG LLP
24.1* -- Powers of Attorney (included on the first signature page of
this Registration Statement)
25.1* -- Form T-1 of Bank One, National Association
|
* Filed herewith
(b) Financial Statement Schedules
All financial statements, financial statement schedules and reports of independent accountants are included or incorporated by reference in the Prospectus.
ITEM 22. UNDERTAKINGS
The undersigned co-registrants hereby undertake:
(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 Securities Act of 1933;
(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 prospectus filed with the Securities and Exchange Commission pursuant to 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
II-6
(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;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 co-registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934 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 of 1933 may be permitted to directors, officers and controlling persons of the co-registrants pursuant to the foregoing provisions, or otherwise, the co-registrants have been advised that in the opinion of the Securities and Exchange 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 co-registrants of expenses incurred or paid by a director, officer or controlling person of the co-registrants 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.
The undersigned co-registrants hereby undertake to respond to the requests for information that is incorporated by reference into this prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
The undersigned co-registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE RESOURCES CORPORATION
By: /s/ JOHN H. PINKERTON
--------------------------------------
John H. Pinkerton
Chief Executive Officer and President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John H. Pinkerton, Rodney L. Waller and Jeff L. Ventura 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 pre-and post-effective amendments) to this Registration Statement and any additional registration statement pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Acting Chief Financial Officer
Rodney L. Waller (Principal Financial Officer
and Principal Accounting
Officer)
/s/ CHARLES L. BLACKBURN Chairman of the Board September 4, 2003
--------------------------------------
Charles L. Blackburn
/s/ ROBERT E. AIKMAN Director September 4, 2003
--------------------------------------
Robert E. Aikman
/s/ ANTHONY V. DUB Director September 4, 2003
--------------------------------------
Anthony V. Dub
|
II-8
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALLEN FINKELSON Director September 4, 2003
--------------------------------------
Allen Finkelson
/s/ JONATHAN S. LINKER Director September 4, 2003
--------------------------------------
Jonathan S. Linker
|
II-9
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE ENERGY I, INC.
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-10
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE HOLDCO, INC.
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-11
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE PRODUCTION COMPANY
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-12
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE ENERGY VENTURES CORPORATION
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-13
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
GULFSTAR ENERGY, INC.
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-14
Pursuant to the requirements of the Securities Act of 1933, the co-registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on the 4th day of September, 2003.
RANGE ENERGY FINANCE CORPORATION
By: /s/ JOHN H. PINKERTON
------------------------------------
John H. Pinkerton
Chief Executive Officer and
President
|
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 the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JOHN H. PINKERTON Chief Executive Officer, September 4, 2003
-------------------------------------- President and Director
John H. Pinkerton
/s/ RODNEY L. WALLER Senior Vice President and September 4, 2003
-------------------------------------- Director
Rodney L. Waller
|
II-15
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
3.1.1* -- Restated Certificate of Incorporation of Lomak Petroleum,
Inc. ("Lomak")
3.1.2 -- Certificate of Amendment to the Certificate of Incorporation
of Lomak dated June 20, 1997 (incorporated by reference to
Exhibit 3.1.11 to the Company's Form 10-Q (File No.
001-12209) as filed with the Securities and Exchange
Commission (the "SEC") on August 6, 2003)
3.1.3 -- Certificate of Amendment to the Certificate of Incorporation
of Lomak dated August 25, 1998 (incorporated by reference to
Exhibit 3.1 to the Company's Form S-8 (File No. 333-62439)
as filed with the SEC on August 28, 1998)
3.1.4 -- Certificate of Amendment to the Certificate of Incorporation
of the Company dated May 24, 2000 (incorporated by reference
to Exhibit 3.1.12 to the Company's Form 10-Q (File No.
001-12209) as filed with the SEC on May 7, 2003)
3.2.1 -- Amended and Restated By-laws of the Company dated May 24,
2001 (incorporated by reference to Exhibit 3.2.2 to the
Company's Form 10-K (File No. 001-12209) as filed with the
SEC on March 5, 2002)
4.1.1 -- Form of 6% Convertible Subordinated Debentures due 2007
(contained as an exhibit to Exhibit 4.1.2 hereto)
4.1.2 -- Indenture dated December 20, 1996 by and between Lomak and
Keycorp Shareholder Services, Inc., as trustee (incorporated
by reference to Exhibit 4.1(a) to Lomak's Form S-3 (File No.
333-23955) as filed with the SEC on March 25, 1997)
4.2.1 -- Form of 5 3/4% Convertible Preferred Security Certificate
(contained as an exhibit to Exhibit 4.2.6 hereto)
4.2.2 -- Form of 5 3/4% Convertible Junior Subordinated Debenture
(contained as an exhibit to Exhibit 4.2.4 hereto)
4.2.3 -- Indenture dated October 22, 1997 by and between Lomak and
The Bank of New York, as trustee (incorporated by reference
to Exhibit 4.6 of Lomak's Form S-3 (File No. 333-43823) as
filed with the SEC on January 7, 1998)
4.2.4 -- First Supplemental Indenture dated October 22, 1997 by and
between Lomak and The Bank of New York, as trustee
(incorporated by reference to Exhibit 4.7 to Lomak's Form
S-3 (File No. 333-43823) as filed with the SEC on January 7,
1998)
4.2.5 -- Certificate of Trust of Lomak Financing Trust dated October
8, 1997 (incorporated by reference to Exhibit 4.4 to Lomak's
Form S-3 (File No. 333-43823) as filed with the SEC on
January 7, 1998)
4.2.6 -- Amended and Restated Declaration of Trust of Lomak Financing
Trust dated October 22, 1997 by and between the Trustees (as
defined therein), the Sponsor (as defined therein) and the
holders, from time to time, of undivided beneficial
ownership interests in the Trust (as defined therein)
(incorporated by reference to Exhibit 4.5 to Lomak's Form
S-3 (File No. 333-43823) as filed with the SEC on January 7,
1998)
4.2.7 -- Convertible Preferred Securities Guarantee Agreement dated
October 22, 1997 by and between Lomak, as guarantor, and The
Bank of New York, as trustee (incorporated by reference to
Exhibit 4.10 to Lomak's Form S-3 (File No. 333-43823) as
filed with the SEC on January 7, 1998)
4.2.8 -- Common Securities Guarantee Agreement dated October 22, 1997
executed and delivered by Lomak, as guarantor, for the
benefit of the Holders (as defined therein) from time to
time of the Common Securities (as defined therein) of Lomak
Financing Trust (incorporated by reference to Exhibit 4.11
to Lomak's Form S-3 (File No. 333-43823) as filed with the
SEC on January 7, 1998)
4.3.1 -- Form of 7 3/8% Senior Subordinated Note due 2013 (contained
as an exhibit to Exhibit 4.3.2 hereto)
4.3.2 -- Indenture dated July 21, 2003 by and among the Company, as
issuer, the Subsidiary Guarantors (as defined therein), as
guarantors, and Bank One, National Association, as trustee
(incorporated by reference to Exhibit 4.4.2 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on
August 6, 2003)
|
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.3.3 -- Registration Rights Agreement dated July 21, 2003 by and
between the Company and UBS Securities LLC, Banc One Capital
Markets, Inc., Credit Lyonnais Securities (USA) Inc. and
McDonald Investments Inc. (incorporated by reference to
Exhibit 4.4.3 to the Company's Form 10-Q (File No.
001-12209) as filed with the SEC on August 6, 2003)
5.1* -- Opinion of Vinson & Elkins L.L.P.
10.1 -- Form of Directors and Officers Indemnification Agreement
(incorporated by reference to Exhibit 10.1(11) to Lomak's
Post-Effective Amendment No. 2 on Form S-4 to Form S-1 (File
No. 333-47544) as filed with the SEC on January 18, 1994)
10.2 -- Purchase and Sale Agreement dated April 20, 2000 by and
between Range Pipeline Systems, L.P., as seller, and Conoco
Inc., as buyer (incorporated by reference to Exhibit 10.1 to
the Company's Form 10-Q (File No. 001-12209) as filed with
the SEC on August 8, 2000)
10.3 -- Gas Purchase Contract dated July 1, 2000 by and between
Range Production I, L.P., as seller, and Conoco Inc., as
buyer (incorporated by reference to Exhibit 10.2 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 8, 2000)
10.4.1 -- Application Service Provider and Outsourcing Agreement dated
June 1, 2000 by and between Applied Terravision Systems Inc.
and the Company (incorporated by reference to Exhibit 10.4
to the Company's Form 10-Q (File No. 001-12209) as filed
with the SEC on August 8, 2000)
10.4.2 -- Addendum to that certain Application Service Provider and
Outstanding Agreement dated June 1, 2000 by and between
Applied Terravision Systems Inc. predecessor to CGI
Information Systems & Management Systems, Inc. and the
Company (incorporated by reference to Exhibit 10.1 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
10.5 -- Consulting Agreement dated May 21, 2003 by and between the
Company and Thomas J. Edelman (incorporated by reference to
Exhibit 10.2 to the Company's Form 10-Q (File No. 001-12209)
as filed with the SEC on August 6, 2003)
10.6.1 -- Amended and Restated Credit Agreement dated May 2, 2002 by
and among the Company, Bank One, NA, the Lenders (as defined
therein), Bank One, NA, as Administrative Agent, Fleet
National Bank, as Co-Documentation Agent, Fortis Capital
Corp., Agent, JPMorgan Chase Bank, as Co-Syndication Agent,
Credit Lyonnais, New York Branch, as Co-Syndication Agent,
Banc One Capital Markets, Inc., as Joint Lead Arranger and
Joint Bookrunner, and JPMorgan Securities Inc., as Joint
Lead Arranger and Joint Bookrunner (incorporated by
reference to Exhibit 10.1 to the Company's Form 10-Q (File
No. 001-12209) as filed with the SEC on May 7, 2002)
10.6.2 -- First Amendment to Amended and Restated Credit Agreement
dated December 27, 2002 by and among the Company, Bank One,
NA, the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan Chase
Bank, as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.15.6 to the
Company's Form 10-K (File No. 001-12209) as filed with the
SEC on March 5, 2003)
10.6.3 -- Second Amendment to Amended and Restated Credit Agreement
dated January 24, 2003 by and among the Company, Bank One,
NA, the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnais, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint-Bookrunner, and JPMorgan Chase
Bank, as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.1 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on May
7, 2003)
|
EXHIBIT
NUMBER DESCRIPTION
------- -----------
10.6.4 -- Third Amendment to Amended and Restated Credit Agreement
dated April 1, 2003 by and among the Company, Bank One, NA,
the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as Co-
Documentation Agent, JPMorgan Chase Bank, as Co-Syndication
Agent, Credit Lyonnais, New York Branch, as Co-Syndication
Agent, Banc One Capital Markets, Inc., as Joint Lead
Arranger and Joint Bookrunner, and JPMorgan Securities,
Inc., as Joint Lead Arranger and Joint Bookrunner
(incorporated by reference to Exhibit 10.2 to the Company's
Form 10-Q (File No. 001-12209) as filed with the SEC on May
7, 2003)
10.6.5* -- Fourth Amendment to Amended and Restated Credit Agreement
dated July 15, 2003 by and among the Company, Bank One, NA,
the Lenders (as defined therein), Bank One, NA, as
Administrative Agent, Fleet National Bank, as
Co-Documentation Agent, Fortis Capital Corp., as
Co-Documentation Agent, JPMorgan Chase Bank, as
Co-Syndication Agent, Credit Lyonnias, New York Branch, as
Co-Syndication Agent, Banc One Capital Markets, Inc., as
Joint Lead Arranger and Joint Bookrunner, and JPMorgan
Securities, Inc., as Joint Lead Arranger and Joint
Bookrunner
10.7.1 -- Restated Credit Agreement dated May 3, 2002 by and among
Great Lakes Energy Partners, L.L.C. ("Great Lakes"), Bank
One, NA, JPMorgan Chase Bank, The Bank of Nova Scotia, Bank
of Scotland, Credit Lyonnais, New York Branch, Fortis
Capital Corp., The Frost National Bank, Union Bank of
California, N.A., each Lender (as defined therein), Bank
One, NA, as Administrative Agent, JPMorgan Chase Bank, as
Syndication Agent, Credit Lyonnais, New York Branch, as
Documentation Agent and The Bank of Nova Scotia, as Managing
Agent (incorporated by reference to Exhibit 10.4.1 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
10.7.2 -- First Amendment to Restated Credit Agreement dated April 1,
2003 by and among Great Lakes, Bank One, NA, JPMorgan Chase
Bank, The Bank of Nova Scotia, Bank of Scotland, Credit
Lyonnais, New York Branch, Fortis Capital Corp., The Frost
National Bank, Union Bank of California, N.A., Comerica
Bank-Texas, Natexis Banques Populaires, each Lender (as
defined therein), Bank One, NA, as Administrative Agent,
JPMorgan Chase Bank, as Syndication Agent, Credit Lyonnais,
New York Branch, as Co-Documentation Agent, The Bank of Nova
Scotia, as Co-Documentation Agent, Banc One Capital Markets,
Inc., as Joint Lead Arranger and Bookrunner, and JPMorgan
Securities, Inc., as Joint Lead Arranger and Bookrunner
(incorporated by reference to Exhibit 10.4.2 to the
Company's Form 10-Q (File No. 001-12209) as filed with the
SEC on August 6, 2003)
10.8 -- Amended and Restated Range Resources Corporation Deferred
Compensation Plan for Directors and Select Employees
effective September 1, 2000 (incorporated by reference to
Exhibit 10.15 to the Company's Form 10-K (File No.
001-12209) as filed with the SEC on March 6, 2001)
10.9.1 -- Lomak 1989 Stock Option Plan dated March 13, 1989
(incorporated by reference to Exhibit 10.1(d) to Lomak's
Form S-1 (File No. 33-31558) as filed with the SEC on
October 13, 1989)
10.9.2 -- Amendment to the Lomak 1989 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.1 to Lomak's Form
S-8 (File No. 333-10719) as filed with the SEC on August 23,
1996)
10.9.3 -- Amendment to the Lomak 1989 Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.2 to Lomak's Form
S-8 (File No. 333-44821) as filed with the SEC on January
23, 1998)
10.10.1 -- Lomak 1994 Outside Directors Stock Option Plan (incorporated
by reference to Exhibit 4.2 to Lomak's Form S-8 (File No.
333-10719) as filed with the SEC on August 23, 1996)
10.10.2 -- First Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated June 8, 1995 (incorporated by reference to
Exhibit 4.6 to the Company's Form S-8 (File No. 333-40380)
as filed with the SEC on June 29, 2000)
10.10.3 -- Second Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated August 21, 1996 (incorporated by reference
to Exhibit 4.7 to the Company's Form S-8 (File No.
333-40380) as filed with the SEC on June 29, 2000)
|
EXHIBIT
NUMBER DESCRIPTION
------- -----------
10.10.4 -- Third Amendment to the Lomak 1994 Outside Directors Stock
Option Plan dated June 1, 1999 (incorporated by reference to
Exhibit 4.8 to the Company's Form S-8 (File No. 333-40380)
as filed with the SEC on June 29, 2000)
10.10.5 -- Fourth Amendment to the Company's 1994 Outside Directors
Stock Option Plan dated May 24, 2000 (incorporated by
reference to Exhibit 4.9 to the Company's Form S-8 (File No.
333-40380) as filed with the SEC on June 29, 2000)
10.11 -- Second Amended and Restated 1996 Stock Purchase and Option
Plan for Key Employees of Domain Energy Corporation and
Affiliates (incorporated by reference to Exhibit 4.1 to the
Company's Form S-8 (File No. 333-62439) as filed with the
SEC on August 28, 1998)
10.12.1 -- Lomak 1997 Stock Purchase Plan, as amended, dated June 19,
1997 (incorporated by reference to Exhibit 10.1(l) to
Lomak's Form 10-K (File No. 001-12209) as filed with the SEC
on March 20, 1998)
10.12.2 -- First Amendment to the Lomak 1997 Stock Purchase Plan dated
May 26, 1999 (incorporated by reference to Exhibit 4.2 to
the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
10.12.3 -- Second Amendment to the Lomak 1997 Stock Purchase Plan dated
September 28, 1999 (incorporated by reference to Exhibit 4.3
to the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
10.12.4 -- Third Amendment to the Company's 1997 Stock Purchase Plan
dated May 24, 2000 (incorporated by reference to Exhibit 4.4
to the Company's Form S-8 (File No. 333-40380) as filed with
the SEC on June 29, 2000)
10.12.5 -- Fourth Amendment to the Company's 1997 Stock Purchase Plan
dated May 24, 2001 (incorporated by reference to Exhibit 4.7
to the Company's Form S-8 (File No. 333-63764) as filed with
the SEC on June 25, 2001)
10.13 -- Amended and Restated 1999 Stock Option Plan (as amended May
21, 2003) (incorporated by reference to Exhibit 4.1 to the
Company's Form S-8 (File No. 333-105895) as filed with the
SEC on June 6, 2003)
10.14* -- Range Resources Corporation 401(k) Plan
10.15* -- Range Resources Corporation Amended and Restated Change in
Control Plan dated September 15, 1998
12.1* -- Computation of Ratio of Earnings to Fixed Charges
16.1 -- Letter Re Change in Great Lakes' Certifying Accountant dated
November 6, 2002 (incorporated by reference to Exhibit 16.1
to the Company's Form 8-K/A (File No. 001-12209) as filed
with the SEC on December 2, 2002)
16.2 -- Letter Re Change in the Company's Certifying Accountant
dated March 28, 2003 (incorporated by reference to Exhibit
16.1 to the Company's Form 8-K/A (File No. 001-12209) as
filed with the SEC on December 9, 2002)
21.1 -- Subsidiaries of the Company (incorporated by reference to
Exhibit 21.1 to the Company's Form 10-K (File No. 001-12209)
as filed with the SEC on March 5, 2003)
23.1* -- Consent of Vinson & Elkins L.L.P. (included in their opinion
filed as Exhibit 5.1 hereto)
23.2* -- Consent of Ernst & Young LLP
23.3* -- Consent of KPMG LLP
24.1* -- Powers of Attorney (included on the first signature page of
this Registration Statement)
25.1* -- Form T-1 of Bank One, National Association
|
* Filed herewith
EXHIBIT 3.1.1
RESTATED CERTIFICATE OF INCORPORATION
OF
LOMAK PETROLEUM, INC.
FIRST: The name of the Corporation is Lomak Petroleum, Inc.
SECOND: Its principal and registered office in the State of Delaware
is located at No. 100 West Tenth Street, the City of
Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, No. 100
West Tenth Street, Wilmington, Delaware, 19801.
THIRD: The nature of the business or purposes to be conducted or
promoted are:
To explore, prospect, drill for, produce, market, sell, and
deal in and with petroleum, oil, asphaltum, natural gas,
gasoline, naphthene, hydrocarbons, oil shales, ores of every
kind or the mineral or nonmineral, liquid, solid, or volatile
substances and products, by-products, combinations, and
derivatives thereof, and to buy, lease, hire, contract for,
invest in, and otherwise acquire, and to own, hold, maintain,
equip, operate, manage, mortgage, create and grant security
interests in, deal in and with, and to sell, lease, exchange
and otherwise dispose of oil, gas, mineral, and mining lands,
wells, rights, royalties, overriding royalties, oil payments
and other oil, gas and mineral interests, claims, locations,
patents, concessions, easements, rights-of-way, franchises,
real and personal property, and all interests therein,
machinery for use on land, water, or air, for prospecting,
exploring, and drilling for, producing, gathering,
manufacturing, refining, purchasing, leasing, exchanging,
trading for, or otherwise disposing of oil, gas and such
mineral and non-mineral substances; and to do engineering and
contracting and to design, construct, drill, bore, sink,
develop, improve, extend, maintain, operate, and repair wells,
mines, plants, works, machinery, appliances, rigging, casing,
tools, storage, and transportation lines and systems for this
Corporation and other persons, associations, or corporations.
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware
as now in effect or hereafter amended.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 39 million
shares, divided into classes as follows:
35 million Common shares having a par value of $.01 per
share; and
4 million Preferred shares having a par value of $1.00
per share.
As of November 20, 1992 (the "Effective Date"), each share of
Common Stock issued and outstanding immediately prior to the
Effective Date shall automatically
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be changed and converted, without any action on part of the
holder thereof, into 1/15th of a share of Common Stock and, in
connection with fractional interests in shares of Common Stock
of the Corporation, each holder whose aggregate holdings of
shares of Common Stock prior to the Effective Date amounted to
less than 15, or to a number not evenly divisible by 15 shares
of Common Stock, shall be entitled to receive for such
fractional interest, and at such time, any such fractional
interest shall be converted into the right to receive, upon
the surrender of the stock certificates formerly representing
shares of Common Stock of the Corporation, cash in lieu of
such fractional interest at a price based upon the average of
the low bid and high asked price per share of the Common Stock
for the ten trading days immediately preceding the Effective
Date based upon the quotations provided by NASDAQ.
The designations, voting powers, preferences and relative,
participating, optional or other special rights,
qualifications, limitations and restrictions of the above
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classes of stock shall be as follows:
DIVISION A
SERIAL PREFERRED SHARES
SECTION 1. The Serial Preferred Shares may be issued from time to time in one or more series. All Serial Preferred Shares shall be of equal rank and shall be identical, except in respect of the matters that may be fixed by the Board of Directors as hereinafter provided, and each share of each series shall be identical with all other shares of such series, except as to the date from which dividends may be cumulative. Subject to the provisions of Sections 2 to 8, both inclusive, of this Division, which provisions shall apply to all Serial Preferred Shares, the Board of Directors hereby is authorized to cause such shares to be issued in one or more series and with respect to each such series by resolution or resolutions adopted prior to the issuance thereof to fix or determine:
(a) The designation of the series, which may be by distinguishing number, letter or title.
(b) The number of shares of the series, which number the Board of Directors may (except where otherwise provided in the creation of the series) increase or decrease (but not below the number of shares thereof then outstanding).
(c) The dividend rate or rates on the shares of the series, whether dividends shall be cumulative and, if so, the dates from which dividends shall be cumulative, and the dates at which dividends, if declared, shall be payable.
(d) The redemption rights and price or prices, if any, for shares of the series (which may vary at different redemption dates).
(e) The terms and amount of any sinking fund provided for the purchase or redemption of shares of the series.
(f) The liquidation price payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
(g) Whether the shares of the series shall be convertible into Common Shares or other securities of the Corporation, and, if so, the conversion price or rate (which may vary depending on the time at which such conversion is made), any adjustments thereof, and all other terms and conditions upon which such conversion may be made.
(h) Restrictions on the issuance of shares of the same series or of any other class or series.
(i) The voting powers, if any, of such series.
SECTION 2. The holders of Serial Preferred Shares of each series, in preference to the holders of Common Shares and of any other class of shares ranking junior to the Serial Preferred Shares, shall be entitled to receive out of any funds legally available and when and as declared by the Board of Directors dividends in cash at the rate for such series fixed in accordance with the provisions of Section 1 of this Division and no more, payable quarterly on the dates fixed for such series. Such dividends may be cumulative, in the case of shares of any particular series, from and after the date or dates fixed with respect to such series. No dividends may be paid upon or declared or set apart for any of the Serial Preferred Shares for any dividend period unless at the same time a like proportionate dividend for the same dividend period, ratably in proportion to the respective annual dividend rates fixed therefor, shall be paid upon or declared or set apart for all Serial Preferred Shares of all series then issued and outstanding and entitled to receive such dividend.
SECTION 3. In no event so long as any Serial Preferred Shares shall be outstanding shall any dividends, except a dividend payable in Common Shares, or other shares ranking junior to the Serial Preferred Shares, be paid or declared or any distribution be made on the Common Shares or any other shares ranking junior to the Serial Preferred Shares, nor shall any Common Shares or any other shares ranking junior to the Serial Preferred Shares be purchased, retired or otherwise acquired by the Corporation (except out of the proceeds of the sale of Common Shares or other shares ranking junior to the Serial Preferred Shares received by the Corporation subsequent to the date on which the Serial Preferred Shares are first issued);
(a) Unless all accrued and unpaid dividends on Serial Preferred Shares, including the full dividends for the current dividend period, shall have been declared and paid for or a sum sufficient for payment thereof set apart; and
(b) Unless there shall be no arrearages with respect to the redemption of Serial Preferred Shares of any series from any sinking fund provided for shares of such series in accordance with the provisions of Section 1 of this Division.
SECTION 4. (a) Subject to the express terms of each series, the Corporation may from time to time redeem all or any part of the Serial Preferred Shares of any series at the time outstanding (i) at the option of the Board of Directors at the applicable redemption price for such series fixed in accordance with the provisions of Section 1 or (ii) in fulfillment of the
requirements of any sinking fund provided for shares of such series at the applicable sinking fund redemption price, fixed in accordance with the provisions of Section 1, together in each case with accrued and unpaid dividends to the redemption date.
(a) Notice of every such redemption shall be mailed, postage
prepaid, to the holders of record of the Serial Preferred Shares to be
redeemed at their respective addresses then appearing on the books of
the Corporation, not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for such redemption. At any time
before or after notice has been given as above provided, the
Corporation may deposit the aggregate redemption price of the Serial
Preferred Shares to be redeemed with any bank or trust company named in
such notice, directed to be paid to the respective holders of the
Serial Preferred Shares so to be redeemed, in amounts equal to the
redemption price of all Serial Preferred Shares so to be redeemed, on
surrender of the stock certificate or certificates held by such
holders, and upon the making of such deposit such holders shall cease
to be shareholders with respect to such shares, and after such notice
shall have been given and such deposit shall have been made such
holders shall have no interest in or claim against the Corporation with
respect to such shares except only to receive such money from such bank
or trust company without interest or the right to exercise, before the
redemption date, any unexpired privileges of conversion. In case less
than all of the outstanding Serial Preferred Shares of any series are
to be redeemed, the Corporation shall select by lot the shares so to be
redeemed in such manner as shall be prescribed by its Board of
Directors
(b) Any Serial Preferred Shares which are redeemed by the Corporation pursuant to the provisions of this Section 4 and any Serial Preferred Shares which are purchased and delivered in satisfaction of any sinking fund requirements provided for shares of such series and any Serial Preferred Shares which are converted in accordance with the express terms thereof shall be cancelled and not reissued. Any Serial Preferred Shares otherwise acquired by the corporation shall resume the status of authorized and unissued Serial Preferred Shares without serial designation.
SECTION 5. (a) The holders of Serial Preferred Shares of any series shall, in case of voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, be entitled to receive in full out of the assets of the Corporation, including its capital, before any amount shall be paid or distributed among the holders of the Common Shares or any other shares ranking junior to the Serial Preferred Shares, the amounts fixed with respect to the shares of such series in accordance with Section 1 of this Division plus an amount equal to all dividends accrued and unpaid thereon to the date of payment of the amount due pursuant to such liquidation, dissolution or winding up of the affairs of the Corporation. In case the net assets of the Corporation legally available therefor are insufficient to permit the payment upon all outstanding Serial Preferred Shares of the full preferential amount to which they are respectively entitled, then such net assets shall be distributed ratably upon outstanding Serial Preferred Shares in proportion to the full preferential amount to which each such share is entitled.
After payment to holders of Serial Preferred Shares of the full preferential amounts as aforesaid, holders of Serial Preferred Shares as such shall have no right or claim to any of the remaining assets of the Corporation.
(a) The merger or consolidation of the Corporation into or with any other corporation, or the merger of any other corporation into it, or the sale, lease or conveyance of all or substantially all the property or business of the Corporation, shall not be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, for the purposes of this Section 5.
SECTION 6. Unless and except to the extent otherwise required by law or provided in the resolution or resolutions of the Board of Directors creating any series of Serial Preferred Shares pursuant to this Division A, the holders of Serial Preferred Shares shall have no voting power with respect to any matter whatsoever.
SECTION 7. The holders of Serial Preferred Shares shall have no preemptive rights to purchase or have offered to them for purchase any shares or other securities of the Corporation, whether now or hereafter authorized.
SECTION 8. For the purpose of this Division A:
Whenever reference is made to shares "ranking junior to the Serial Preferred Shares," such reference shall mean and include all shares of the Corporation in respect of which the rights of the holders thereof as to the payment of dividends or as to distributions in the event or a voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation are junior and subordinate to the rights of the holders of Serial Preferred Shares.
DIVISION B
COMMON SHARES
The Common Shares shall be subject to the express terms of the Serial Preferred Shares and any series thereof and to the express terms of the Preferred Stock. Each Common Share shall be equal to every other Common Share. The holders of Common Shares shall be entitled to one vote for each share upon all matters presented to the shareholders.
The holders of Common Shares shall have no preemptive right to purchase or have offered to them for purchase any shares or other securities of the Corporation, whether now or hereafter authorized.
FIFTH: The names and mailing addresses of the incorporators are as follows:
Name Mailing Address
Anthony E. Efremoff 1200 Harter Bank Building
Canton, Ohio 44702
Terrence P. Kessler 1200 Harter Bank Building
Canton, Ohio 44702
Thomas E. Martin 1200 Harter Bank Building
Canton, Ohio 44702
SIXTH: The names and mailing addresses of the persons who will serve
as the Board of Directors until their successors are elected
and qualify are:
Name Mailing Address
C. R. Michaels 150 Grand Trunk
Hartville, Ohio 44632
K. G. Hungerford, II Hungerford & Co., P.C.
Riverview Center
678 Front Avenue, N.W.
Grand Rapids, Michigan 45904
Richard J. Lacks Lacks Industries, Inc.
1601 Galbraith, S.E.
Grand Rapids, Michigan 49506
John P. Lacks Lacks Industries, Inc.
1601 Galbraith, S.E.
Grand Rapids, Michigan 49506
David Augspurger Kingsley Associates
25625 Southfield Road
Southfield, Michigan 48075
John O'Neill Kingsley Associates
25625 Southfield Road
Southfield, Michigan 48075
Elmo Zumwalt, Jr. 2721 North Lake Drive
Milwaukee, Wisconsin 53211
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Name Mailing Address
Benjamin Weiner 1492 High Ridge Road
Stamford, Connecticut 06903
Otto J. Dax Siemens Corporation
General Motors Building
767 - 5th Avenue
New York, New York 10022
SEVENTH: In furtherance and not in limitation of the powers granted
them by statute, the Board of Directors is hereby authorized:
(1) To alter, make, amend or repeal the By-laws of the
corporation.
(2) From time to time,
a) to issue, sell and dispose of shares of the
authorized and previously unissued capital stock of the
corporation and shares of its outstanding capital stock held
in its treasury;
b) to issue, sell and dispose of the bonds,
debentures, notes and other obligations or evidences of
indebtedness of the corporation convertible into, or carrying
rights to purchase, stock of the corporation of any class; and
c) to authorize and cause to be executed mortgages
and liens upon the real and personal property of the
corporation.
(3) To purchase any of the outstanding shares of the
Corporation at such price and upon such terms as the Directors may
determine.
(4) The corporation may in its By-laws confer powers upon its
Board of Directors in addition to the foregoing, and in addition to the
powers and authorities expressly conferred upon it by statute.
(5) Any former, present or future director, officer or
employee of the company or the legal representative of any such
director, officer, or employee shall be indemnified by the company
a) against reasonable costs, disbursements and
counsel fees paid or incurred where such person has been
successful on the merits or otherwise in any pending,
threatened or completed civil, criminal, administrative or
arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such
action, suit or proceeding, or in defense of any claim, issue
or matter therein, by reason of such person being or having
been such director, officer or employee, and
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b) with respect to any such action, suit, proceeding,
inquiry or investigation for which indemnification is not made
under (a) above, against reasonable costs, disbursements
(which shall include amounts paid in satisfaction of
settlements, judgments, fines and penalties, exclusive,
however, of any amounts paid or payable to the company) and
counsel fees if such person also had no reasonable cause to
believe the conduct was unlawful, with the determination as to
whether the applicable standard of conduct was met to be made
by a majority of the members of the Board of Directors
(sitting as a committee of the Board) who were not parties to
such inquiry, investigation, action, suit or proceeding or by
any one or more disinterested counsel to whom the question may
be referred to the Board of Directors; provided, however, in
connection with any proceeding by or in the right of the
company, no indemnification shall be provided as to any person
adjudged by any court to be liable for negligence or
misconduct except as and to the extent determined by such
court.
The termination of any such inquiry, investigation,
action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent
shall not of itself create a presumption that such person did
not meet the standards of conduct set forth in subsection (b)
above.
Reasonable costs, disbursements and counsel fees
incurred by such person in connection with any inquiry,
investigation action, suit or proceeding may be paid by the
company in advance of the final disposition of such matter if
authorized by a majority of the Board of Directors (sitting as
a committee of the Board) not parties to such matter upon
receipt by the company of an undertaking by or on behalf of
such person to repay such amount unless it is ultimately
determined that such person is entitled to be indemnified as
set forth herein.
The Board of Directors may, at any regular or special
meeting of the Board, by resolution, accord similar
indemnification (prospective or retroactive) to any director,
trustee, officer or employee of any other company who is
serving as such at the request of the company because of the
company's interest in such other company and any officer,
director or employee of any constituent corporation absorbed
by the company in a consolidation or merger, or the legal
representative of any such director, trustee, officer or
employee.
The indemnification herein provided shall not exclude
any other rights to which such person may be entitled as a
matter of law or which may be lawfully granted.
EIGHT: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the
Corporation 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, or (iv) for any transaction
from which the director derived an improper personal benefit.
This paragraph
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shall not eliminate or limit the liability of a director for any act or omission occurring prior to the effective date of its adoption. If the General Corporation Law of the State of Delaware is hereafter amended to authorize corporate action further limiting or eliminating the personal liability of directors, then the liability of a director to the Corporation shall be limited or eliminated to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended from time to time. No repeal or modification of this Article VIII, directly or by adoption of an inconsistent provision of this Certificate of Incorporation, by the stockholders of the Corporation shall be effective with respect to any cause of action, suit claim or other matter, but for this Article VIII, would accrue or arise prior to such repeal or modification.
VINSON & ELKINS L.L.P.
THE TERRACE 7
2801 VIA FORTUNA, SUITE 100
[VINSON&ELKINS LOGO] AUSTIN, TEXAS 78746
ATTORNEYS AT LAW TELEPHONE (512) 542-8400
FAX (512) 542-8612
www.velaw.com
EXHIBIT 5.1
September 4, 2003
Range Resources Corporation
777 Main Street, Suite 800
Fort Worth, Texas 76102
Ladies and Gentlemen:
We have acted as special counsel for Range Resources Corporation, a Delaware corporation (the "Company"), in connection with the exchange of $100,000,000 aggregate principal amount of the Company's 7 3/8% Senior Subordinated Notes due 2013 (the "New Notes") for $100,000,000 aggregate principal amount of the Company's 7 3/8% Senior Subordinated Notes due 2013 (the "Old Notes"). The New Notes are to be offered in exchange for the Old Notes in a registered exchange offer (the "Exchange Offer") pursuant to the Registration Rights Agreement, dated July 21, 2003 (the "Registration Rights Agreement"), by and among the Company, UBS Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA) Inc. and McDonald Investments Inc.
The Old Notes have been, and the New Notes will be, issued pursuant to an Indenture, dated as of July 21, 2003 (the "Indenture"), by and among the Company, Range Energy I, Inc., Range HoldCo, Inc., Range Production Company, Range Energy Ventures Corporation, Gulfstar Energy, Inc., Range Energy Finance Corporation and Bank One, National Association, as trustee (the "Trustee"). Unless the context otherwise requires, each capitalized term used and not defined herein shall have the meaning given such term in the Indenture.
In reaching the opinion set forth herein, we have reviewed originals or copies of the Indenture, the Registration Rights Agreement, the Registration Statement on Form S-4 filed by the Company under the Securities Act of 1933 (the "Securities Act") registering the offering of the New Notes (the "Registration Statement") and such other documents and matters of law that we deemed relevant.
Based upon the foregoing, and subject to the assumptions and qualifications hereinafter stated, we express the opinion that the New Notes, when duly executed, authenticated, issued and delivered in accordance with the Exchange Offer and the Indenture, and when delivered in exchange for the Old Notes, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to (i) laws relating to bankruptcy, insolvency,
Range Resources Corporation
September 4, 2003
fraudulent conveyance, fraudulent transfer, reorganization, rearrangement, liquidation, conservatorship, moratorium and other laws affecting the enforcement of creditors' rights or the collection of debtors' obligations generally and (ii) principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
For purposes of this opinion, we have assumed that (i) all information
contained in all documents reviewed by us is true and correct, (ii) all
signatures on all documents reviewed by us are genuine, (iii) all documents
submitted to us as originals are true and complete, and (iv) all documents
submitted to us as copies are true and complete copies of the originals thereof,
(v) each natural person signing any document reviewed by us had the legal
capacity to do so, and (vi) each person signing any document reviewed by us in a
representative capacity had authority to sign in such capacity.
This opinion is limited in all respects to the corporate laws of the States of Delaware and New York and the federal laws of the United States of America.
This opinion may be filed as an exhibit to the Registration Statement. Consent is also given to the reference to this firm under the caption "Legal Matters" in the Prospectus included in the Registration Statement as having passed on certain legal matters in connection with the New Notes. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
We express no opinion as to any matter other than as expressly set forth above, and no opinion on any other matter may be inferred or implied herefrom. The opinion expressed herein is given as of the date hereof, and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein. The opinion expressed herein is not to be used, circulated, quoted or otherwise referred to in connection with any transaction other than the Exchange Offer or by or to any other person without our prior written consent.
Very truly yours,
/s/ Vinson & Elkins L.L.P. |
EXHIBIT 10.6.5
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (hereinafter referred to as the "Amendment") executed as of the 15th day of July, 2003, by and among RANGE RESOURCES CORPORATION, a Delaware corporation ("Borrower"), BANK ONE, NA, a national banking association ("Bank One"), each of the financial institutions which is a party hereto (as evidenced by the signature pages to this Amendment) or which may from time to time become a party hereto pursuant to the provisions of Section 29 of the Credit Agreement or any successor or assignee thereof (hereinafter collectively referred to as "Lenders", and individually, "Lender"), Bank One, as Administrative Agent ("Agent"), Fleet National Bank, as Co-Documentation Agent, Fortis Capital Corp., as Co-Documentation Agent, JPMorgan Chase Bank, as Co-Syndication Agent, Credit Lyonnais New York Branch, as Co-Syndication Agent, Banc One Capital Markets, Inc., as Joint Lead Arranger and Joint Bookrunner and JPMorgan Securities, Inc., as Joint Lead Arranger and Joint Bookrunner. Capitalized terms used but not defined in this Amendment have the meanings assigned to such terms in that certain Amended and Restated Credit Agreement dated as of May 2, 2002, by and among Borrower, Agent and Lenders (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement").
WITNESSETH:
WHEREAS, the Borrower has advised Agent and the Lenders that it intends to consummate an offering of debt securities in accordance with the terms and conditions of an Offering Memorandum substantially similar to the draft of an Offering Memorandum provided to Agent and Lenders on or about July 16, 2003 (the "Offering Memorandum"), with one or more Book-Running Managers selected by the Borrower (the "Debt Offering"); and
WHEREAS, certain provisions of the Credit Agreement prohibit the Borrower from consummating the Debt Offering without the express written consent of Agent and the Super Majority Lenders; and
WHEREAS, the Borrower has requested the Agent and the Lenders to (i) consent to the consummation of the Debt Offering and waive any Default or Event of Default arising as a result thereof; and (ii) amend the Credit Agreement in certain respects; and Agent and the Lenders have agreed to do so on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the Borrower, Agent and the Lenders, hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction or waiver in writing of each condition precedent set forth in Section 3 hereof, and in reliance on the representations, warranties, covenants and agreements contained in this Amendment, the Credit Agreement shall be amended in the manner provided in this Section 1.
1.1 ADDITIONAL DEFINITIONS. Section 1 of the Credit Agreement shall be and it hereby is amended by adding the following definitions in alphabetical order to such section:
8.75% Senior Subordinated Notes means those certain 8.75% Senior Subordinated Notes due January 15, 2007 issued pursuant to an Indenture dated as of March 14, 1997 by and between Borrower and Fleet National Bank, as Trustee.
Convertible Subordinated Debentures means those certain 6% Convertible Subordinated Debentures due 2007, issued pursuant to an Indenture by and between Borrower and Key Corp. Shareholder Services, Inc., as Trustee.
Disqualified Stock means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof, in whole or in part, on or prior to the Maturity Date, or (ii) requires the payment of any dividend other than dividends which are paid in kind.
Fourth Amendment to Credit Agreement means that certain Fourth Amendment to Amended and Restated Credit Agreement, dated July 15, 2003, by and among the Borrower, Agent and the Lenders
Refinancing Indebtedness means indebtedness of Borrower incurred pursuant to clause (viii) of Section 13(h) hereof and any renewals or extensions thereof.
Refinancing Net Proceeds means an amount equal to the proceeds of the issuance of the Refinancing Securities less any and all transaction costs and expenses incurred by Borrower in connection therewith, regardless of whether all or any portion of such proceeds are applied to prepay the outstanding principal balance of the Notes and accrued interest thereon prior to the application of such proceeds to, or the exchange of Refinancing Securities for, indebtedness evidenced by the Junior Securities pursuant to clause (viii) of Section 13(h) and clause (iii) of Section 13(i).
Refinancing Securities means the notes, instruments, and securities evidencing the Refinancing Indebtedness.
1.2 AMENDED DEFINITION. Each of the following definitions in Section 1 of the Credit Agreement shall be amended as follows:
Junior Securities means, collectively the 8.75% Senior Subordinated Notes, the Convertible Subordinated Debentures, the Trust Convertible Preferred Securities and the Refinancing Securities.
Unscheduled Redeterminations means a redetermination of the Borrowing
Base made at any time other than on the dates set for the regular semi-annual
redetermination of the Borrowing Base which are made (A) at the request of
Borrower (but only once between Borrowing Base redeterminations), (B) at the
request of Super Majority Lenders (but only twice between Borrowing Base
redeterminations) or (C) upon the issuance of any Refinancing Securities,
provided, however, that (i) Super Majority Lenders may require an Unscheduled
Redetermination at any time it appears to Agent or Super Majority Lenders, in
the exercise of their reasonable discretion, that either (a) there has been a
material decrease in the value of the Oil and Gas Properties, or (b) an event
has occurred which is reasonably expected to have a Material Adverse Effect, or
(ii) Super Majority Lenders may require an Unscheduled Redetermination if
Borrower terminates any material agreements entered into in connection with a
Rate Management Transaction used by Lenders in determining the Hydrocarbon
Borrowing Base or if the counterparty to any such material agreement commences,
or has commenced against it any proceeding under any bankruptcy, insolvency or
similar law now or hereafter in effect.
1.3 AMENDMENT TO FINANCIAL STATEMENTS AND REPORTS. Clause (ii) of
Section 12(a) of the Credit Agreement shall be and it hereby is amended by
inserting the following at the end of such clause:
,together with a report demonstrating, in reasonable detail, the use of the Refinancing Net Proceeds during such fiscal quarter, including, without limitation, (w) the initial amount of the Refinancing Net Proceeds immediately following the issuance of the Refinancing Securities and prior to the application of any such Refinancing Net Proceeds to any indebtedness of the Borrower, (x) the amount of the Refinancing Net Proceeds used to refinance, repay, defease or redeem Junior Securities pursuant to and as permitted under clause (viii) of Section 13(h) during such fiscal quarter and cumulatively since the issuance of the Refinancing Securities, (y) the amount of Refinancing Securities issued in exchange for Trust Convertible Preferred Securities during such fiscal quarter and cumulatively since the issuance of the Refinancing Securities and (z) the amount of Refinancing Net Proceeds remaining as of the end of such fiscal quarter after giving effect to any Refinancing Securities exchanged for any Trust Convertible Preferred Securities.
1.4 AMENDMENT TO DEBTS, GUARANTIES AND OTHER OBLIGATIONS. Section 13(h) of the Credit Agreement shall be and it hereby is amended by deleting "or" at the end of clause (vii), deleting clause (viii) of such Section and inserting the following after clause (vii) of such Section as clauses (viii), and (ix) of such Section:
(viii) the incurrence by Borrower, on or before September 30, 2003, of unsecured indebtedness in an aggregate principal amount not to exceed $135,000,000; provided that (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) such indebtedness is subordinated in right of payment to the indebtedness, liabilities and obligations evidenced by the Notes, the Agreement and the other Loan Documents, (C) the stated maturity date with respect to such indebtedness is not earlier than January 1, 2010, (D) the annual interest rate with respect to such indebtedness is fixed at a rate that is less than or equal to 8.5% per annum and is payable no more frequently than quarterly; (E) the Refinancing Net Proceeds are used to refinance or defease all of the issued and outstanding 8.75% Senior Subordinated
Notes not later than sixty (60) days after the issuance of such indebtedness; and (F) all of the Refinancing Net Proceeds in excess of the amount necessary to refinance or defease all of the issued and outstanding 8.75% Senior Subordinated Notes (less the amount, upon issuance, of any Refinancing Securities issued in exchange for the Trust Convertible Preferred Securities) are used to either (x) refinance, repay, defease, or redeem the Subordinated Convertible Debentures or the Trust Convertible Preferred Securities, or (y) prepay, without premium or penalty, the outstanding principal amount of the Notes and accrued interest thereon to the date of prepayment; or
(ix) any renewals or extensions of (but, other than in the case of the Notes, not increases in) any of the foregoing.
1.5 AMENDMENT TO RESTRICTED PAYMENTS. Section 13(i) of the Credit
Agreement shall be and it hereby is amended by deleting "or" at the end of
clause (i), deleting the period "." at the end of clause (ii), inserting "; or"
at the end of clause (ii) and inserting the following after clause (ii) of such
Section as clause (iii) of such Section:
(iii) the redemption or defeasance of the 8.75% Senior Subordinated Notes, the Subordinated Convertible Debentures and the Trust Convertible Preferred Securities with Refinancing Net Proceeds in accordance with and to the extent permitted by clause (viii) of Section 13(h) hereof, and the exchange of Refinancing Securities for the Trust Convertible Preferred Securities; provided that no Default or Event of Default has occurred and is continuing or would result therefrom.
1.6 AMENDMENT TO ISSUANCE OF PREFERRED STOCK. Section 13(p) of the Credit Agreement shall be and it hereby is amended as follows:
(p) Issuance of Preferred Stock. Except as otherwise permitted with the prior written consent of the Super Majority Lenders, Borrower shall not issue any Disqualified Stock after the Effective Date.
1.7 AMENDMENT TO PAYMENTS OR PREPAYMENTS OF OTHER INDEBTEDNESS. Section 13(q) of the Credit Agreement shall be and it hereby is amended by deleting "Section 13(i)(ii)" from such section and inserting "Section 13(i)" in replacement thereof.
1.8 WAIVER OF CERTAIN ADDITIONAL BORROWING BASE ADJUSTMENTS.
Notwithstanding Section 7(c) of the Credit Agreement, Borrower, Agent and
Lenders hereby agree that no increase shall be made in the Borrowing Base with
respect to the issuance of the Refinancing Securities or the acquisition or
redemption of any Junior Securities with Refinancing Net Proceeds.
SECTION 2. CONSENT AND WAIVER. In reliance on the representations, warranties, covenants and agreements contained in this Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 4 hereof, the Required Lenders hereby (a) consent to (i) the consummation of the Debt Offering in accordance with the terms and conditions of the Offering Memorandum, and (ii) the execution and delivery by Borrower of any and all agreements,
documents and instruments necessary to evidence the Debt Offering (the "Debt Offering Documents"), and the performance of its obligations and the exercise of its rights under and pursuant thereto, and (b) waive compliance by Borrower with each provision of the Credit Agreement and the other Loan Documents to the extent, but only to the extent, that the consummation of the Debt Offering and the execution and delivery of the Debt Offering Documents by Borrower, and the performance of its obligations and the exercise of its rights under and pursuant thereto, violate such provisions or result in a Default or Event of Default under the Credit Agreement or the other Loan Documents. The consent and waiver herein contained is expressly limited as follows: (x) such consent and waiver is limited solely to the consummation of the Debt Offering in accordance with the terms of the Debt Offering Documents most recently provided to Agent, and (y) such consent and waiver is a limited, one-time consent and waiver, and nothing contained herein shall obligate the Lenders to grant any additional or future consent or waiver with respect to, or in connection with, any provision of any Loan Document.
SECTION 3. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Except to the extent its provisions are specifically amended, modified or superseded by this Amendment, the representations, warranties and affirmative and negative covenants of the Borrower contained in the Credit Agreement are incorporated herein by reference for all purposes as if copied herein in full. The Borrower hereby restates and reaffirms each and every term and provision of the Credit Agreement, as amended, including, without limitation, all representations, warranties and affirmative and negative covenants. Except to the extent its provisions are specifically amended, modified or superseded by this Amendment, the Credit Agreement, as amended, and all terms and provisions thereof shall remain in full force and effect, and the same in all respects are confirmed and approved by the Borrower and the Lenders.
SECTION 4. CONDITIONS. The amendments to the Credit Agreement contained in
Section 1 of this Amendment shall be effective upon the satisfaction of each of
the conditions set forth in this Section 3.
4.1 EXECUTION AND DELIVERY. The Borrower and each Guarantor shall have executed and delivered this Amendment, and other required documents, all in form and substance satisfactory to the Agent;
4.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Borrower under this Amendment are true and correct in all material respects as of such date, as if then made (except to the extent that such representations and warranties related solely to an earlier date);
4.3 NO EVENT OF DEFAULT. No Event of Default shall have occurred and be continuing nor shall any event have occurred or failed to occur which, with the passage of time or service of notice, or both, would constitute an Event of Default;
4.4 WORK FEE. Agent shall have received, for the benefit of the Lenders executing and delivering this Amendment to Borrower on or before 5:00 p.m. (Chicago time) on Wednesday, July 16, 2003, a work fee of $5,000 for each such Lender.
4.5 OTHER DOCUMENTS. The Agent shall have received such other instruments and documents incidental and appropriate to the transaction provided for herein as the Agent or its counsel may reasonably request, and all such documents shall be in form and substance satisfactory to the Agent;
4.6 LEGAL MATTERS SATISFACTORY. All legal matters incident to the consummation of the transactions contemplated hereby shall be reasonably satisfactory to special counsel for the Agent retained at the expense of Borrower.
SECTION 5. MISCELLANEOUS.
5.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants that all factual information, if any, heretofore and contemporaneously furnished by or on behalf of Borrower to Agent for purposes of or in connection with this Amendment does not contain any untrue statement of a material fact or omit to state any material fact necessary to keep the statements contained herein or therein from being misleading. Each of the foregoing representations and warranties shall constitute a representation and warranty of Borrower made under the Credit Agreement, and it shall be an Event of Default if any such representation and warranty shall prove to have been incorrect or false in any material respect at the time given. Each of the representations and warranties made under the Credit Agreement (including those made herein) shall survive and not be waived by the execution and delivery of this Amendment or any investigation by Lenders.
5.2 INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the Lenders and their respective officers, employees, agents, attorneys and representatives (singularly, an "Indemnified Party", and collectively, the "Indemnified Parties") from and against any loss, cost, liability, damage or expense (including the reasonable fees and out-of-pocket expenses of counsel to the Lender, including all local counsel hired by such counsel) ("Claim") incurred by the Lenders in investigating or preparing for, defending against, or providing evidence, producing documents or taking any other action in respect of any commenced or threatened litigation, administrative proceeding or investigation under any federal securities law, federal or state environmental law, or any other statute of any jurisdiction, or any regulation, or at common law or otherwise, which is alleged to arise out of or is based upon any acts, practices or omissions or alleged acts, practices or omissions of the Borrower or its agents or arises in connection with the duties, obligations or performance of the Indemnified Parties in negotiating, preparing, executing, accepting, keeping, completing, countersigning, issuing, selling, delivering, releasing, assigning, handling, certifying, processing or receiving or taking any other action with respect to the Loan Documents and all documents, items and materials contemplated thereby even if any of the foregoing arises out of an Indemnified Party's ordinary negligence. The indemnity set forth herein shall be in addition to any other obligations or liabilities of the Borrower to the Lenders hereunder or at common law or otherwise, and shall survive any termination of this Amendment, the expiration of the Loan and the payment of all indebtedness of the Borrower to the Lenders hereunder and under the Notes, provided that the Borrower shall have no obligation under this section to the Lenders with respect to any of the foregoing arising out of the gross negligence or willful misconduct of the Lenders. If any Claim
is asserted against any Indemnified Party, the Indemnified Party shall endeavor to notify the Borrower of such Claim (but failure to do so shall not affect the indemnification herein made except to the extent of the actual harm caused by such failure). The Indemnified Party shall have the right to employ, at the Borrower's expense, counsel of the Indemnified Parties' choosing and to control the defense of the Claim. The Borrower may at its own expense also participate in the defense of any Claim. Each Indemnified Party may employ separate counsel in connection with any Claim to the extent such Indemnified Party believes it reasonably prudent to protect such Indemnified Party. THE PARTIES INTEND FOR THE PROVISIONS OF THIS SECTION TO APPLY TO AND PROTECT EACH INDEMNIFIED PARTY FROM THE CONSEQUENCES OF STRICT LIABILITY IMPOSED OR THREATENED TO BE IMPOSED ON ANY INDEMNIFIED PARTY AS WELL AS FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE, CONTRIBUTING, OR CONCURRING CAUSE OF ANY CLAIM, BUT NOT FROM ANY PORTION OF SUCH CLAIM ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PARTY.
5.3 COUNTERPARTS. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
5.4 WRITTEN CREDIT AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED, REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN AND AMONG THE PARTIES.
5.5 NO IMPAIRMENT. Borrower acknowledges and agrees that the renewal, extension and amendment of the Credit Agreement shall not be considered a novation of account or new contract but that all existing rights, titles, powers, and estates in favor of the Lenders constitute valid and existing obligations in favor of the Lenders. Borrower confirms and agree that (a) neither the execution of this Fourth Amendment nor any other Loan Document nor the consummation of the transactions described herein and therein shall in any way effect, impair or limit the covenants, liabilities, obligations and duties of the Borrower under the Loan Documents and (b) the obligations evidenced and secured by the Loan Documents continue in full force and effect.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to Credit Agreement to be duly executed as of the date first above written.
BORROWER:
RANGE RESOURCES CORPORATION
a Delaware corporation
By: /s/ JOHN H. PINKERTON
-----------------------------------
Name: John H. Pinkerton
Title: President
|
LENDERS:
BANK ONE, NA, a national banking
association (Main Office Chicago) as a
Lender and Administrative Agent
By: /s/ THOMAS E. BOTH
-----------------------------------
Name: Thomas E. Both
Title: Director, Capital Markets
|
BANK OF SCOTLAND
JPMORGAN CHASE BANK
By: /s/ ROBERT C. MERTENSOTTO
------------------------------------
Name: Robert C. Mertensotto
Title: Managing Director
|
COMPASS BANK
By: /s/ JOHN M. FALBO
------------------------------------
Name: John M. Falbo
Title: Senior Vice President
|
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ PHILLPPE SOUSTRA
------------------------------------
Name: Phillppe Soustra
Title: Executive Vice President
|
FLEET NATIONAL BANK
By: /s/ JEFFREY H. RATHKAMP
------------------------------------
Name: Jeffrey H. Rathkamp
Title: Director
|
FORTIS CAPITAL CORP.
By: /s/ CHRISTOPHER S. PARADA
------------------------------------
Name: Christopher S. Parada
Title: Vice President
By: /s/ DARRELL W. HOLLEY
------------------------------------
Name: Darrell W. Holley
Title: Managing Director
|
NATEXIS BANQUES POPULAIRES
By: /s/ DONOVAN C. BROUSSARD
------------------------------------
Name: Donovan C. Broussard
Title: Vice President and Group Manager
By: /s/ DANIEL PAYER
------------------------------------
Name: Daniel Payer
Title: Vice President
|
COMERICA BANK-TEXAS
By: /s/ PETER SEFZIK
------------------------------------
Name: Peter Sefzik
Title: Assistant Vice President - Texas
Division
|
CONSENT AND REAFFIRMATION
The undersigned (each a "Guarantor") hereby (i) acknowledges receipt of a copy of the foregoing Fourth Amendment to Amended and Restated Credit Agreement (the "Fourth Amendment"); (ii) consents to Borrower's execution and delivery thereof; (iii) agrees to be bound thereby; (iv) affirms that nothing contained therein shall modify in any respect whatsoever its guaranty of the obligations of the Borrower to Lenders pursuant to the terms of its Guaranty in favor of Agent and the Lenders (the "Guaranty") and (v) reaffirms that the Guaranty is and shall continue to remain in full force and effect. Although Guarantor has been informed of the matters set forth herein and has acknowledged and agreed to same, Guarantor understands that the Lenders have no obligation to inform Guarantor of such matters in the future or to seek Guarantor's acknowledgment or agreement to future amendments or waivers, and nothing herein shall create such duty.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of the date of the Fourth Amendment.
GUARANTORS:
RANGE ENERGY I, INC.
a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
RANGE HOLDCO, INC.
a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
RANGE PRODUCTION COMPANY
a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
RANGE ENERGY VENTURES
CORPORATION, a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
GULFSTAR ENERGY, INC.
a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
RANGE ENERGY FINANCE CORPORATION
a Delaware corporation
By: /s/ JOHN H. PINKERTON
------------------------------------
Name: John H. Pinkerton
Title: President
|
EXHIBIT 10.14
PRINTED -- 8/26/03
SCUDDER
INVESTMENTS
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
FULL-FLEX PROFIT SHARING PLAN (With 401(k) Option)
Non-Standardized (003)
ADOPTION AGREEMENT
AMENDED FOR THE URUGUAY ROUND AGREEMENTS ACT ("GATT"), THE UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT ("USERRA"), THE SMALL BUSINESS JOB PROTECTION ACT OF 1996 ("SBJPA"), THE TAXPAYER RELIEF ACT OF 1997 ("TRA '97"), THE INTERNAL REVENUE SERVICE RESTRUCTURING AND REFORM ACT OF 1998 AND THE COMMUNITY RENEWAL TAX RELIEF ACT OF 2000 (COLLECTIVELY REFERRED TO AS "GUST").
NATIONAL OFFICE LETTER
DATE: __________
SERIAL NUMBER: __________
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
TABLE OF CONTENTS
A. PREAMBLE................................................... 1
B. LEAD AND PARTICIPATING EMPLOYER INFORMATION................ 1
Lead Employer: [Plan Sec. 2.40]............................ 1
Participating Employers: [Plan Secs. 2.50 and 15.1]........ 1
C. PLAN INFORMATION........................................... 1
Plan: [Plan Sec. 1.1]...................................... 1
Plan Year: [Plan Sec. 2.58]................................ 2
Plan Administrator: [Plan Secs. 2.54 and 14.1]............. 2
Funding Vehicle: [Plan Secs. 1.3 and 2.32]................. 2
Controlling Law State: [Plan Sec. 1.4]..................... 2
D. ELIGIBILITY AND SERVICE REQUIREMENTS....................... 3
Excluded Employment Categories: [Plan Sec. 2.14(a)]........ 3
Age and Service Requirements: [Plan Sec. 3.1(a)]........... 4
Entry: [Plan Secs. 2.27 and 3.1(a)]........................ 4
Hours of Service: [Plan Sec. 2.64]......................... 4
Method to Determine Service for Eligibility Purposes:
[Plan Sec. 2.64]........................................ 4
Method to Determine Service for Vesting Purposes:
[Plan Sec. 2.64]........................................ 5
Break in Service Rules for Eligibility and Vesting:
[Plan Secs. 2.8, 3.3 and 10.2(m)]....................... 6
Predecessor Employer Credit: [Plan Secs. 2.59 and 2.64(c)]. 7
Waiver of Entry Requirements: [Plan Sec. 3.1(f)]........... 7
Election Not to Participate: [Plan Sec. 3.5]............... 8
E. PLAN COMPENSATION.......................................... 8
Plan Compensation: [Plan Sec. 2.56]........................ 8
Plan Compensation for the Plan Year: [Plan Sec. 2.57]...... 10
Imputed Earnings While Disabled: [Plan Sec. 2.56(e)]....... 10
F. EMPLOYEE PRE-TAX COMPONENT................................. 10
Employee Pre-Tax Contributions: [Plan Sec. 4.1]............ 10
Age and Service Requirements: [Plan Sec. 3.1(a)]........... 10
Entry: [Plan Secs. 2.27 and 3.1(a)]........................ 11
Pay Reduction Contributions - Minimums/Maximums:
[Plan Sec. 4.1(a)]...................................... 11
Pay Reduction Agreements: [Plan Sec. 4.1(a)]............... 13
Cash or Deferred Contributions: [Plan Sec. 4.1(c)]......... 13
In-Service Withdrawals: [Plan Sec. 11.2]................... 14
G. EMPLOYER AFTER-TAX COMPONENT............................... 14
Employer After-Tax Contributions: [Plan Sec. 4.2].......... 14
Age and Service Requirements/Entry:
[Plan Secs. 2.27 and 3.1(a)] ........................... 14
Payroll Withholding Contributions: [Plan Sec. 4.2(a)]...... 14
Direct Contributions: [Plan Sec. 4.2(c)]................... 15
Required Contributions - Thrift Plan: [Plan Sec. 4.2(b)]... 15
In-Service Withdrawals: [Plan Sec. 11.2]................... 16
H. EMPLOYER SAFE-HARBOR COMPONENT............................. 16
Employer Safe-Harbor Contributions [Plan Secs. 5.1 and 6.1] 16
Age and Service Requirements: [Plan Sec. 3.1(a)]........... 17
Employer Safe-Harbor Contributions [Plan Sec. 5.1]......... 17
In-Service Withdrawals: [Plan Sec. 11.2]................... 18
I. EMPLOYER REGULAR MATCHING COMPONENT........................ 19
Employer Regular Matching Contributions: [Plan Sec. 5.2]... 19
Excluded Employment Categories: [Plan Sec. 2.14(a)]........ 19
Age and Service Requirements: [Plan Sec. 3.1(a)]........... 19
Entry: [Plan Secs. 2.27 and 3.1(a)]........................ 19
Requirements to Receive an Employer Regular Matching
Contribution: [Plan Sec. 5.2(a) or (b)]................. 20
Matching Formula: [Plan Sec. 5.2(a) or (b)]................ 21
Minimums and Maximums: [Plan Sec. 5.2(d)].................. 27
Vesting Schedule for Employer Regular Matching
Component: [Plan Sec. 10.2(e)].......................... 27
Treatment of Forfeitures: [Plan Sec. 5.2(g)]............... 28
In-Service Withdrawals: [Plan Sec. 11.2]................... 29
J. EMPLOYER REGULAR PROFIT SHARING COMPONENT.................. 30
Profit Sharing Contributions: [Plan Sec. 6.2].............. 30
Excluded Employment Categories: [Plan Sec. 2.14(a)]........ 30
Age and Service Requirements: [Plan Sec. 3.1(a)]........... 30
Entry: [Plan Secs. 2.27 and 3.1(a)]........................ 30
Requirements to Share in the Employer Regular Profit
Sharing Contribution: [Plan Sec. 6.2(a) or (b)]......... 31
Contribution/Allocation Formula: [Plan Sec. 6.2(a) or (b)]. 32
Vesting Schedule for Employer Regular Profit Sharing
Component: [Plan Sec. 10.2(e)].......................... 37
Treatment of Forfeitures: [Plan Sec. 6.2(d)]............... 37
In-Service Withdrawals: [Plan Sec. 11.2]................... 38
K. EMPLOYER QUALIFIED MATCHING AND PROFIT SHARING COMPONENT... 39
Employer Qualified Contributions: [Plan Secs. 5.3 and 6.3]. 39
Employer Qualified Matching Contributions (QMACs):
[Plan Sec. 5.3]......................................... 39
Employer Qualified Profit Sharing Contributions (QNECs):
[Plan Sec. 6.3]......................................... 40
In-Service Withdrawals: [Plan Sec. 11.2]................... 41
L. EMPLOYEE ROLLOVER COMPONENT................................ 42
Employee Rollover Contributions: [Plan Sec. 4.5]........... 42
In-Service Withdrawals: [Plan Sec. 11.2]................... 42
M. RETIREMENT, DISABILITY AND HARDSHIP........................ 42
Retirement Age: [Plan Secs. 2.19 and 2.47]................. 42
Disability: [Plan Sec. 2.18]............................... 42
Hardship: [Plan Sec. 2.33]................................. 43
N. SPECIAL VESTING RULES...................................... 43
Vesting Schedule: [Plan Sec. 10.2(e)]...................... 43
Service Disregarded for Vesting: [Plan Sec. 10.2(f)]....... 43
Special Vesting Events: [Plan Sec. 10.2(b)]................ 44
Forfeitures: [Plan Sec. 10.2(g)]........................... 44
Vesting Formula for Partially Vested:
[Plan Sec. 10.2(c) and (g)]............................. 44
Reinstatement upon Return to Service: [Plan Sec. 10.2(h)].. 45
Special Vesting Rules for Life Insurance: [Plan Sec. 10.3]. 45
O. EMPLOYER SECURITIES........................................ 45
Employer Securities: [Plan Sec. 14.15 and 14.16]........... 45
Voting Provisions: [Plan Secs. 14.15(d) and 14.16]......... 45
Tender Provisions: [Plan Secs. 14.15(e) and 14.16]......... 46
In-Kind Distribution Option: [Plan Sec. 12.3(c)]........... 46
|
P. PAYMENT OF BENEFITS........................................ 47
Balances Less Than Cash-Out Amount: [Plan Sec. 12.4]....... 47
Balances More Than Cash-Out Amount: [Plan Sec. 12.3(a)].... 47
Payment Forms: [Plan Secs. 12.3(b) and 12.6]............... 48
Payment Medium: [Plan Sec. 12.3(c)]........................ 49
Beneficiary: [Plan Secs. 13.1 and 13.3].................... 49
Minimum Distributions: [Plan Secs. 2.62 and 12.7].......... 49
Q. TOP-HEAVY PROVISIONS....................................... 51
Top-Heavy Eligible Participant: [Plan Sec. 17.4(k)]........ 51
Top-Heavy Contribution Requirement: [Plan Sec. 17.1]....... 51
Top-Heavy Vesting Schedule: [Plan Sec. 17.2]............... 51
Coordination With Other Qualified Plans: [Plan Sec. 17.1].. 51
R. CODE SECTION 415 COORDINATION.............................. 52
415 Compensation: [Plan Sec. 18.4(b)]...................... 52
Limitation Year: [Plan Sec. 18.4(h)]....................... 52
Correction Method: [Plan Sec. 18.1(b)]..................... 52
Coordination With Other Plans: [Plan Sec. 18.2 and 18.3]... 53
S. SPECIAL TESTING RULES...................................... 53
Highly Compensated Employees: [Plan Sec. 2.35]............. 53
ADP/ACP Testing Method: [Plan Sec. 19.2 and 19.3].......... 54
Other Elections Regarding ADP/ACP Testing:
[Plan Sec. 19.2, 19.3 and 19.4]......................... 54
Gain or Loss on Excess Contributions: [Plan Sec. 19.1(d),
19.2(d) and 19.3(d)].................................... 55
T. SPECIAL EFFECTIVE DATE RULES............................... 55
U. FROZEN CONTRIBUTIONS ACCOUNTS.............................. 56
V. OTHER INFORMATION FOR THE PARTICIPATING EMPLOYERS.......... 56
W. SPONSOR OF THE PROTOTYPE................................... 57
X. RELIANCE ON IRS OPINION LETTER............................. 58
Y. LEAD EMPLOYER SIGNATURE.................................... 58
Z. TRUSTEE OR CUSTODIAN SIGNATURE............................. 59
|
SCUDDER
INVESTMENTS
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
FULL-FLEX PROFIT SHARING PLAN (With 401(k) Option)
Non-Standardized (003)
ADOPTION AGREEMENT
A. PREAMBLE
A.1. BY THIS AGREEMENT, THE LEAD EMPLOYER HEREBY ... [CHECK ONE]:
a. [ ] adopts a new profit sharing plan as of ... [complete]:
1. Original Effective Date: __ [month day, year].
b. [X] amends/restates its existing profit sharing plan effective as of ... [complete 1. and 2.]:
1. Amendment Effective Date: January 1, 2003 [month day, year].
2. Original Effective Date: January 1, 1989 [month day, year]. [NOTE: INSERT THE ORIGINAL
EFFECTIVE DATE OF THIS PLAN, WHETHER AS THIS PROTOTYPE, ANOTHER
PROTOTYPE, OR IN ANY OTHER FORM. IF TWO OR MORE PLANS HAVE BEEN
MERGED OR CONSOLIDATED, INSERT THE ORIGINAL EFFECTIVE DATE OF THE
PLAN SHOWN AS THE SURVIVING PLAN FOR GOVERNMENT FILING PURPOSES
(E.G., FORM 5500).]
|
B. LEAD AND PARTICIPATING EMPLOYER INFORMATION
LEAD EMPLOYER: B.1. Lead Employer Name: Range Resources Corporation.
[PLAN SEC. 2.40]
B.2. Lead Employer EIN: 34-1312571.
PARTICIPATING EMPLOYERS: B.3. The Participating Employers are the ... [check each that applies]: [NOTE: IF
[PLAN SECS. 2.50 AND 15.1] THERE ARE MORE THAN THREE PARTICIPATING EMPLOYERS, ATTACH THE PARTICIPATING
EMPLOYER ADDENDUM.]
a. [X] Lead Employer.
b. [ ] following Controlled Group Members ... [complete]:
1. Participating Employer:
Name: ____.
Employer EIN: ____.
2. Participating Employer:
Name: ____.
Employer EIN: ____.
3. Participating Employer:
Name: ____.
Employer EIN: ____.
[NOTE: A CONTROLLED GROUP MEMBER WILL IMMEDIATELY CEASE TO BE A PARTICIPATING
EMPLOYER AS OF THE DATE IT CEASES TO BE A CONTROLLED GROUP MEMBER.]
|
C. PLAN INFORMATION
PLAN: C.1. Plan Name: Range Resources Corporation 401(k) Plan.
[PLAN SEC. 1.1]
C.2. Plan Number: 002. [NOTE: THIS IS THE THREE-DIGIT IDENTIFYING NUMBER (E.G.,
001) THAT THE EMPLOYER ASSIGNS FOR GOVERNMENT FILING PURPOSES (E.G., FORM
5500).]
PLAN YEAR: C.3. The Plan Year is the twelve-consecutive-month period ending each December 31
|
[PLAN SEC. 2.58] [month day] [check each that applies]:
a. [ ] The first Plan Year is a short year that began on the Original Effective
Date and ended ___ [month day, year].
b. [ ] The Plan Year has been amended. The last Plan Year before the amendment
ended ___ [month day, year], and the short Plan Year resulting from the
amendment began the next day and ended ___ [month day, year].
PLAN ADMINISTRATOR: C.4. The Plan Administrator is the ... [check one]:
[PLAN SECS. 2.54 AND 14.1]
a. [X] Lead Employer. [NOTE: THE LEAD EMPLOYER MAY DELEGATE ADMINISTRATIVE
AUTHORITY TO AN INDIVIDUAL OR COMMITTEE.]
b. [ ] following individual or entity ... [complete]:
Name: ____.
c. [ ] following committee of individuals ... [check one]: [NOTE: EITHER THE NAME
OF THE COMMITTEE OR THE INDIVIDUAL COMMITTEE MEMBERS MUST BE SPECIFIED.]
1. [ ] Name of committee: ____.
2. [ ] Committee members ... [complete]:
Name: ____.
Name: ____.
Name: ____.
Name: ____.
Name: ____.
Name: ____.
Name: ____.
FUNDING VEHICLE: C.5. The Funding Vehicle(s) for the Plan include ... [check each that applies]:
[PLAN SECS. 1.3 AND 2.32]
a. [X] a Trust Fund with ... [check each that applies]:
1. [ ] individual trustee(s). [NOTE: INDIVIDUAL TRUSTEE(S) MAY SERVE ON
A DISCRETIONARY OR DIRECTED BASIS PURSUANT TO THE TRUST AGREEMENT.]
2. [X] a financial organization serving pursuant to the Trust Agreement
... [check one]:
a. [X] for a Directed Trustee.
b. [ ] with a Discretionary Trustee Option.
b. [ ] a Custodial Account. [NOTE: THIS OPTION IS APPROPRIATE ONLY FOR A PLAN
MAINTAINED BY AN UNINCORPORATED BUSINESS AND THAT COVERS SELF-EMPLOYED
INDIVIDUALS. ALSO, THE CUSTODIAN MUST BE A BANK OR OTHER ORGANIZATION
AUTHORIZED TO ACT AS A CUSTODIAN WITH RESPECT TO QUALIFIED PLANS.]
c. [ ] Annuity Funding Contract(s).
CONTROLLING LAW STATE: C.6. The Plan will be construed and administered in accordance with the laws of the
[PLAN SEC. 1.4] State or Commonwealth of New Hampshire to the extent that such laws are not
preempted by the laws of the United States of America.
|
D. ELIGIBILITY AND SERVICE REQUIREMENTS
EXCLUDED EMPLOYMENT CATEGORIES: D.1. Covered Employment does not include employment as ... [check each of a. through
[PLAN SEC. 2.14(a)] l. that applies, or check m. or n.]: [NOTE: COVERED EMPLOYMENT ONLY INCLUDES
EMPLOYMENT WITH A PARTICIPATING EMPLOYER. HOWEVER, IT DOES NOT INCLUDE EMPLOYMENT
AS A COLLECTIVE BARGAINING EMPLOYEE UNLESS THE COLLECTIVE BARGAINING AGREEMENT
PROVIDES FOR PARTICIPATION IN THE PLAN UNDER THE TERMS SET FORTH IN THIS ADOPTION
AGREEMENT.]
a. [ ] a non-resident alien who receives no earned income (within the meaning of Code
Section 911(d)(2)) from a Participating Employer which constitutes income from
sources within the United States (within the meaning of Code Section 861(a)(3)),
or who receives such earned income but it is all exempt from income tax in the
United States under the terms of an income tax convention.
b. [ ] a Highly Compensated Employee.
[NOTE: EXCLUDING ANY OF THE FOLLOWING CATEGORIES MAY RESULT IN FAILURE TO SATISFY
THE COVERAGE REQUIREMENTS OF CODE SECTION 410(b).]
c. [ ] a Key Employee.
d. [X] a Leased Employee.
e. [ ] a Self-Employed Individual (that is, a sole proprietor or partner with respect
to a Participating Employer).
f. [ ] a salaried Employee.
g. [ ] an hourly-wage Employee.
h. [X] an Employee paid primarily on a commission basis.
i. [ ] an Employee working outside the United States.
j. [ ] a citizen or resident of a foreign country, except those who work in the United
States under the following VISA or NAFTA categories ... [check one]:
1. [ ] All categories are excluded except as expressly required by United
States Immigration Law.
2. [ ] The following categories are included [specify]: ____.
k. [ ] an Employee in any of the following units or locations [specify]: ___ [NOTE: TO
EXCLUDE ALL EMPLOYEES OF A CONTROLLED GROUP MEMBER, DO NOT DESIGNATE THAT
CONTROLLED GROUP MEMBER AS A PARTICIPATING EMPLOYER.]
l. [X] other [specify]: Temporary employees, Reclassified employees.
m. [ ] The Plan is exclusively a collective bargaining plan - thus, the only Employees
Collective in Covered Employment are those Collective Bargaining Employees who are covered
Bargaining Only Plan by the following collective bargaining agreement(s) that provides for
participation in the Plan ... [complete]: [NOTE: ALL OTHER EMPLOYEES ARE EXCLUDED
FROM ALL COMPONENTS.]
1. ____.
2. ____.
3. ____.
4. ____.
5. ____.
n. [ ] The Plan is exclusively a "prevailing wage" plan - thus, the only Employees in
Prevailing Wage Only Covered Employment are those who are employed on prevailing wage projects
Plan specified in J.8.f. or on the Prevailing Wage Addendum. [NOTE: ALL OTHER EMPLOYEES
ARE EXCLUDED FROM ALL COMPONENTS.]
D.2. Covered Employment ... [check one]:
a. [X] does not include employment during the transition period following a stock or
asset acquisition described in Code Section 410(b)(6)(C) ... [check if applicable]:
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1. [ ] subject to the following exceptions [complete]: [NOTE: FOR EACH LISTED
ACQUISITION, EMPLOYMENT BECOMES COVERED EMPLOYMENT AS OF THE EFFECTIVE
DATE LISTED FOR THAT ACQUISITION (UNLESS THE EMPLOYMENT IS EXCLUDED
UNDER D.1.).]
Acquisition: _____.
Effective Date: _____.
Acquisition: _____.
Effective Date: _____.
Acquisition: _____.
Effective Date: _____.
b. [ ] includes employment during the transition period following a stock or asset
acquisition described in Code Section 410(b)(6)(C) (unless the employment is
excluded under D.1.).
[NOTE: THIS PROVISION APPLIES ONLY TO AN INDIVIDUAL WHO BECOMES AN EMPLOYEE
AS A RESULT OF THE ACQUISITION. THE "TRANSITION PERIOD" BEGINS ON THE DATE OF
SUCH ACQUISITION AND ENDS ON THE LAST DAY OF THE FIRST PLAN YEAR BEGINNING
AFTER THE DATE OF SUCH ACQUISITION (OR, IF EARLIER, UPON ANY SIGNIFICANT CHANGE
IN COVERAGE OF THE PLAN OTHER THAN AS A RESULT OF SUBSEQUENT ACQUISITION).]
AGE AND SERVICE REQUIREMENTS: D.3. The age requirement for participation will be determined separately for each
[PLAN SEC. 3.1(a)] Component, as specified in F.2., G.2., H.2., I.3. and J.3.
D.4. The service requirement for participation will be determined separately for
each Component, as specified in F.3., G.2., H.2., I.4. and J.4.
ENTRY: D.5. An Employee in Covered Employment will become an Active Participant in a
[PLAN SECS. 2.27 AND 3.1(a)] Component on the Entry Date that coincides with or next follows the date
he/she satisfies the age and service requirements for such Component, except
as otherwise provided in J.5. with respect to the Employer Regular Profit
Sharing Component.
D.6. The Entry Dates will be determined separately for each Component, as specified
in F.5., G.2., H.2., I.6. and J.6.
HOURS OF SERVICE: D.7. An Employee for whom a record of actual hours is not maintained or available
[PLAN SEC. 2.64] (e.g., salaried employees) will be credited with ... [check one]:
[COMPLETE IF HOURS ARE a. [ ] 190 Hours of Service for each month
USED FOR ANY PURPOSE - b. [ ] 95 Hours of Service for each semi-monthly payroll period
E.G., ELIGIBILITY, c. [X] 45 Hours of Service for each week
VESTING OR ALLOCATIONS] d. [ ] 10 Hours of Service for each day
... in which he/she has one or more Hours of Service.
D.8. An Employee for whom a record of actual hours is maintained and available will
be credited with ... [check one]:
a. [X] actual Hours of Service.
b. [ ] the same equivalency as specified in D.7.
METHOD TO DETERMINE SERVICE D.9. Service will be determined for eligibility purposes using the ... [check one]:
FOR ELIGIBILITY PURPOSES:
[PLAN SEC. 2.64] a. [ ] hour count method ... [complete as necessary] [NOTE: THIS OPTION SHOULD BE
ELECTED IF THE HOUR COUNT METHOD IS USED TO DETERMINE SERVICE UNDER ANY
[COMPLETE ONLY IF A COMPONENT.]
SERVICE REQUIREMENT IS
IMPOSED ON PARTICIPATION 1. An Employee must complete at least ___ [1,000 or less] Hours of
IN ONE OR MORE COMPONENTS] Service during an eligibility computation period for it to count as
a year of Service.
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2. The eligibility computation period is the twelve-consecutive-month period
beginning on the Service Commencement Date and each ... [check one]:
a. [ ] Plan Year beginning after the Service Commencement Date.
b. [ ] anniversary of the Service Commencement Date.
3. An Employee will have satisfied the service requirement as of the ...
[check one]:
a. [ ] end of the eligibility computation period during which
b. [ ] date during the eligibility computation period as of which
... he/she has completed the required Hours of Service.
4. The hour count method applies to ... [check one]:
a. [ ] all Employees.
b. [ ] Employees who are ... [check each that applies]:
1. [ ] classified as "full-time"
2. [ ] classified as "part-time"
3. [ ] classified as "temporary" or "seasonal"
4. [ ] paid on an hourly-wage basis
5. [ ] paid on a salaried basis
6. [ ] employed with the following Participating Employers
[specify]: _____,
... and the elapsed time method applies to all other Employees.
b. [ ] elapsed time method.
METHOD TO DETERMINE SERVICE D.10. Service will be determined for vesting purposes using the ... [check one]:
FOR VESTING PURPOSES:
[PLAN SEC. 2.64] a. [X] hour count method ... [complete as necessary]
[COMPLETE ONLY IF A 1. An Employee must complete at least 1000 [1,000 or less] Hours of
VESTING SCHEDULE APPLIES Service during a vesting computation period for it to count as a
WITH RESPECT TO THE year of Service.
EMPLOYER REGULAR MATCHING
OR REGULAR PROFIT SHARING 2. The vesting computation period is the ... [check one of a. through c.,
COMPONENT] and check d. if it applies]:
a. [X] Plan Year.
b. [ ] twelve-consecutive-month period ending each ____ [month day].
c. [ ] twelve-consecutive-month period beginning on the Service
Commencement Date and each anniversary of the Service
Commencement Date.
[check d. if the vesting computation period has been amended]
d. [ ] The vesting computation period has been amended. The
last vesting computation period before the amendment ended
____ [month day, year], the special vesting computation
period resulting from the amendment began ____ [month day,
year] and ended ____ [month day, year], and the vesting
computation period after the amendment is specified above
beginning ____ [month day, year]. [NOTE: THE SPECIAL
VESTING COMPUTATION PERIOD MUST BE TWELVE MONTHS IN LENGTH.]
3. A Break in Service will occur if the Employee has 500 [500 or less] or
fewer Hours of Service during a vesting computation period.
4. The hour count method applies to ... [check one]:
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a. [ ] all Participants.
b. [ ] Participants who are ... [check each that applies]:
1. [ ] classified as "full-time"
2. [ ] classified as "part-time"
3. [ ] classified as "temporary" or "seasonal"
4. [ ] paid on an hourly-wage basis
5. [ ] paid on a salaried basis
6. [ ] employed with the following Participating Employers
[specify]: ____,
... and the elapsed time method applies to all other
Participants, with Service calculated based on completed years
of Service (disregarding fractional years).
b. [ ] elapsed time method, with Service for vesting purposes being calculated at
Termination of Service based on ... [check one]:
1. [ ] completed years of Service (disregarding fractional years).
2. [ ] completed and fractional years of Service, with fractional years
calculated based on completed ... [check one]:
a. [ ] days (365 completed days equals one year).
b. [ ] months (12 completed months equals one year).
BREAK IN SERVICE RULES FOR D.11. Service prior to a Break in Service of one year or more ... [check one]:
ELIGIBILITY AND VESTING:
[PLAN SECS. 2.8, 3.3 AND a. [X] will be taken into account for eligibility and vesting purposes
10.2(m)] immediately upon a subsequent return to employment under all Components
(unless disregarded under D.12.).
b. [ ] will not be taken into account for eligibility or vesting purposes under
the ... [check each that applies]:
1. [ ] Employer Regular Matching Component
2. [ ] Employer Regular Profit Sharing Component
... until the Employee completes one year of Service after the Break in
Service (in which case Service will be retroactively restored to the
Employee). However, such Service will be taken into account immediately
upon a subsequent return to employment under each other Component
(unless otherwise disregarded under D.12). [NOTE: USE OF THIS OPTION b.
MAY REQUIRE THAT RETROACTIVE EMPLOYER REGULAR MATCHING OR REGULAR PROFIT
SHARING CONTRIBUTIONS BE MADE ON BEHALF OF THE PARTICIPANT.]
D.12. In the case of a Participant who had no vested interest in his/her Account
prior to a period of five or more consecutive one-year Breaks in Service (other
than a vested interest in an Employee After-Tax, Deductible, Forfeiture
Restoration or Rollover Contribution Account), Service prior to such period ...
[check one]:
a. [X] will not
b. [ ] will
... be taken into account for eligibility or vesting purposes after a subsequent
return to employment. [NOTE: IN ALL OTHER CASES AND FOR ALL PARTICIPANTS WITH A
VESTED INTEREST IN THEIR ACCOUNTS, SERVICE PRIOR TO A BREAK IN SERVICE WILL BE
COUNTED AFTER A SUBSEQUENT RETURN TO EMPLOYMENT (SUBJECT TO ANY RESTRICTIONS
SPECIFIED IN D.11).]
PREDECESSOR EMPLOYER CREDIT: D.13. Employment with the following Predecessor Employer(s) which did not maintain
[PLAN SECS. 2.59 AND 2.64(c)] the Plan ... [complete as appropriate]: [NOTE: CODE SECTION 414(a) REQUIRES THAT
SERVICE WITH A PREDECESSOR EMPLOYER BE TAKEN INTO ACCOUNT IF A PLAN OF THE
PREDECESSOR EMPLOYER IS MAINTAINED BY A CONTROLLED GROUP MEMBER. THE SERVICE
CREDIT UNDER THIS D.13. IS IN ADDITION TO THAT REQUIRED UNDER CODE SECTION
414(a).] [NOTE: IF THERE IS MORE THAN ONE PREDECESSOR EMPLOYER, ATTACH THE
PREDECESSOR EMPLOYER ADDENDUM.]
Name: Range Energy Ventures Corporation.
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Employer Identification Number: 76-0520793.
... counts as Service for ... [check each that applies]:
1. [X] eligibility purposes, with Service with the Predecessor Employer
calculated based on ... [check one]:
a. [X] Hours of Service from ... [check one]:
1. [X] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]: ____.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]: ____.
2. [X] vesting purposes, with Service with the Predecessor Employer
calculated based on ... [check one]:
a. [X] Hours of Service from ... [check one]:
1. [X] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]: ____.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]: ____.
However, prior service credit for vesting purposes will be limited
to ____ years. [complete if desired.]
3. [X] determining whether the Participant is entitled to share in the
Employer Regular Matching or Regular Profit Sharing Contribution.
For such Participant, the compensation paid by the Predecessor
Employer ... [check one]:
a. [X] is not
b. [ ] is
... counted as Plan Compensation for purposes of determining or
allocating the Employer Regular Matching or Regular Profit Sharing
Contribution for the first year of participation under this Plan.
WAIVER OF ENTRY REQUIREMENTS: D.14. An Employee in Covered Employment ... [check one]:
[PLAN SEC. 3.1(f)]
a. [X] must always satisfy the age and/or service requirements to become an Active
Participant.
b. [ ] will become an Active Participant on the ... [check one]:
1. [ ] Original Effective Date
2. [ ] following date: ____ [month day, year]
... even if he/she has not satisfied the ... [check each that applies]:
3. [ ] age
4. [ ] service
... requirement for participation in the Component.
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This age and/or service waiver applies with respect to ... [check 5., or check
each of 6. through 8. that applies]:
5. [ ] all Components.
6. [ ] the Employee Pre-Tax Component (and those Components with
eligibility and entry tied to such Component).
7. [ ] the Employer Regular Matching Component.
8. [ ] the Employer Regular Profit Sharing Component.
[NOTE: THE WAIVER ALSO APPLIES WITH RESPECT TO THE EMPLOYEE
AFTER-TAX COMPONENT, IF ANY, IF ELIGIBILITY AND ENTRY IS TIED TO
THAT COMPONENT UNDER G.2.]
ELECTION NOT TO PARTICIPATE: D.15. May an Employee elect not to participate in the Plan? [check one]:
[PLAN SEC. 3.5]
a. [X] No. [Skip to Section E.]
b. [ ] Yes ... [check one]: [NOTE: THIS OPTION MAY RESULT IN FAILURE TO SATISFY
THE COVERAGE REQUIREMENTS OF CODE SECTION 410(b) UNLESS IT IS LIMITED TO
HIGHLY COMPENSATED EMPLOYEES.]
1. [ ] if he/she has a religious objection to participation in the
Plan.
2. [ ] for any reason ... [check if applicable]:
a. [ ] but only if he/she is a Highly Compensated Employee.
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E. PLAN COMPENSATION
[NOTE: PLAN COMPENSATION WILL BE USED FOR NONDISCRIMINATION TESTING UNLESS THE
PLAN ADMINISTRATOR EXPRESSLY DIRECTS THAT A DIFFERENT DEFINITION OF COMPENSATION
BE USED FOR SUCH TESTING FOR A PARTICULAR PLAN YEAR. TESTING COMPENSATION MAY BE
USED TO DETERMINE AN EMPLOYER QUALIFIED PROFIT SHARING CONTRIBUTION IF SO
ELECTED IN K.5. NOTWITHSTANDING THE ELECTIONS IN THIS ITEM E.]
PLAN COMPENSATION: E.1. Plan Compensation means ... [check one]:
[PLAN SEC. 2.56]
a. [ ] earnings required to be reported in the Wages, Tips and Other Compensation
box of Form W-2.
b. [X] earnings for purposes of Code Section 415(c)(3).
c. [ ] earnings for purposes of federal income tax withholding.
[NOTE: UNLESS SPECIFICALLY EXCLUDED BELOW, PLAN COMPENSATION INCLUDES EMPLOYEE
PRE-TAX CONTRIBUTIONS, OTHER ELECTIVE DEFERRALS AND AMOUNTS THAT ARE EXCLUDED
FROM INCOME UNDER CODE SECTION 125.]
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E.2. Plan Compensation does not include ... [check each that applies]:
With respect to With respect to
the Employer the Employer
Safe-Harbor, Safe-Harbor,
Regular or Regular or
Qualified Qualified*
Matching Profit Sharing
Component Component
--------- ----------
a. [ ] [ ] Employee Pre-Tax Contributions and other
Elective Deferrals.
b. [ ] [ ] amounts that are excluded from income
under Code Section 125 (cafeteria plan).
c. [ ] [ ] reimbursements or other expense
allowances, fringe benefits (cash and
non-cash), moving expenses, deferred
compensation and welfare benefits.
* EXCEPT AS OTHERWISE ELECTED IN K.5. WITH RESPECT TO THE EMPLOYER QUALIFIED
PROFIT SHARING COMPONENT.
[NOTE: THE FOLLOWING EXCLUSIONS (d. THROUGH k.) DO NOT APPLY FOR PURPOSES OF THE
EMPLOYER SAFE-HARBOR MATCHING OR SAFE-HARBOR PROFIT SHARING COMPONENT.[NOTE:
EXCLUDING ANY OF THE FOLLOWING ITEMS WILL REQUIRE THE DEFINITION OF PLAN
COMPENSATION TO BE TESTED FOR DISCRIMINATION UNDER CODE SECTION 414(s).]
d. [ ] [ ] amounts in excess of $___. [NOTE: THE
AMOUNT THAT MAY BE TAKEN INTO ACCOUNT FOR
A PLAN YEAR IS ALREADY LIMITED UNDER CODE
SECTION 401(a)(17). INCLUDE AN AMOUNT HERE
ONLY IF A LIMIT LESS THAN THE OTHERWISE
APPLICABLE LIMIT IS INTENDED.]
e. [X] [X] severance pay paid at or prior to Termination
of Service. [NOTE: SEVERANCE PAY OR OTHER
AMOUNTS PAID AFTER TERMINATION OF SERVICE ARE
AUTOMATICALLY EXCLUDED.]
f. [X] [X] bonuses.
g. [ ] [ ] commissions.
h. [ ] [ ] overtime. [NOTE: EXCLUDING OVERTIME PAYMENTS
WITH RESPECT TO CERTAIN CONTRIBUTION TYPES MAY
RAISE ISSUES UNDER FEDERAL AND/OR STATE WAGE
AND HOUR LAWS.]
i. [ ] [ ] amounts paid in any form other than cash.
j. [X] [X] amounts contributed under the following
incentive, bonus or equity plan(s)
[specify]: stock bonus; moving allowance,
stock purchase plan, ISO Exercise, Note
Receivable, Deferred Stock Bonus.
[NOTE: AMOUNTS PAID AFTER AN EMPLOYEE CEASES TO BE AN ACTIVE PARTICIPANT IN ANY
COMPONENT ARE AUTOMATICALLY EXCLUDED FROM PLAN COMPENSATION FOR THAT COMPONENT.]
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PLAN COMPENSATION FOR THE PLAN E.3. Plan Compensation for the Plan Year means the Plan Compensation paid within the Plan
YEAR: Year ... [check if applicable]:
[PLAN SEC. 2.57]
a. [ ] except for purposes of the ... [check each that applies]:
[COMPLETE ONLY IF THE 1. [ ] Employer Regular Matching Component,
PLAN INCLUDES AN EMPLOYER 2. [ ] Employer Regular Profit Sharing Component,
REGULAR MATCHING OR
REGULAR PROFIT SHARING
COMPONENT] ... where Plan Compensation for the Plan Year means Plan Compensation paid within
the twelve-consecutive-month period that ends each _______ [month day] within the
Plan Year.
In the case of a Participant hired during such twelve-consecutive-month period, Plan
Compensation for the Plan Year means Plan Compensation paid within ... [check one]:
3. [ ] such twelve-consecutive-month period.
4. [ ] the Plan Year.
E.4. Plan Compensation for the Plan Year does not include amounts paid prior to the Entry
Date ... [check if applicable]:
a. [X] except for purposes of the ... [check one or both of 1. and 2., or check 3.]
1. [ ] Employer Regular Matching Component,
2. [ ] Employer Regular Profit Sharing Component,
3. [X] Employer Contribution Components (Employer Safe-Harbor, Regular and
Qualified Matching Components, and Employer Safe-Harbor, Regular and
Qualified Profit Sharing Components, as applicable)
... where Plan Compensation for the Plan Year includes amounts paid during the
determination period in E.3., but prior to the Entry Date.
IMPUTED EARNINGS WHILE E.5. Plan Compensation ... [check one]:
DISABLED:
[PLAN SEC. 2.56(e)] a. [X] will not
b. [ ] will
... be imputed to a Participant during periods of total disability (as defined in
[COMPLETE ONLY IF THE Code Section 22(e)(3)) for purposes of determining or allocating Employer Regular Profit
PLAN INCLUDES AN EMPLOYER Sharing Contributions.
REGULAR PROFIT SHARING
COMPONENT]
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F. EMPLOYEE PRE-TAX COMPONENT
EMPLOYEE PRE-TAX CONTRIBUTIONS: F.1. Employee Pre-Tax Contributions ... [check one]:
[PLAN SEC. 4.1]
a. [ ] will not [Skip to Section G.]
b. [X] will
... be allowed under the Plan.
AGE AND SERVICE REQUIREMENTS: F.2. For an Employee to participate in the Employee Pre-Tax Component, he/she must have
[PLAN SEC. 3.1(a)] attained age ... [check one]:
a. [X] 18 [21 or less].
b. [ ] N/A - there is no age requirement.
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F.3. For an Employee to participate in the Employee Pre-Tax Component, he/she must have
completed ... [check one]:
a. [ ] one year of Service (determined under D.9.).
b. [ ] ______ [12 or less] months of Service determined using the elapsed time method
(irrespective of the election in D.9.).
c. [X] N/A - there is no service requirement.
ENTRY: F.4. An Employee in Covered Employment will become an Active Participant in the
[PLAN SECS. 2.27 AND 3.1(a)] Employee Pre-Tax Component on the Entry Date that coincides with or next
follows the date he/she satisfies the age and service requirements for such Component.
F.5. The Entry Dates for the Employee Pre-Tax Component are the ... [check one]:
a. [ ] first day of each Plan Year and the first day of the seventh month of each Plan Year.
b. [ ] first day of each quarter of each Plan Year.
c. [ ] first day of each month.
d. [ ] first day of each payroll period.
e. [X] day on which the age and service requirements are satisfied.
f. [ ] first day of each Plan Year. [NOTE: THIS OPTION IS PERMITTED ONLY IF (i) THERE IS NO
AGE REQUIREMENT OR THE AGE REQUIREMENT SPECIFIED IN F.2.a. DOES NOT EXCEED 20 1/2,
AND (ii) THERE IS NO SERVICE REQUIREMENT OR THE SERVICE REQUIREMENT SPECIFIED IN
F.3.b. OR c. DOES NOT EXCEED 6 MONTHS.]
g. [ ] other [specify]: ____. [NOTE: THE ENTRY DATES SPECIFIED MUST BE AT LEAST AS FAVORABLE
AS ONE OF THE CHOICES IN a. - f.]
PAY REDUCTION CONTRIBUTIONS F.6. Employee Pre-Tax Contributions are permitted by means of pay reduction in any whole ...
- MINIMUMS/MAXIMUMS: [check one or both of a. and b., and check c. if it applies]:
[PLAN SEC. 4.1(a)]
a. [X] percentage, subject to the following minimum and maximum per payroll period ...
[check each of 1. and 2. that applies, or check 3.]:
1. [X] Minimum: 1% of Plan Compensation.
2. [X] Maximum [complete]:
a. 50% of Plan Compensation with respect to any Non-Highly
Compensated Employee, and
b. 50% [not to exceed the percentage in a.] of Plan Compensation with
respect to any Highly Compensated Employee.
3. [ ] such minimum and maximum as the Lead Employer may specify in written
action taken prior to the first day of the Plan Year.
b. [ ] dollar amount, subject to the following minimum and maximum per payroll period ...
[check each of 1. and 2. that applies, or check 3.]:
1. [ ] Minimum ... [check one]:
a. [ ] $_____.
b. [ ] ______% of Plan Compensation.
2. [ ] Maximum: $ ______.
3. [ ] such minimum and maximum as the Lead Employer may specify in written
action taken prior to the first day of the Plan Year.
[check c. only if an annual maximum is desired that is less than the limit under
Code Section 402(g)].
c. [ ] provided that the aggregate Employee Pre-Tax Contributions of a Participant for the
Plan Year may not exceed ... [check one]:
1. [ ] $ _______.
2. [ ] _________% of Plan Compensation for the Plan Year.
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3. [ ] the lesser of $_____ or _____% of Plan Compensation for the Plan Year.
4. [ ] such maximum as the Lead Employer may specify in written action taken
prior to the first day of the Plan Year.
[NOTE: EMPLOYEE PRE-TAX CONTRIBUTIONS ARE LIMITED BY CODE SECTION 402(g).]
[NOTE: IF THE PLAN PROVIDES FOR EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS, THE MAXIMUM
UNDER a., b. AND c., ABOVE, FOR A NON-HIGHLY COMPENSATED EMPLOYEE MUST BE AT LEAST
SUFFICIENT TO ALLOW THE PARTICIPANT TO RECEIVE THE MAXIMUM EMPLOYER SAFE-HARBOR MATCHING
CONTRIBUTION.]
Catch-Up Election F.7. If a Participant has contributed less than the maximum amount for prior payroll periods
within the Plan Year, he/she ... [check one]:
a. [X] may not
b. [ ] may ... [check one]:
1. [ ] at any time
2. [ ] at any time during the final month of the Plan Year
3. [ ] at any time during the final quarter of the Plan Year
4. [ ] at any time during the Plan Year in which the Employee Pre-Tax Component
becomes effective (but not later Plan Years)
... increase his/her pay reductions above the maximum in subsequent payroll periods to
account for no prior pay reductions, or pay reductions at less than the maximum. [NOTE:
IN SUCH CASE, THE TOTAL PAY REDUCTIONS FOR THE PLAN YEAR MAY NOT EXCEED THE MAXIMUM(S)
SPECIFIED ABOVE APPLIED BY REFERENCE TO PLAN COMPENSATION FOR THE PLAN YEAR.]
Automatic Enrollment F.8. Upon initial entry into the Employee Pre-Tax Component, a Participant will be deemed to
have elected a pay reduction of ... [check one]: [NOTE: SOME STATE LAWS MAY PROHIBIT OR
LIMIT AUTOMATIC ENROLLMENTS.]
a. [X] N/A - the automatic enrollment provision does not apply.
b. [ ] ____% [5% or less] of Plan Compensation per payroll period unless he/she
affirmatively elects a different percentage or amount or elects not to receive
Employee Pre-Tax Contributions.
Special Effective Date [complete if desired]:
This provision will be effective as of _______ [month day, year] with respect to
individuals who become ... [check one of 1. or 2., and check 3. if it applies]
1. [ ] Employees
2. [ ] Active Participants in the Employee Pre-Tax Component
... on or after that date....
3. [ ] This provision will also apply effective as of that date to each then
current Active Participant in the Employee Pre-Tax Component who ...
[check one]:
a. [ ] does not then have a pay reduction agreement in effect ...
[check if applicable]:
1. [ ] and who has not revoked such an agreement in the
last ______ [specify number] months.
b. [ ] does not then have a pay reduction agreement in effect, or who
has a pay reduction agreement in effect of less than the
automatic enrollment percentage above.
PAY REDUCTION AGREEMENTS: F.9. The initial pay reduction agreement made by a Participant may be effective as soon as
[PLAN SEC. 4.1(a)] administratively practicable after his/her initial Entry Date. Thereafter, if a
Participant does not have a pay reduction agreement in effect (because he/she has not
previously filed one, or because it has been revoked), a pay reduction agreement may be
effective
|
as soon as administratively practicable on or after ... [check one]:
a. [ ] any Entry Date.
b. [ ] the first day of any Plan Year or the first day of the seventh month of any Plan
Year.
c. [ ] the first day of any Plan Year.
d. [ ] the first day of any quarter of any Plan Year.
e. [ ] the first day of any month.
f. [X] the date the election is made.
F.10. A pay reduction agreement may be modified effective as soon as administratively
practicable on or after ... [check one]:
a. [ ] any Entry Date.
b. [ ] the first day of any Plan Year or the first day of the seventh month of any Plan
Year.
c. [ ] the first day of any Plan Year.
d. [ ] the first day of any quarter of any Plan Year.
e. [ ] the first day of any month.
f. [X] the date the election is made.
F.11. A pay reduction agreement may be revoked effective as soon as administratively
practicable on or after ... [check one]:
a. [ ] any Entry Date.
b. [ ] the first day of any Plan Year or the first day of the seventh month of any Plan
Year.
c. [ ] the first day of any Plan Year.
d. [ ] the first day of any quarter of any Plan Year.
e. [ ] the first day of any month.
f. [X] the date the election is made.
CASH OR DEFERRED CONTRIBUTIONS: F.12. A cash or deferred option is available with respect to ... [check one]: [NOTE: IF A CASH
[PLAN SEC. 4.1(c)] OR DEFERRED OPTION IS AVAILABLE WITH RESPECT TO AN ITEM OF COMPENSATION, A GENERAL PAY
REDUCTION AGREEMENT WILL NOT APPLY TO THAT ITEM.]
a. [X] N/A - a cash or deferred option is not available. [Skip to F.15.]
b. [ ] bonuses paid during the Plan Year and designated as eligible for this option by the
Lead Employer.
c. [ ] payments in lieu of a cash distribution of accrued but unused vacation time.
d. [ ] employer credits under a cafeteria plan that are otherwise made available under such
plan as a cash distribution to the Participant.
e. [ ] the following incentive, bonus or equity plan(s) [specify]: _______.
F.13. The contributions made pursuant to this cash or deferred option may not exceed ... [check
one]:
a. [ ] _____% of the designated payments subject to the cash or deferred option.
b. [ ] $_____ per Plan Year.
|
F.14. The contributions made pursuant to this cash or deferred option ... [check one]:
a. [ ] are
b. [ ] are not
... eligible for Employer Regular Matching Contributions. [NOTE: IF THE PLAN PROVIDES FOR
EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS, THE CONTRIBUTIONS MADE PURSUANT TO THIS CASH
OR DEFERRED OPTION ARE ELIGIBLE FOR SUCH EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS.]
IN-SERVICE WITHDRAWALS: F.15. Withdrawals are allowed from Employee Pre-Tax Contribution Accounts ... [check a., or
[PLAN SEC. 11.2] check each of b. and c. that applies]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [X] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2, if later).
2. [X] age 59 1/2.
3. [ ] age _______ [60 or more].
c. [X] at any age on account of Hardship.
|
G. EMPLOYEE AFTER-TAX COMPONENT
EMPLOYEE AFTER-TAX G.1. Employee After-Tax Contributions ... [check one]:
CONTRIBUTIONS:
[PLAN SEC. 4.2] a. [X] will not [Skip to Section H.]
b. [ ] will
... be allowed under the Plan.
AGE AND SERVICE G.2. The eligibility and entry requirements for the Employee After-Tax Component are the same
REQUIREMENTS/ENTRY: as for the ... [check one]:
[PLAN SECS. 2.27 AND 3.1(a)]
a. [ ] Employee Pre-Tax Component.
b. [ ] Employer Regular Matching Component.
c. [ ] Employer Regular Profit Sharing Component.
PAYROLL WITHHOLDING G.3. Employee After-Tax Contributions ... [check one]:
CONTRIBUTIONS:
[PLAN SEC. 4.2(a)] a. [ ] will not be allowed by means of payroll withholding.
b. [ ] will be allowed by means of payroll withholding in any whole ... [check one or both
of 1. and 2., and check 3. if it applies]:
1. [ ] percentage, subject to the following minimum and maximum per payroll
period ... [check each of a. and b. that applies, or check c.]:
a. [ ] Minimum: _______% of Plan Compensation.
b. [ ] Maximum [complete 1., and complete 2. if it applies]:
1. Maximum ... [complete]:
a. _____% of Plan Compensation with respect to any
Non-Highly Compensated Employee, and
b. _____% [not to exceed the percentage in a.] of
Plan Compensation with respect to any Highly
Compensated Employee.
2. Combined Maximum [complete if desired]: The Employee Pre-Tax
and After-Tax Contributions of a Participant in combination
may not exceed ______% of Plan Compensation per payroll
period (other than as a result of a catch-up election under
F.7.).
|
c. [ ] such minimum and maximum as the Lead Employer may specify in
written action taken prior to the first day of the Plan Year.
2. [ ] dollar amount, subject to the following minimum and maximum per payroll
period ... [check each a. and b. that applies, or check c.]:
a. [ ] Minimum ... [check one]:
1. [ ] $______.
2. [ ] _______% of Plan Compensation.
b. [ ] Maximum [complete 1., and complete 2. if it applies]:
1. Maximum: $____.
2. Combined Maximum [complete if desired]: The Employee
Pre-Tax and After-Tax Contributions of a Participant in
combination may not exceed $____ per payroll period
(other than as a result of a catch-up election under
F.7.).
c. [ ] such minimum and maximum as the Lead Employer may specify in
written action taken prior to the first day of the Plan Year.
[check 3. only if an annual maximum is desired]
3. [ ] provided that the aggregate Employee After-Tax Contributions of a
Participant for the Plan Year may not exceed ... [check one]:
a. [ ] $____.
b. [ ] _____% of Plan Compensation for the Plan Year.
c. [ ] the lesser of $____ or ____% of Plan Compensation for the
Plan Year.
d. [ ] such maximum as the Lead Employer may specify in written action
taken prior to the first day of the Plan Year.
DIRECT CONTRIBUTIONS: G.4. Employee After-Tax Contributions ... [check one]:
[PLAN SEC. 4.2(c)]
a. [ ] will not be allowed by means other than payroll withholding.
b. [ ] will be allowed by such means (other than payroll withholding) as may be prescribed
from time to time by the Lead Employer (e.g., personal checks) .... [check if
applicable]:
1. [ ] The maximum amount of the Employee After-Tax Contributions allowed in any
Plan Year (including by payroll withholding, if allowed) is ... [check
one]:
a. [ ] $____.
b. [ ] _____% of Plan Compensation for the Plan Year.
REQUIRED CONTRIBUTIONS - G.5. An Active Participant will be required to make Employee After-Tax Contributions equal
THRIFT PLAN: to ... [check one]:
[PLAN SEC. 4.2(b)]
a. [ ] N/A - such contributions will not be required.
b. [ ] ______% of Plan Compensation per payroll period.
c. [ ] the percentage, not less than ____%, of Plan Compensation per payroll period that
is selected by the Participant upon his/her enrollment in the Employee After-Tax
Component.
IN-SERVICE WITHDRAWALS: G.6. Withdrawals are allowed from Employee After-Tax Contribution Accounts ... [check one]:
[PLAN SEC. 11.2]
|
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason and at any time .... [check if applicable]:
1. [ ] Employee After-Tax Contributions will be suspended for ____ [not more
than 12] months after such a withdrawal.
c. [ ] for any reason after ... [check one]:
1 [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
3. [ ] age ____.
|
H. EMPLOYER SAFE-HARBOR COMPONENT
EMPLOYER SAFE-HARBOR H.1. This Plan ... [check one]:
CONTRIBUTIONS:
[PLAN SECS. 5.1 AND 6.1] a. [X] is not intended to be a Safe-Harbor Plan. [Skip to Section I.]
b. [ ] is intended to be a Safe-Harbor Plan, and safe-harbor contributions will be made
under ... [check one]:
1. [ ] this Plan.
2. [ ] the following defined contribution plan [specify]: . [Skip to Section I.]
[NOTE: THE OTHER PLAN MUST HAVE THE SAME PLAN YEAR AS THIS PLAN.]
[NOTE: EMPLOYEE AFTER-TAX CONTRIBUTIONS (IF ANY) WILL REMAIN SUBJECT TO THE ACTUAL
CONTRIBUTION PERCENTAGE TEST OF CODE SECTION 401(m) REGARDLESS OF WHETHER THIS PLAN
IS A SAFE-HARBOR PLAN. FURTHER, EMPLOYER SAFE-HARBOR AND REGULAR MATCHING
CONTRIBUTIONS WILL REMAIN SUBJECT TO THE ACTUAL CONTRIBUTION PERCENTAGE TEST OF
CODE SECTION 401(m) IF ANY SUCH CONTRIBUTION IS MADE BASED ON EMPLOYEE PRE-TAX
AND/OR AFTER-TAX CONTRIBUTIONS IN EXCESS OF 6% OF PLAN COMPENSATION OR THE PLAN
OTHERWISE FAILS TO SATISFY THE REQUIREMENTS OF CODE SECTION 401(m)(11)(B).]
Special Effective Date [complete if applicable]:
The designation as a Safe-Harbor Plan is effective as of ____[month day, year] [no
earlier than the first day of the first Plan Year beginning on or after January 1,
1999]. [NOTE: A DESIGNATION AS A SAFE-HARBOR PLAN CAN BE EFFECTIVE ONLY AS OF THE
FIRST DAY OF A PLAN YEAR (INCLUDING A SHORT FIRST PLAN YEAR) OR AS OF THE DATE ON
WHICH THE EMPLOYEE PRE-TAX COMPONENT IS FIRST EFFECTIVE UNDER THE PLAN. THE
ADOPTION AGREEMENT ADDING AN EMPLOYER SAFE-HARBOR MATCHING COMPONENT TO THIS PLAN
MUST BE EXECUTED BEFORE THE COMPONENT BECOMES EFFECTIVE. THE ADOPTION AGREEMENT
ADDING AN EMPLOYER SAFE-HARBOR PROFIT SHARING COMPONENT TO THIS PLAN MUST BE
EXECUTED AT LEAST 30 DAYS BEFORE THE END OF THE PLAN YEAR IN WHICH THE COMPONENT
BECOMES EFFECTIVE.]
AGE AND SERVICE REQUIREMENTS: H.2. For an Employee to participate in the Employer Safe-Harbor Matching or Safe-Harbor Profit
[PLAN SEC. 3.1(a)] Sharing Component, he/she must have ... [check one]:
a. [ ] attained age 21 and completed one year of Service (determined under D.9.). [NOTE: IF
THIS OPTION IS ELECTED, THE PORTION OF THE EMPLOYEE PRE-TAX COMPONENT COVERING
PARTICIPANTS WHO HAVE NOT SATISFIED THESE AGE AND SERVICE REQUIREMENTS MUST BE
DISAGGREGATED, AND MUST SEPARATELY SATISFY CODE SECTION 410(b) AND THE AVERAGE
DEFERRAL PERCENTAGE TEST OF CODE SECTION 401(k).] [NOTE: IF THIS OPTION IS ELECTED,
THE ENTRY DATES FOR THE EMPLOYER SAFE-HARBOR MATCHING OR SAFE-HARBOR PROFIT SHARING
COMPONENT ARE THE FIRST DAY OF THE PLAN YEAR AND THE FIRST DAY OF THE SEVENTH MONTH
OF THE PLAN YEAR.]
b. [ ] satisfied the same age and service requirements as for the Employee Pre-Tax
Component.
|
EMPLOYER SAFE-HARBOR H.3. The Employer Safe-Harbor Contribution will be an ... [check one]:
CONTRIBUTIONS:
[PLAN SEC. 5.1] a. [ ] Employer Safe-Harbor Matching Contribution made in accordance with ... [check
1. or 2., and complete 3. and 4.]:
1. [ ] the following schedule ... [complete schedule]:
Basic Matching
Formula
|
THE EMPLOYER OF MATCH
SAFE-HARBOR MATCHING ELIGIBLE
CONTRIBUTION WILL BE: CONTRIBUTIONS*:
--------------------- ---------------
A B
-------------------------------------------------------------------
1 100% of the first: 3%
2 ___% [50% or more, but of the next: 2%
not more than 1A%]
3 ___% [not more than 2A%] of the next: 1%
[NOTE: IF THE FOLLOWING ARE USED, THE PLAN WILL SATISFY
THE 401(k) SAFE-HARBOR BUT NOT THE 401(m) SAFE-HARBOR.]
4 ___% [not more than 3A%] of the next: ___%
5 ___% [not more than 4A%] of the next: ___%
6 ___% [not more than 5A%] of the next: ___%
*OF MATCH ELIGIBLE CONTRIBUTIONS (EXPRESSED AS A
PERCENTAGE OF PLAN COMPENSATION) FOR PAYROLL PERIODS
ENDING WITHIN THE MATCHING CONTRIBUTION PERIOD.
[NOTE: TO SATISFY THE MINIMUM REQUIREMENTS FOR AN
EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTION, 2.A. MUST BE
COMPLETED.]
|
2. [ ] the following schedule ... [complete schedule]:
Enhanced Matching
Formula
|
THE EMPLOYER OF MATCH
SAFE-HARBOR MATCHING ELIGIBLE
CONTRIBUTION WILL BE: CONTRIBUTIONS*:
--------------------- ---------------
A B
------------------------------------------------------------------
1 100% of the first: 4%
2 ___% [not more than 1A%] of the next: 1%
3 ___% [not more than 2A%] of the next: 1%
[NOTE: IF THE FOLLOWING ARE USED, THE PLAN WILL SATISFY
THE 401(k) SAFE-HARBOR BUT NOT THE 401(m) SAFE-HARBOR.]
4 ___% [not more than 3A%] of the next: ___%
5 ___% [not more than 4A%] of the next: ___%
6 ___% [not more than 5A%] of the next: ___%
|
*OF MATCH ELIGIBLE CONTRIBUTIONS (EXPRESSED AS A PERCENTAGE OF PLAN COMPENSATION) FOR PAYROLL PERIODS ENDING WITHIN THE MATCHING CONTRIBUTION PERIOD. [NOTE: TO SATISFY THE MINIMUM REQUIREMENTS FOR AN EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTION, NO ITEMS NEED TO BE COMPLETED.] |
3. The Match Eligible Contributions are the Employee Pre-Tax Contributions ...
[check if applicable]:
a. [ ] and Employee After-Tax Contributions.
4. The Matching Contribution Period is ... [check one]:
a. [ ] each Plan Year.
b. [ ] each payroll period.
c. [ ] each month.
d. [ ] each quarter of each Plan Year.
[NOTE: EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS WILL BE CALCULATED BASED ON
THE MATCH ELIGIBLE CONTRIBUTIONS AND PLAN COMPENSATION FOR EACH MATCHING
CONTRIBUTION PERIOD. HOWEVER, IF H.2.a. IS ELECTED, MATCH ELIGIBLE
CONTRIBUTIONS AND PLAN COMPENSATION PRIOR TO THE ENTRY DATE FOR THE EMPLOYER
SAFE-HARBOR MATCHING COMPONENT WILL BE DISREGARDED IN CALCULATING THE EMPLOYER
SAFE-HARBOR MATCHING CONTRIBUTIONS UNLESS OTHERWISE SPECIFIED IN E.4. WITH
RESPECT TO PLAN COMPENSATION.]
[NOTE: EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR
ALLOCATED UNTIL THE END OF THE MATCHING CONTRIBUTION PERIOD.]
Profit Sharing b. [ ] Employer Safe-Harbor Profit Sharing Contribution in the amount of ____% [3% or more]
Formula of the Participant's Plan Compensation for the Plan Year. [NOTE: IF THE PLAN IS
TOP-HEAVY, THE CONTRIBUTION FORMULA FOR THE EMPLOYER SAFE-HARBOR PROFIT SHARING
CONTRIBUTIONS WILL BE APPLIED WITH THE APPLICABLE MODIFICATIONS DESCRIBED IN PLAN
SEC. 17.1(b) UNLESS AN ADDITIONAL CONTRIBUTION IS ELECTED IN Q.2.]
[NOTE: IF H.2.a. IS ELECTED, PLAN COMPENSATION PRIOR TO THE ENTRY DATE FOR THE
EMPLOYER SAFE-HARBOR PROFIT SHARING COMPONENT WILL BE DISREGARDED IN CALCULATING THE
EMPLOYER SAFE-HARBOR PROFIT SHARING CONTRIBUTIONS UNLESS OTHERWISE SPECIFIED IN E.4.]
IN-SERVICE WITHDRAWALS: H.4. Withdrawals are allowed from Employer Safe-Harbor Matching and/or Safe-Harbor Profit
[PLAN SEC. 11.2] Sharing Contribution Accounts ... [check one]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2 if later).
2. [ ] age 59 1/2.
3. [ ] age ____[60 or more]:
c. [ ] for Hardship after age 59 1/2.
|
I. EMPLOYER REGULAR MATCHING COMPONENT
EMPLOYER REGULAR MATCHING I.1. Employer Regular Matching Contributions ... [check one]:
CONTRIBUTIONS:
[PLAN SEC. 5.2] a. [X] will not [Skip to Section J.]
b. [ ] will
... be made under the Plan.
EXCLUDED EMPLOYMENT CATEGORIES: I.2. Covered Employment with respect to the Employer Regular Matching Component does not
[PLAN SEC. 2.14(a)] include ... [check one]: [NOTE: ANY EXCLUSIONS BELOW ARE IN ADDITION TO ANY EXCLUSIONS IN
D.1.]
a. [ ] N/A - there are no additional exclusions.
b. [ ] employment ... [check each that applies]:
1. [ ] as a Highly Compensated Employee.
2. [ ] as a Key Employee.
3. [ ] on prevailing wage projects covered by J.8.f.
4. [ ] other [specify]: _______ . [NOTE: Specify a group whose exclusion will not
result in discrimination in favor of Highly Compensated Employees.]
AGE AND SERVICE REQUIREMENTS: I.3. For an Employee to participate in the Employer Regular Matching Component, he/she must
[PLAN SEC. 3.1(a)] have attained age ... [check one]:
a. [ ] _____ [21 or less].
b. [ ] N/A - there is no age requirement.
I.4. For an Employee to participate in the Employer Regular Matching Component, he/she must
have completed ... [check one]: [NOTE: IF MORE THAN ONE YEAR OF SERVICE (12 MONTHS OF
ELAPSED TIME SERVICE) IS REQUIRED FOR ELIGIBILITY, THE PLAN MUST PROVIDE FOR FULL AND
IMMEDIATE VESTING OF EMPLOYER REGULAR MATCHING CONTRIBUTION ACCOUNTS.]
a. [ ] one year of Service (determined under D.9.).
b. [ ] two years of Service (determined under D.9.).
c. [ ] _____ [24 or less] months of Service determined using the elapsed time method
(irrespective of the election in D.9.).
d. [ ] N/A - there is no service requirement.
ENTRY: I.5. An Employee in Covered Employment will become an Active Participant in the Employer
[PLAN SECS. 2.27 AND 3.1(a)] Regular Matching Component on the Entry Date that coincides with or next follows the date
he/she satisfies the age and service requirements for such Component.
I.6. The Entry Dates for the Employer Regular Matching Component are the ... [check one]:
a. [ ] first day of each Plan Year and the first day of the seventh month of each Plan Year.
b. [ ] first day of each quarter of each Plan Year.
c. [ ] first day of each month.
d. [ ] first day of each payroll period.
e. [ ] day on which the age and service requirements are satisfied.
f. [ ] first day of each Plan Year. [NOTE: THIS OPTION IS PERMITTED ONLY IF (i) THERE IS NO
AGE REQUIREMENT OR THE AGE REQUIREMENT SPECIFIED IN I.3.A. DOES NOT EXCEED 20 1/2,
AND (II) THERE IS NO SERVICE REQUIREMENT OR THE SERVICE REQUIREMENT SPECIFIED IN
I.4.C. OR D. DOES NOT EXCEED 6 MONTHS, OR 18 MONTHS IF FULL AND IMMEDIATE VESTING.]
g. [ ] other [specify]: _________ . [NOTE: THE ENTRY DATES SPECIFIED MUST BE AT LEAST AS
FAVORABLE AS ONE OF THE CHOICES IN A. - F.]
REQUIREMENTS TO RECEIVE AN I.7. To receive an Employer Regular Matching Contribution for a Plan Year, a Participant must
EMPLOYER REGULAR MATCHING be an Active Participant in the Employer Regular Matching Component at some time during
CONTRIBUTION: the Plan Year ... [check one]: [NOTE: EMPLOYER REGULAR MATCHING
|
[PLAN SEC. 5.2(a) OR (b)] CONTRIBUTIONS SHOULD NOT BE MADE ON BEHALF OF ANY PARTICIPANT UNTIL HE/SHE HAS SATISFIED
THE CONDITIONS IMPOSED ON THE RECEIPT OF SUCH CONTRIBUTIONS.]
a. [ ] but need not be an Employee on the last day of the Plan Year or have completed any
specified number of Hours of Service.
b. [ ] and must either be an Employee on the last day of the Plan Year or must have
completed at least ______ [1,000 or less] Hours of Service during the Plan Year.
However, these requirements do not apply if the Participant's Termination of Service
occurred during the Plan Year because he/she ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]: _______ .
c. [ ] and must both be an Employee on the last day of the Plan Year and must have completed
at least 1000 [1,000 or less] Hours of Service during the Plan Year.
However, ... [check one]:
1. [ ] these requirements do not apply
2. [ ] the last day requirement does not apply
... if the Participant's Termination of Service occurred during the Plan Year because
he/she ... [check each that applies]:
3. [ ] died.
4. [ ] became Disabled.
5. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]: _______ .
d. [ ] and must be an Employee on the last day of the Plan Year. However, this requirement
does not apply if the Participant's Termination of Service occurred during the Plan
Year because he/she ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]: ________ .
e. [ ] and must have completed at least [1,000 or less] Hours of Service during the Plan
Year. However, this requirement does not apply if the Participant's Termination of
Service occurred during the Plan Year because he/she ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]: ________ .
|
MATCHING FORMULA: I.8. Employer Regular Matching Contributions will be ... [check one]:
[PLAN SEC. 5.2(a) OR (b)]
Fixed Contributions a. [ ] determined under the following schedule ... [complete schedule and the items that
- based on follow]:
Percentage of Match
Eligible
Contributions to
Plan Compensation
Optional:
- Profits
Contingency
- Discretionary
Contributions
|
THE EMPLOYER REGULAR OF THE MATCH
MATCHING ELIGIBLE
CONTRIBUTION WILL BE: CONTRIBUTIONS*:
-------------------- ---------------
A B
1 ___% of the first: ___%
2 ___% [less than 1A%] of the next: ___%
3 ___% [less than 2A%] of the next: ___%
4 ___% [less than 3A%] of the next: ___%
5 ___% [less than 4A%] of the next: ___%
*OF MATCH ELIGIBLE CONTRIBUTIONS (EXPRESSED AS A PERCENTAGE OF PLAN
COMPENSATION) FOR PAYROLL PERIODS ENDING WITHIN THE MATCHING CONTRIBUTION
PERIOD.
|
1. The Match Eligible Contributions are the ... [check each that applies]:
a. [ ] Employee Pre-Tax Contributions (except as provided in F.14.).
b. [ ] Employee After-Tax Contributions. ... [check if applicable]:
1. [ ] except that the Employer Regular Matching Contributions
made on Employee After-Tax Contributions will be a
discretionary amount determined by the Lead Employer.
[NOTE: THE LEAD EMPLOYER MAY SPECIFY IN A WRITTEN ACTION
TAKEN PRIOR TO THE FIRST DAY OF THE PLAN YEAR THAT THE
EMPLOYER REGULAR MATCHING CONTRIBUTIONS WILL BE MADE ON
EMPLOYEE AFTER-TAX CONTRIBUTIONS IN ACCORDANCE WITH A
SCHEDULE THAT CONFORMS WITH A SCHEDULE IN A., B. OR C.
OTHERWISE, THE EMPLOYER REGULAR MATCHING CONTRIBUTIONS MADE
FOR A PLAN YEAR ON EMPLOYEE AFTER-TAX CONTRIBUTIONS WILL BE
ALLOCATED IN PROPORTION OF THE EMPLOYEE AFTER-TAX
CONTRIBUTIONS FOR PAYROLL PERIODS ENDING WITHIN THE PLAN
YEAR.]
2. The Matching Contribution Period is ... [check one]:
a. [ ] each Plan Year.
b. [ ] each payroll period.
c. [ ] each month.
d. [ ] each quarter of each Plan Year.
e. [ ] each half of each Plan Year.
f. [ ] other [specify]: ______ . [Note: Specify a period longer than a
Plan Year.]
[NOTE: EMPLOYER REGULAR MATCHING CONTRIBUTIONS WILL BE CALCULATED BASED ON THE
MATCH ELIGIBLE CONTRIBUTIONS AND PLAN COMPENSATION FOR EACH MATCHING
CONTRIBUTION PERIOD -"TRUE-UP" CONTRIBUTIONS MAY BE ELECTED UNDER 3.]
[NOTE: EMPLOYER REGULAR MATCHING CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR
ALLOCATED UNTIL THE END OF THE MATCHING CONTRIBUTION PERIOD.]
|
3. The Employer Regular Matching Contributions will be calculated separately for
each Matching Contribution Period and ... [check one]:
a. [ ] N/A - the Matching Contribution Period is the Plan Year.
b. [ ] "true-up" contributions will not be made.
c. [ ] then will be recalculated based on the Match Eligible
Contributions and Plan Compensation for the Plan Year, and
"true-up" contributions will be made accordingly, with respect to
each eligible Participant described in I.7 ... [check if
applicable]:
1. [ ] who is an Employee on the last day of the Plan Year.
However, this requirement does not apply if the
Participant's Termination of Service occurred during
the Plan Year because he/she ... [check each that
applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]: _______ .
4. The Employer Regular Matching Contribution is ... [check one]: [NOTE: IF
EMPLOYER REGULAR MATCHING CONTRIBUTIONS ARE CONTINGENT ON NET PROFITS, THE
MATCHING CONTRIBUTION PERIOD MUST BE THE PLAN YEAR AND THE CONTRIBUTIONS
SHOULD NOT BE DEPOSITED OR ALLOCATED UNTIL AFTER THE END OF THE PLAN YEAR.]
a. [ ] not contingent on Net Profits.
b. [ ] contingent on ... [check one]:
1. [ ] current (for the fiscal year ending with or within the
Plan Year)
2. [ ] accumulated
... Net Profits of the Participating Employers, determined under ...
[check one]:
3. [ ] GAAP [ ] before [ ] after the payment of discretionary
bonuses.
4. [ ] other [specify]: _______ .
5. The Lead Employer may direct that an additional Employer Regular Matching
Contribution be made for a Plan Year which, if made, will be allocated in
proportion to the ... [check one]:
a. [ ] N/A - such contributions will not be made.
b. [ ] Employer Regular Matching Contributions received under the above
schedule for the Plan Year. The allocation will be made among all
eligible Participants described in I.7 ... [check if applicable]:
1. [ ] who are Non-Highly Compensated Employees.
c. [ ] Match Eligible Contributions of each eligible Participant that do
not exceed _______ % of his/her Plan Compensation for the Plan
Year. The allocation will be made among all eligible Participants
described in I.7 ... [check if applicable]:
1. [ ] who are Non-Highly Compensated Employees.
|
Fixed Contributions b. [ ] determined under the following schedule ... [complete schedule and the items that follow]: - based on Dollar Amount of Match Eligible Contributions Optional: - Profits Contingency - Discretionary Contributions |
THE EMPLOYER REGULAR
MATCHING OF THE MATCH ELIGIBLE
CONTRIBUTION WILL BE: CONTRIBUTIONS*:
-------------------- ---------------------
A B
1 ______% of the first: $ _____.
2 ______% [less than 1A%] of the next: $ _____.
3 ______% [less than 2A%] of the next: $ _____.
4 ______% [less than 3A%] of the next: $ _____.
5 ______% [less than 4A%] of the next: $ _____.
*OF MATCH ELIGIBLE CONTRIBUTIONS (EXPRESSED AS A DOLLAR AMOUNT) FOR PAYROLL
PERIODS ENDING WITHIN THE MATCHING CONTRIBUTION PERIOD.
|
1. The Match Eligible Contributions are the ... [check each that applies]:
a. [ ] Employee Pre-Tax Contributions (except as provided in F.14.).
b. [ ] Employee After-Tax Contributions.... [check if applicable]:
1. [ ] except that the Employer Regular Matching Contributions made on
Employee After-Tax Contributions will be a discretionary amount
determined by the Lead Employer. [NOTE: THE LEAD EMPLOYER MAY HAVE
SPECIFIED IN A WRITTEN ACTION TAKEN PRIOR TO THE FIRST DAY OF THE
PLAN YEAR THAT THE EMPLOYER REGULAR MATCHING CONTRIBUTIONS WILL BE
MADE ON EMPLOYEE AFTER-TAX CONTRIBUTIONS IN ACCORDANCE WITH A
SCHEDULE THAT CONFORMS WITH A SCHEDULE IN a., b. OR c. OTHERWISE,
THE EMPLOYER REGULAR MATCHING CONTRIBUTIONS MADE FOR A PLAN YEAR ON
EMPLOYEE AFTER-TAX CONTRIBUTIONS WILL BE ALLOCATED IN PROPORTION OF
THE EMPLOYEE AFTER-TAX CONTRIBUTIONS FOR PAYROLL PERIODS ENDING
WITHIN THE PLAN YEAR.]
2. The Matching Contribution Period is ... [check one]:
a. [ ] each Plan Year.
b. [ ] each payroll period.
c. [ ] each month.
d. [ ] each quarter of each Plan Year.
e. [ ] each half of each Plan Year.
f. [ ] other [specify]: ______. [Note: Specify a period longer than a Plan Year.]
[NOTE: EMPLOYER REGULAR MATCHING CONTRIBUTIONS WILL BE CALCULATED BASED ON THE MATCHING
ELIGIBLE CONTRIBUTIONS AND PLAN COMPENSATION FOR EACH MATCHING CONTRIBUTION PERIOD
-"TRUE-UP" CONTRIBUTIONS MAY BE ELECTED UNDER 3.]
[NOTE: EMPLOYER REGULAR MATCHING CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR ALLOCATED UNTIL
THE END OF THE MATCHING CONTRIBUTION PERIOD.]
3. The Employer Regular Matching Contribution will be calculated separately for each
Matching Contribution Period and ... [check one]:
|
a. [ ] N/A - the Matching Contribution Period is the Plan Year.
b. [ ] "true-up" contributions will not be made.
c. [ ] then will be recalculated based on the Match Eligible Contributions and
Plan Compensation for the Plan Year, and "true-up" contributions will be
made accordingly, with respect to each eligible Participant described in
I.7. ... [check if applicable]:
1. [ ] who is an Employee on the last day of the Plan Year. However, this
requirement does not apply if the Participant's Termination of
Service occurred during the Plan Year because he/she ... [check
each that applies]:
1 [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]:____.
4. The Employer Regular Matching Contribution is ... [check one]: [NOTE: IF EMPLOYER REGULAR
MATCHING CONTRIBUTIONS ARE CONTINGENT ON NET PROFITS, THE MATCHING CONTRIBUTION PERIOD
MUST BE THE PLAN YEAR AND THE CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR ALLOCATED
UNTIL AFTER THE END OF THE PLAN YEAR.]
a. [ ] not contingent on Net Profits.
b. [ ] contingent on ... [check one]:
1. [ ] current (for the fiscal year ending with or within the Plan
Year)
2. [ ] accumulated
... Net Profits of the Participating Employers, determined under ...
[check one]:
3. [ ] GAAP [ ] before [ ] after the payment of discretionary
bonuses.
4. [ ] other [specify]: ______.
5. The Lead Employer may direct that an additional Employer Regular Matching Contribution be
made for a Plan Year which, if made, will be allocated in proportion to the ...
[check one]:
a. [ ] N/A - such contributions will not be made.
b. [ ] Employer Regular Matching Contributions received under the above schedule for
the Plan Year. The allocation will be made among all eligible Participants
described in I.7 ... [check if applicable]:
1. [ ] who are Non-Highly Compensated Employees.
c. [ ] Match Eligible Contributions of each eligible Participant that do not exceed
$____ for the Plan Year. The allocation will be made among all eligible
Participants described in I.7 ... [check if applicable]:
1. [ ] who are Non-Highly Compensated Employees.
Fixed Contributions c. [ ] determined under the following schedule ... [complete schedule and the items that follow]:
- based on Years of [NOTE: USE OF THIS OPTION WILL REQUIRE BENEFITS, RIGHTS AND FEATURES TESTING UNDER
Credited Service: CODE SECTION 401(a)(4).] [NOTE: IF THIS OPTION IS ELECTED, THE MATCHING CONTRIBUTION PERIOD
IS THE PLAN YEAR AND CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR ALLOCATED UNTIL AFTER THE END
OF THE PLAN YEAR.]
|
Optional: - Profits Contingency - Discretionary Contributions |
OF MATCH ELIGIBLE CONTRIBUTIONS
THE EMPLOYER REGULAR FOR PARTICIPANTS WITH AT LEAST THE
MATCHING FOLLOWING NUMBER OF
CONTRIBUTION WILL BE: YEARS OF CREDITED SERVICE:
--------------------- ----------------------------------
A B
1 ______% 1 yr. [NOTE: IF MORE THAN ONE YEAR OF SERVICE IS REQUIRED
TO PARTICIPATE IN THE EMPLOYER REGULAR MATCHING COMPONENT,
THAT SERVICE REQUIREMENT MUST BE SATISFIED TO RECEIVE A
CONTRIBUTION.]
2 ______% [more than 1A%] ______yrs. [more than 1B]
3 ______% [more than 2A%] ______yrs. [more than 2B]
4 ______% [more than 3A%] ______yrs. [more than 3B]
5 ______% [more than 4A%] ______yrs. [more than 4B]
|
1. The Match Eligible Contributions are the ... [check each that applies]:
a. [ ] Employee Pre-Tax Contributions (except as provided in F.14.).
b. [ ] Employee After-Tax Contributions .... [check if applicable]:
1. [ ] except that the Employer Regular Matching Contributions made on
Employee After-Tax Contributions will be a discretionary amount
determined by the Lead Employer. [NOTE: THE LEAD EMPLOYER MAY
SPECIFY IN A WRITTEN ACTION TAKEN PRIOR TO THE FIRST DAY OF THE PLAN
YEAR THAT THE EMPLOYER REGULAR MATCHING CONTRIBUTIONS WILL BE MADE
ON EMPLOYEE AFTER-TAX CONTRIBUTIONS IN ACCORDANCE WITH A SCHEDULE
THAT CONFORMS WITH A SCHEDULE IN a., b. OR c. OTHERWISE, THE
EMPLOYER REGULAR MATCHING CONTRIBUTIONS MADE FOR A PLAN YEAR ON
EMPLOYEE AFTER-TAX CONTRIBUTIONS WILL BE ALLOCATED IN PROPORTION OF
THE EMPLOYEE AFTER-TAX CONTRIBUTIONS FOR PAYROLL PERIODS ENDING
WITHIN THE PLAN YEAR.]
2. The Participant's years of credited service for this purpose means ... [check one]:
a. [ ] the number of Plan Years in which the Participant had ___ [1,000 or less] or
more Hours of Service.
b. [ ] the number of years of elapsed time Service of the Participant as of the
last day of the Plan Year.
3. The Employer Regular Matching Contribution is ... [check one]:
a. [ ] not contingent on Net Profits.
b. [ ] contingent on ... [check one]:
1. [ ] current (for the fiscal year ending with or within the Plan Year)
2. [ ] accumulated
... Net Profits of the Participating Employers, determined under ...
[check one]:
3. [ ] GAAP [ ] before [ ] after the payment of discretionary bonuses.
4. [ ] other [specify]: ______.
|
4. The Lead Employer may direct that an additional Employer Regular Matching Contribution be
made for a Plan Year which, if made, will be allocated in proportion to the ...
[check one]:
a. [ ] N/A - such contributions will not be made.
b. [ ] Employer Regular Matching Contributions received under the above schedule for
the Plan Year. The allocation will be made among all eligible Participants
described in I.7 ... [check if applicable]:
1. [ ] who are Non-Highly Compensated Employees.
c. [ ] Match Eligible Contributions of each eligible Participant that do not exceed
____% of his/her Plan Compensation for the Plan Year. The allocation will be
made among all eligible Participants described in I.7 ... [check if
applicable]:
1. [ ] who are Non-Highly Compensated Employees.
Discretionary d. [ ] a discretionary amount determined by the Lead Employer.
Contributions
The Lead Employer may specify in a written action taken prior to the first day of the Plan Year
that Employer Regular Matching Contributions will be made for such Plan Year in accordance with
a schedule that conforms with a schedule specified in a., b. or c., above. A separate schedule
may apply to Employee Pre-Tax Contributions and Employee After-Tax Contributions.
If such written action is not taken prior to the first day of the Plan Year, then any Employer
Regular Matching Contribution made for the Plan Year on Employee Pre-Tax Contributions will be
allocated ... [check one]:
1. [ ] in proportion to Employee Pre-Tax Contributions (except as provided in F.14.) for
payroll periods ending within the Plan Year that do not exceed ... [check one]:
a. [ ] N/A - no limit.
b. [ ] $___.
c. [ ] ____% of Plan Compensation for the Plan Year.
d. [ ] the lesser of $_____ or _____% of Plan Compensation for the Plan Year.
2. [ ] under the following schedule ... [complete]:
|
WILL BE ALLOCATED IN
PROPORTION TO EMPLOYEE
PRE-TAX CONTRIBUTIONS
THE FOLLOWING (EXCEPT AS PROVIDED IN
PERCENT OF THE EMPLOYER F.14.) THAT DO NOT EXCEED
REGULAR MATCHING THE FOLLOWING PERCENT OF
CONTRIBUTION FOR PLAN COMPENSATION FOR
THE PLAN YEAR: THE PLAN YEAR:
----------------------- ------------------------
A B
1 ______% ______%
2 ______% ______% [less than 1B%]
3 ______% ______% [less than 2B%]
Total = 100%
[NOTE: THE STEPS IN THE ALLOCATION FORMULA PROVIDE CUMULATIVE
CONTRIBUTIONS AT LOWER DEFERRAL LEVELS.]
|
3. [ ] under the following schedule ... [complete]: |
WILL BE ALLOCATED IN
PROPORTION TO EMPLOYEE
PRE-TAX CONTRIBUTIONS
THE FOLLOWING DOLLAR (EXCEPT AS PROVIDED IN
AMOUNT OF THE EMPLOYER F.14.) THAT DO NOT EXCEED
REGULAR MATCHING THE FOLLOWING PERCENT OF
CONTRIBUTION FOR PLAN COMPENSATION FOR
THE PLAN YEAR: THE PLAN YEAR:
---------------------- -------------------------
A B
1 The first: $_____. ______%
2 The next: $_____. ______% [less than 1B%]
3 The remainder: ______% [less than 2B%]
[NOTE: THE STEPS IN THE ALLOCATION FORMULA PROVIDE
CUMULATIVE CONTRIBUTIONS AT LOWER DEFERRAL LEVELS.]
|
Any Employer Regular Matching Contribution made for the Plan Year on Employee After-Tax
Contributions will be allocated in proportion of Employee After-Tax Contributions for payroll
periods ending within the Plan Year.
[NOTE: IF THE PLAN PROVIDES FOR DISCRETIONARY EMPLOYER SAFE-HARBOR MATCHING CONTRIBUTIONS, EMPLOYER
SAFE-HARBOR MATCHING AND REGULAR MATCHING CONTRIBUTIONS WILL REMAIN SUBJECT TO THE ACTUAL
CONTRIBUTION PERCENTAGE TEST OF CODE SECTION 401(m) IF DISCRETIONARY CONTRIBUTIONS MADE ON BEHALF
OF ANY PARTICIPANT EXCEED 4% OF HIS/HER PLAN COMPENSATION FOR THE PLAN YEAR.]
MINIMUMS AND MAXIMUMS: I.9. The minimum Employer Regular Matching Contribution that any Participant who has Match Eligible
[PLAN SEC. 5.2(d)] Contributions can receive for any Plan Year is ... [check one]:
a. [ ] N/A - no minimum (except as results from the matching schedule).
b. [ ] $____.
c. [ ] %____ of Plan Compensation for the Plan Year.
I.10. The maximum Employer Regular Matching Contribution that any Participant can receive for any Plan
Year is ... [check one]: [NOTE: A SEPARATE MAXIMUM NEEDS TO BE SPECIFIED ONLY IF THE MATCH IS
DISCRETIONARY AND A MAXIMUM IS DESIRED, OR IF A MATCHING SCHEDULE APPLIES AND A MAXIMUM IS DESIRED
THAT IS LESS THAN THE MAXIMUM OTHERWISE RESULTING FROM THE MATCHING SCHEDULE.]
a. [ ] N/A - no maximum (except as results from the matching schedule).
b. [ ] $_____.
c. [ ] _____% of Plan Compensation for the Plan Year.
d. [ ] the lesser of $____ or _____% of Plan Compensation for the Plan Year.
VESTING SCHEDULE FOR I.11. A Participant's vested percentage in his/her Employer Regular Matching Contribution Account
EMPLOYER REGULAR will be ... [check one]:
MATCHING COMPONENT:
[PLAN SEC. 10.2(e)] a. [ ] 100% at all times.
b. [ ] determined under the following schedule ... [complete as desired]:
|
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 40%
2 80%
3 100% [20% or more]
4 100% [40% or more]
5 100% [60% or more]
6 100% [80% or more]
7 or more 100%
|
c. [ ] determined under the following schedule ... [complete as desired]: |
YEARS OF VESTED
SERVICE PERCENTAGE
--------- ----------
0 0%
1 ______%
2 ______%
3 ______%
4 ______%
5 or more 100%
|
[NOTE: IF THE PLAN IS TOP-HEAVY, AND IF THE VESTING SCHEDULE SPECIFIED ABOVE DOES NOT
SATISFY THE VESTING REQUIREMENTS APPROPRIATE FOR A TOP-HEAVY PLAN UNDER PLAN SEC. 17.2,
THE VESTED PERCENTAGE OF THE PARTICIPANT WILL BE THE GREATER OF THE VESTED PERCENTAGE
DETERMINED UNDER THE VESTING SCHEDULE SPECIFIED ABOVE OR THE APPLICABLE VESTING SCHEDULE
SPECIFIED IN PLAN SEC. 17.2. IF THE PLAN WAS, BUT HAS CEASED TO BE TOP-HEAVY, THE
APPROPRIATE VESTING SCHEDULE WILL BE DETERMINED UNDER Q.3.]
I.12. The vesting schedule specified above applies to the Employer Regular Matching
Contribution Accounts ... [check one]: [NOTE: IF THE VESTING SCHEDULE IS AMENDED,
SPECIAL RULES (INCLUDING A PARTICIPANT ELECTION) MAY APPLY UNDER PLAN SEC. 10.2(k).]
a. [ ] of all Participants.
b. [ ] of Participants who become ... [check one]:
1. [ ] Employees
2. [ ] Active Participants in the Employer Regular Matching Component
... on or after [month day, year] (and the vesting schedule in effect
prior to such date will apply to all other Participants).
c. [ ] reflecting Employer Regular Matching Contributions made for periods on or after
__ [month day, year] (and the vesting schedule in effect prior to such date will apply
to all Employer Regular Matching Contributions made for periods prior to such date).
TREATMENT OF I.13. A Pending Allocation Account that reflects Forfeitures from Employer Regular
FORFEITURES: Matching Contribution Accounts ... [check one]:
[PLAN SEC. 5.2(g)]
[COMPLETE ONLY IF A a. [ ] can
VESTING SCHEDULE b. [ ] cannot
APPLIES WITH RESPECT
TO ANY PART OR ALL ... be applied to pay administrative expenses of the Plan if so directed by the Plan
OF THE EMPLOYER Administrator.
REGULAR MATCHING
CONTRIBUTION ACCOUNT]
|
I.14. A Pending Allocation Account that reflects Forfeitures from Employer Regular Matching
Contribution Accounts (to the extent not applied to pay administrative expenses if
permitted in I.13.) will be ... [check one]:
a. [ ] applied as a credit against ... [check each that applies]:
1. [ ] Employer Safe-Harbor and/or Regular Matching Contributions
2. [ ] Employer Safe-Harbor and/or Regular Profit Sharing Contributions
... that are made under the Plan, as and when directed by the Lead Employer.
b. [ ] allocated as of the last day of the Plan Year as an additional ... [check one]:
1. [ ] Employer Regular Matching Contribution.
2. [ ] Employer Regular Profit Sharing Contribution. [NOTE: IF THE PLAN PROVIDES FOR A
FIXED CONTRIBUTION DETERMINED UNDER AN INTEGRATED FORMULA, THE ALLOCATION WILL
BE MADE IN PROPORTION TO PLAN COMPENSATION FOR THE PLAN YEAR.]
The allocation will be made in the same manner as (and as part of) any variable
contribution, or in proportion to any fixed contribution, under the Plan. [NOTE: IF THE
PLAN PROVIDES FOR A VARIABLE CONTRIBUTION (e.g., A DISCRETIONARY CONTRIBUTION), AND A
CONTRIBUTION IS NOT MADE FOR A PLAN YEAR, THE ALLOCATION WILL BE MADE IN THE SAME MANNER
AS THE VARIABLE CONTRIBUTION WOULD HAVE BEEN ALLOCATED.]
c. [ ] allocated as of the last day of the Plan Year in proportion to Plan Compensation for
the Plan Year. The allocation will be among all eligible Participants described in
I.7.
IN-SERVICE WITHDRAWALS: I.15. Withdrawals are allowed from Employer Regular Matching Contribution Accounts...[check a.,
[PLAN SEC. 11.2] or check each of b. through d. that applies]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after...[check one]:
1. [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
3. [ ] age____[check each that applies]:
a. [ ] and completion of _____ years of ... [check one]:
1. [ ] vesting Service.
2. [ ] participation in the Plan. [NOTE: PARTICIPATION IS
MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY DATE.]
b. [ ] but only if at the time of the withdrawal the Participant is ...
[check one]:
1. [ ] fully vested
2. [ ] at least ______% vested
... in his/her Employer Regular Matching Contribution Account.
4. [ ] completion of _____ years of ... [check one]:
a. [ ] vesting Service.
b. [ ] participation in the Plan. [NOTE: PARTICIPATION IS MEASURED ON AN
ELAPSED TIME BASIS FROM THE ENTRY DATE.]
c. [ ] at any age on account of Hardship ... [check if applicable]:
1. [ ] but only if at the time of the withdrawal the Participant is ... [check
|
one]:
a. [ ] fully vested
b. [ ] at least______% vested
... in his/her Employer Regular Matching Contribution Account.
d. [ ] for any reason, but only if at the time of the withdrawal the Participant is fully vested in
his/her Employer Regular Matching Contribution Account, and provided the withdrawal may not
include amounts allocated to the Contribution Account within two years prior to the withdrawal
... [check if applicable]: [NOTE: THE CALCULATION OF THE MAXIMUM AMOUNT AVAILABLE FOR WITHDRAWAL
IS SET FORTH IN PLAN SEC. 11.2(a).]
1. [ ] unless the Participant has completed five years of participation in the Plan.
[NOTE: PARTICIPATION IS MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY DATE.]
J. EMPLOYER REGULAR PROFIT SHARING COMPONENT
PROFIT SHARING J.1. Employer Regular Profit Sharing Contributions ... [check one]:
CONTRIBUTIONS:
[PLAN SEC. 6.2]
a. [X] will
b. [ ] will not [Skip to Section K.]
... be made under the Plan.
EXCLUDED EMPLOYMENT J.2. Covered Employment with respect to the Employer Regular Profit Sharing Component does not include
CATEGORIES: ... [check one]: [NOTE: ANY EXCLUSIONS BELOW ARE IN ADDITION TO ANY EXCLUSIONS IN D.1.]
[PLAN SEC. 2.14(a)]
a. [X] N/A - there are no additional exclusions.
b. [ ] employment ... [check each that applies]:
1. [ ] as a Highly Compensated Employee.
2. [ ] as a Key Employee.
3. [ ] other [specify]:_______. [Note: Specify a group whose exclusion will not result in
discrimination in favor of Highly Compensated Employees.]
AGE AND SERVICE J.3. For an Employee to participate in the Employer Regular Profit Sharing Component, he/she must have
REQUIREMENTS: attained age ... [check one]:
[PLAN SEC. 3.1(a)]
a. [X] 18 [21 or less].
b. [ ] N/A - there is no age requirement.
J.4. For an Employee to participate in the Employer Regular Profit Sharing Component, he/she must have
completed ... [check one]: [NOTE: IF MORE THAN ONE YEAR OF SERVICE (12 MONTHS OF ELAPSED TIME
SERVICE) IS REQUIRED FOR ELIGIBILITY, THE PLAN MUST PROVIDE FOR FULL AND IMMEDIATE VESTING OF
EMPLOYER REGULAR PROFIT SHARING CONTRIBUTION ACCOUNTS.]
a. [ ] one year of Service (determined under D.9.).
b. [ ] two years of Service (determined under D.9.).
c. [ ] _____[24 or less] months of Service determined using the elapsed time method (irrespective of the
election in D.9.).
d. [X] N/A - there is no service requirement.
ENTRY: J.5. An Employee in Covered Employment will become an Active Participant in the Employer Regular Profit
[PLAN SECS. 2.27 Sharing Component on the Entry Date that ... [check one]:
AND 3.1(a)]
a. [X] coincides with or next follows
b. [ ] coincides with or next precedes
c. [ ] is nearest to
|
... the date he/she satisfies the age and service requirements for such Component.
J.6. The Entry Dates for the Employer Regular Profit Sharing Component are the ... [check one]:
a. [ ] first day of each Plan Year and the first day of the seventh month of each Plan Year.
b. [ ] first day of each quarter of each Plan Year.
c. [ ] first day of each month.
d. [ ] first day of each payroll period.
e. [X] day on which the age and service requirements are satisfied.
f. [ ] first day of each Plan Year. [NOTE: THIS OPTION IS PERMITTED ONLY IF (i) THERE IS NO AGE
REQUIREMENT OR THE AGE REQUIREMENT SPECIFIED IN J.3.a. DOES NOT EXCEED 20 1/2, AND (ii) THERE IS
NO SERVICE REQUIREMENT OR THE SERVICE REQUIREMENT SPECIFIED IN J.4.c. OR d. DOES NOT EXCEED 6
MONTHS, OR 18 MONTHS IF FULL AND IMMEDIATE VESTING.]
g. [ ] other [specify]:_____. [NOTE: THE ENTRY DATES SPECIFIED MUST BE AT LEAST AS FAVORABLE AS ONE OF
THE CHOICES IN a. - f.]
REQUIREMENTS TO SHARE J.7. To share in the Employer Regular Profit Sharing Contribution for a Plan Year, a Participant must be
IN THE EMPLOYER an Active Participant in the Employer Regular Profit Sharing Component at some time during the Plan
REGULAR PROFIT SHARING Year ... [check one]:
CONTRIBUTION:
[PLAN SEC. 6.2(a)
OR (b)]
a. [ ] but need not be an Employee on the last day of the Plan Year or have completed any specified
number of Hours of Service.
b. [ ] and must either be an Employee on the last day of the Plan Year or must have completed at least
______[1,000 or less] Hours of Service during the Plan Year. However, these requirements do not
apply if the Participant's Termination of Service occurred during the Plan Year because he/she
... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]:_______.
c. [X] and must both be an Employee on the last day of the Plan Year and must have completed at least
1000 [1,000 or less] Hours of Service during the Plan Year. However, ... [check one]:
1. [X] these requirements do not apply
2. [ ] the last day requirement does not apply
... if the Participant's Termination of Service occurred during the Plan Year because he/she ...
[check each that applies]:
3. [X] died.
4. [X] became Disabled.
5. [X] retired after ... [check each that applies]:
a. [X] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]:______.
d. [ ] and must be an Employee on the last day of the Plan Year. However, this requirement does not
apply if the Participant's Termination of Service occurred during the Plan Year because
he/she ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
|
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]:______.
e. [ ] and must have completed at least _____[1,000 or less] Hours of Service during the Plan Year.
However, this requirement does not apply if the Participant's Termination of Service occurred
during the Plan Year because he/she ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check each that applies]:
a. [ ] Normal Retirement Age.
b. [ ] Early Retirement Age.
c. [ ] age [specify]:______.
CONTRIBUTION/ALLOCATION J.8. The Employer Regular Profit Sharing Contribution for each Plan Year will ... [check one of a.
FORMULA: through e., and check f. if it applies. Do not check b. or d. if any Controlled Group Member
[PLAN SEC. 6.2(a) maintains any other plan that is integrated and that covers any of the same Participants]: [NOTE:
OR (b)] IF THE PLAN IS TOP-HEAVY, THE CONTRIBUTION FORMULA OR ALLOCATION METHOD FOR THE EMPLOYER REGULAR
PROFIT SHARING CONTRIBUTIONS WILL BE APPLIED WITH THE APPLICABLE MODIFICATIONS DESCRIBED IN PLAN
SEC. 17.1(b) UNLESS AN ADDITIONAL CONTRIBUTION IS ELECTED IN Q.2.]
|
Non-Integrated a. [ ] be allocated among the eligible Participants ... [check one]:
Variable Formula -
Discretionary or 1. [ ] in proportion to Plan Compensation for the Plan Year
Non-Discretionary 2. [ ] as an equal dollar amount (subject to the limits of Code Section 415)
with Profits
Contingency ... using the nonintegrated allocation formula in Plan Sec. 6.2(a)(1). The amount of the
contribution will be ... [check one]:
3. [ ] a discretionary amount determined by the Lead Employer (not contingent on Net
Profits).
4. [ ] ______% of ... [check one]:
a. [ ] current (for the fiscal year ending with or within the Plan Year)
b. [ ] accumulated
... Net Profits of the Participating Employers, determined under ... [check one]:
c. [ ] GAAP [ ] before [ ] after the payment of discretionary bonuses,
d. [ ] other [specify]:______.
Integrated b. [X] be allocated among the eligible Participants using an integrated allocation formula in Plan Sec.
Variable Formula - 6.2(a)(2). The amount of the contribution will be ... [check 1., 2. or 3., and complete 4. and 5.
Discretionary or below]:
Non-Discretionary
with Profits 1. [X] a discretionary amount determined by the Lead Employer (not contingent on Net
Contingency Profits).
2. [ ] ____% of ... [check one]:
a. [ ] current (for the fiscal year ending with or within the Plan Year)
b. [ ] accumulated
... Net Profits of the Participating Employers, determined under ... [check one]:
c. [ ] GAAP [ ] before [ ] after the payment of discretionary bonuses,
d. [ ] other [specify]:______
... but not to exceed the maximum amount deductible under the Code (or such other limits
as may be imposed under the Plan).
3. [ ] _____% [15% or less] of the aggregate Plan Compensation for the Plan Year of all
eligible Participants.
________________________________________________________________________________________________
4. The Integration Level is ... [check one]:
a. [X] the Taxable Wage Base in effect at the beginning of the Plan Year.
b. [ ] $____[not more than the Taxable Wage Base in effect at the beginning of the
Plan Year in which this dollar amount is first effective].
c. [ ] ____% [less than 100%] of the Taxable Wage Base in effect at the beginning of
the Plan Year ... [check if desired]:
1. [ ] increased to the next highest whole dollar.
5. The integrated allocation formula used is the ... [check one]:
a. [ ] Two-step formula.
b. [ ] Three-step formula.
c. [X] Four-step formula.
|
Non-Integrated c. [ ] equal a fixed amount for each eligible Participant. The amount of the contribution will
Fixed Formula - be ... [check one of 1., 2. or 3., and complete 4. and 5. below]:
Non-Discretionary
with Optional
Profits Contingency 1. [ ] $______ for the Plan Year.
2. [ ] $______ for each ... [check one]:
a. [ ] Hour of Service
b. [ ] day
c. [ ] week
... as an Active Participant in the Employer Profit Sharing Component during the Plan
Year.
3. [ ] ______% [not to exceed 15%] of Plan Compensation for the Plan Year.
_________________________________________________________________________________________________
4. The Employer Regular Profit Sharing Contribution is ... [check one]:
a. [ ] not contingent on Net Profits.
b. [ ] contingent on ... [check one]:
1. [ ] current (for the fiscal year ending with or within the Plan Year)
2. [ ] accumulated
... Net Profits of the Participating Employers, determined under ...
[check one]:
3. [ ] GAAP [ ] before [ ] after the payment of discretionary bonuses.
4. [ ] other [specify]: ______.
5. The Lead Employer ... [check one]:
a. [ ] does not
b. [ ] does
... have the discretion to direct that an additional Employer Regular Profit Sharing
Contribution be made for a Plan Year which, if made, will be allocated among the eligible
Participants described in J.7. ... [check if applicable]:
c. [ ] who are Non-Highly Compensated Employees
... in proportion to the Plan Compensation for the Plan Year of each eligible
Participant.
Integrated d. [ ] equal a fixed amount for each eligible Participant. The amount of the contribution will
Fixed Formula - be ... [complete 1. through 5. below]:
Non-Discretionary
with Optional 1. ________ % of Plan Compensation for the Plan Year, plus
Profits Contingency 2. ________ % of Plan Compensation for the Plan Year in excess of the Integration Level
[the percentage in 2. may not exceed the lesser of the percentage in 1. or the percentage
in the table below]:
|
TABLE
IF THE INTEGRATION LEVEL IS: THE MAXIMUM PERCENTAGE IS:
The Taxable Wage Base for the current 5.7%
year ("TWB")
More than 80% of the TWB but less than 5.4%
100% of the TWB
More than the greater of 20% of the 4.3%
TWB or $10,000 but not more than
80% of the TWB
Less than or equal to the greater of 5.7%
$10,000 or 20% of the TWB
3. The Integration Level is ... [check one]:
a. [ ] the Taxable Wage Base in effect at the beginning of the Plan Year.
b. [ ] ________% [less than 100%] of the Taxable Wage Base in effect at the beginning
of the Plan Year ... [check if desired]:
1. [ ] increased to the next highest whole dollar.
4. The Employer Regular Profit Sharing Contribution is ... [check one]:
a. [ ] not contingent on Net Profits.
b. [ ] contingent on ... [check one]:
1. [ ] current (for the fiscal year ending with or within the Plan Year)
2. [ ] accumulated
... Net Profits of the Participating Employers, determined under ...
[check one]:
3. [ ] GAAP [ ] before [ ] after the payment of discretionary bonuses.
4. [ ] other [specify]: ______.
5. The Lead Employer ... [check one]:
a. [ ] does not
b. [ ] does
... have the discretion to direct that an additional Employer Regular Profit
Sharing Contribution be made for a Plan Year which, if made, will be allocated
among the eligible Participants described in J.7. ... [check if applicable]:
c. [ ] who are Non-Highly Compensated Employees
... in proportion to the Plan Compensation for the Plan Year of each eligible Participant.
Uniform Point e. [ ] be allocated among the eligible Participants in proportion to the "points" of each eligible
Formula Participant. An eligible Participant will be awarded ... [check one or both of 1. and 2., and
check 3. if it applies]
1. [ ] _______[specify a whole number] points for each year of age he/she has attained by
the last day of the Plan Year.
2. [ ] _______ [specify a whole number] points for each year of credited service he/she
has completed by the last day of the Plan Year. ... [complete]
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a. The Participant's years of credited service for this purpose means ...
[check one]:
1. [ ] the number of Plan Years in which the Participant had ______
[1,000 or less] or more Hours of Service.
2. [ ] the number of years of elapsed time Service of the Participant
as of the last day of the Plan Year.
b. The Participant's years of credited service taken into account will not
exceed ... [check one]:
1. [ ] N/A - there is no limit.
2. [ ] ________years.
[check 3. if points are awarded based on compensation]
3. [ ] _______[specify a whole number] points for each $_________ [not more than $200] of
Plan Compensation for the Plan Year.
Prevailing Wage f. [ ] equal a fixed amount for each hour working on a project and in a job category covered by the
Formula Prevailing Wage Laws. The amount of the contribution will be determined ... [check one of 1. or
2., and complete 3. and 4.]:
1. [ ] as specified on the Prevailing Wage Addendum. [NOTE: A CONTRIBUTION WILL BE MADE ONLY
WITH RESPECT TO PROJECTS AND JOB CATEGORIES LISTED ON THE PREVAILING WAGE ADDENDUM.]
2. [ ] as follows ... [complete]:
For contracts classified as ... The contribution amount will be ...
___________________ [ ] $______ per hour
[ ] ______% of the prevailing wage.
___________________ [ ] $______ per hour
[ ] ______% of the prevailing wage.
___________________ [ ] $______ per hour
[ ] ______% of the prevailing wage.
________________________________________________________________________________________________
3. The contribution will be made on behalf of each Active Participant in the Prevailing
Wage Component ... [check if applicable]:
a. [ ] who is a Non-Highly Compensated Employee.
4. If such a Participant also is eligible for an Employer Regular Profit Sharing Contribution
for a Plan Year, such contribution ... [check one]:
a. [ ] N/A - such Participants will not be eligible for Employer Regular
Profit Sharing Contributions.
b. [ ] will not
c. [ ] will
... be offset by the Prevailing Wage Contribution.
[NOTE: EMPLOYER REGULAR PROFIT SHARING CONTRIBUTIONS SHOULD NOT BE DEPOSITED OR ALLOCATED UNTIL THE
END OF THE PLAN YEAR (EXCEPT UNDER A PREVAILING WAGE COMPONENT).]
VESTING SCHEDULE J.9. A Participant's vested percentage in his/her Employer Regular Profit Sharing Contribution Account
FOR EMPLOYER will be ... [check one]:
REGULAR PROFIT
SHARING COMPONENT:
a. [ ] 100% at all times.
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[PLAN SEC. 10.2(e)] b. [X] determined under the following schedule ... [complete as desired]:
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 40%
---
2 80%
---
3 100% [20% or more]
---
4 100% [40% or more]
---
5 100% [60% or more]
---
6 100% [80% or more]
---
7 or more 100%
c. [ ] determined under the following schedule ... [complete as desired]:
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 ___%
2 ___%
3 ___%
4 ___%
5 or more 100%
[NOTE: IF THE PLAN IS TOP-HEAVY, AND IF THE VESTING SCHEDULE SPECIFIED ABOVE DOES NOT SATISFY THE
VESTING REQUIREMENTS APPROPRIATE FOR A TOP-HEAVY PLAN UNDER PLAN SEC. 17.2, THE VESTED PERCENTAGE OF
THE PARTICIPANT WILL BE THE GREATER OF THE VESTED PERCENTAGE DETERMINED UNDER THE VESTING SCHEDULE
SPECIFIED ABOVE OR THE APPLICABLE VESTING SCHEDULE SPECIFIED IN PLAN SEC. 17.2. IF THE PLAN WAS, BUT
HAS CEASED TO BE TOP-HEAVY, THE APPROPRIATE VESTING SCHEDULE WILL BE DETERMINED UNDER Q.3.]
J.10. The vesting schedule specified above applies to the Employer Regular Profit Sharing Contribution
Accounts ... [check one]: [NOTE: IF THE VESTING SCHEDULE IS AMENDED, SPECIAL RULES (INCLUDING A
PARTICIPANT ELECTION) MAY APPLY UNDER PLAN SEC. 10.2(k).]
a. [X] of all Participants.
b. [ ] of Participants who become ... [check one]:
1. [ ] Employees
2. [ ] Active Participants in the Employer Regular Profit Sharing Component
... on or after ____ [month day, year] (and the vesting schedule in effect prior to such date
will apply to all other Participants).
c. [ ] reflecting Employer Regular Profit Sharing Contributions made for periods on or after ____
[month day, year] (and the vesting schedule in effect prior to such date will apply to all
Employer Regular Profit Sharing Contributions made for periods prior to such date).
TREATMENT OF J.11. A Pending Allocation Account that reflects Forfeitures from Employer Regular Profit Sharing
FORFEITURES: Contribution Accounts ... [check one]:
[PLAN SEC. 6.2(d)]
[COMPLETE ONLY IF a. [X] can
A VESTING SCHEDULE b. [ ] cannot
APPLIES WITH
RESPECT TO ANY ... be applied to pay administrative expenses of the Plan if so directed by the Plan Administrator.
PART OR ALL OF THE
EMPLOYER REGULAR J.12. A Pending Allocation Account that reflects Forfeitures from Employer Regular Profit Sharing
PROFIT SHARING Contribution Accounts (to the extent not applied to pay administrative expenses if permitted in J.11)
CONTRIBUTION will be ... [check one]:
ACCOUNT]
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a. [ ] applied as a credit against ... [check each that applies]:
1. [ ] Employer Safe-Harbor and/or Regular Matching Contributions
2. [ ] Employer Safe-Harbor and/or Regular Profit Sharing Contributions
... that are made under the Plan, as and when directed by the Lead Employer.
b. [X] allocated as of the last day of the Plan Year as an additional Employer Regular
Profit Sharing Contribution. The allocation will be made in the same manner as (and
as part of) any variable contribution, or in proportion to any fixed contribution
(disregarding any contribution under a prevailing wage formula), under the Plan.
[NOTE: IF THE PLAN PROVIDES FOR A VARIABLE CONTRIBUTION (e.g., A DISCRETIONARY
CONTRIBUTION), AND A CONTRIBUTION IS NOT MADE FOR A PLAN YEAR, THE ALLOCATION WILL BE
MADE IN THE SAME MANNER AS THE VARIABLE CONTRIBUTION WOULD HAVE BEEN ALLOCATED.]
[NOTE: IF THE PLAN PROVIDES FOR A FIXED CONTRIBUTION UNDER AN INTEGRATED FORMULA, THE
ALLOCATION WILL BE MADE IN PROPORTION TO PLAN COMPENSATION FOR THE PLAN YEAR.]
c. [ ] allocated as of the last day of the Plan Year in proportion to Plan Compensation for
the Plan Year. The allocation will be among all eligible Participants described in
J.7.
IN-SERVICE WITHDRAWALS: J.13. Withdrawals are allowed from Employer Regular Profit Sharing Contribution Accounts
[PLAN SEC. 11.2] ... [check a., or check each of b. through d. that applies]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [X] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [X] age 59 1/2.
3. [ ] age _____ ... [check each that applies]:
a. [ ] and completion of ______ years of ... [check one]:
1. [ ] vesting Service.
2. [ ] participation in the Plan. [NOTE: PARTICIPATION IS
MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY
DATE.]
b. [ ] but only if at the time of the withdrawal the Participant is
... [check one]:
1. [ ] fully vested
2. [ ] at least ______ % vested
... in his/her Employer Regular Profit Sharing Contribution
Account.
4. [ ] completion of ______ years of ... [check one]:
a. [ ] vesting Service.
b. [ ] participation in the Plan. [NOTE: PARTICIPATION IS MEASURED ON
AN ELAPSED TIME BASIS FROM THE ENTRY DATE.]
c. [ ] at any age on account of Hardship ... [check if applicable]:
1. [ ] but only if at the time of the withdrawal the Participant is ... [check
one]:
a. [ ] fully vested
b. [ ] at least _____ % vested
... in his/her Employer Regular Profit Sharing Contribution Account.
d. [ ] for any reason, but only if at the time of the withdrawal the Participant is fully
vested in his/her Employer Regular Profit Sharing Contribution Account, and
|
provided the withdrawal may not include amounts allocated to the Contribution Account
within two years prior to the withdrawal ... [check if applicable]:
[NOTE: THE CALCULATION OF THE MAXIMUM AMOUNT AVAILABLE FOR WITHDRAWAL IS SET FORTH IN
PLAN SEC. 11.2(a).]
1. [ ] unless the Participant has completed five years of participation in the
Plan. [NOTE: PARTICIPATION IS MEASURED ON AN ELAPSED TIME BASIS FROM THE
ENTRY DATE.]
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K. EMPLOYER QUALIFIED MATCHING AND PROFIT SHARING COMPONENT
[NOTE: CONTRIBUTIONS ELECTED UNDER THIS SECTION K. ARE IN ADDITION TO ANY EMPLOYER SAFE-HARBOR MATCHING, REGULAR MATCHING, SAFE-HARBOR PROFIT SHARING OR REGULAR PROFIT SHARING CONTRIBUTIONS.]
EMPLOYER QUALIFIED K.1. Employer Qualified Matching and/or Qualified Profit Sharing Contributions ... [check
CONTRIBUTIONS: one]:
[PLAN SECS. 5.3 AND 6.3]
a. [X] will
b. [ ] will not [Skip to Section L.]
... be made under the Plan.
[NOTE: EMPLOYER QUALIFIED MATCHING AND/OR QUALIFIED PROFIT SHARING CONTRIBUTIONS MUST BE
MADE WITHIN TWELVE MONTHS FOLLOWING THE CLOSE OF THE APPLICABLE PLAN YEAR. HOWEVER,
CONTRIBUTIONS MADE LATER THAN 30 DAYS AFTER THE EMPLOYER'S TAX FILING DEADLINE MUST BE
TREATED AS ANNUAL ADDITIONS IN THE LIMITATION YEAR MADE FOR PURPOSES OF CODE SECTION
415.]
[NOTE: THE "APPLICABLE" PLAN YEAR IS THE CURRENT PLAN YEAR IF THE CURRENT YEAR TESTING
METHOD IS USED, OR THE PRIOR PLAN YEAR IF THE PRIOR YEAR TESTING METHOD IS USED.]
EMPLOYER QUALIFIED K.2. Employer Qualified Matching Contributions (QMACs) will be allocated among the ...
MATCHING CONTRIBUTIONS [check one of a. or b., and check one of c. - e.]:
(QMACs):
[PLAN SEC. 5.3] a. [X] Non-Highly Compensated Employees
b. [ ] Highly and Non-Highly Compensated Employees [NOTE: THIS OPTION IS NOT APPROPRIATE IF
THE "PRIOR YEAR" TESTING METHOD IS USED.]
... who ... [check one]:
c. [X] are eligible Participants described in I.7 (relating to the Employer Regular Matching
Component) with respect to the applicable Plan Year. [NOTE: THIS OPTION IS
APPROPRIATE ONLY IF THE PLAN INCLUDES AN EMPLOYER REGULAR MATCHING COMPONENT.]
d. [ ] benefit under the applicable Component for the applicable Plan Year. [NOTE: THE
"APPLICABLE" COMPONENT IS THE EMPLOYEE PRE-TAX COMPONENT IN THE CASE OF A
CONTRIBUTION MADE TO SATISFY THE ACTUAL DEFERRAL PERCENTAGE (ADP) TEST OF
CODE SECTION 401(k); OR THE EMPLOYER REGULAR MATCHING COMPONENT IN THE CASE OF A
CONTRIBUTION MADE TO SATISFY THE ACTUAL CONTRIBUTION PERCENTAGE (ACP) TEST OF CODE
SECTION 401(m).] [NOTE: IF A COMPONENT IS DISAGGREGATED INTO TWO OR MORE SEPARATE
COMPONENTS FOR PURPOSES OF THE COVERAGE REQUIREMENTS OF CODE SECTION 410(b), ANY
DISCRETIONARY CONTRIBUTION WILL BE DETERMINED SEPARATELY FOR EACH DISAGGREGATED
COMPONENT.]
[NOTE: AN EMPLOYEE "BENEFITS" UNDER THE EMPLOYEE PRE-TAX COMPONENT IF HE/SHE IS
ELIGIBLE TO MAKE EMPLOYEE PRE-TAX CONTRIBUTIONS DURING THE APPLICABLE PLAN YEAR. AN
EMPLOYEE "BENEFITS" UNDER THE EMPLOYER REGULAR MATCHING COMPONENT IF HE/SHE SATISFIES
THE REQUIREMENTS IN I.7. FOR THE APPLICABLE PLAN YEAR.]
e. [ ] are Active Participants in the Employee Pre-Tax Component ... [check one]:
1. [ ] at some time during
2. [ ] on the last day of
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3. [ ] throughout
... the applicable Plan Year.
K.3. Employer Qualified Matching Contributions (QMACs) will be a discretionary amount
determined by the Lead Employer. The contribution will be allocated ... [check one]:
a. [X] in proportion to the Employee Pre-Tax Contributions of each eligible Participant that
do not exceed ... [check one]:
1 [X] N/A - no limit.
2. [ ] ______ % of his/her Plan Compensation for the Plan Year. [NOTE: IF THE PLAN
INCLUDES AN EMPLOYER SAFE-HARBOR COMPONENT, INCLUDE A PERCENTAGE NO GREATER
THAN 6%.]
3. [ ] $ ______ .
b. [ ] as an equal dollar amount to each eligible Participant who has Employee Pre-Tax
Contributions.
c. [ ] in proportion to the Employer Regular Matching Contributions of each eligible
Participant.
EMPLOYER QUALIFIED PROFIT K.4. Employer Qualified Profit Sharing Contributions (QNECs) will be allocated among the ...
SHARING CONTRIBUTIONS [check one of a. or b., and check one of c. - e.]:
(QNECs):
[PLAN SEC. 6.3] a. [X] Non-Highly Compensated Employees
b. [ ] Highly and Non-Highly Compensated Employees [NOTE: THIS OPTION IS NOT APPROPRIATE IF
THE "PRIOR YEAR" TESTING METHOD IS USED.]
... who ... [check one]:
c. [X] are eligible Participants described in J.7 (relating to the Employer Regular Profit
Sharing Component) with respect to the applicable Plan Year. [NOTE: THIS OPTION IS
APPROPRIATE ONLY IF THE PLAN INCLUDES AN EMPLOYER REGULAR PROFIT SHARING COMPONENT.]
d. [ ] benefit under the applicable Component for the applicable Plan Year. [NOTE: THE
"APPLICABLE" COMPONENT IS THE EMPLOYEE PRE-TAX COMPONENT IN THE CASE OF A
CONTRIBUTION MADE TO SATISFY THE ACTUAL DEFERRAL PERCENTAGE (ADP) TEST OF
CODE SECTION 401(k); OR THE EMPLOYER REGULAR MATCHING COMPONENT IN THE CASE OF A
CONTRIBUTION MADE TO SATISFY THE ACTUAL CONTRIBUTION PERCENTAGE (ACP) TEST OF
CODE SECTION 401(m).] [NOTE: IF A COMPONENT IS DISAGGREGATED INTO TWO OR MORE
SEPARATE COMPONENTS FOR PURPOSES OF THE COVERAGE REQUIREMENTS OF CODE SECTION
410(b), ANY DISCRETIONARY CONTRIBUTION WILL BE DETERMINED SEPARATELY FOR EACH
DISAGGREGATED COMPONENT.]
[NOTE: AN EMPLOYEE "BENEFITS" UNDER THE EMPLOYEE PRE-TAX COMPONENT IF HE/SHE IS
ELIGIBLE TO MAKE EMPLOYEE PRE-TAX CONTRIBUTIONS DURING THE APPLICABLE PLAN YEAR. AN
EMPLOYEE "BENEFITS" UNDER THE EMPLOYER REGULAR MATCHING COMPONENT IF HE/SHE SATISFIES
THE REQUIREMENTS IN I.7. FOR THE APPLICABLE PLAN YEAR.]
e. [ ] are Active Participants in the Employee Pre-Tax Component ... [check one]:
1. [ ] at some time during
2. [ ] on the last day of
3. [ ] throughout
... the applicable Plan Year.
K.5. Employer Qualified Profit Sharing Contributions (QNECs) will be a discretionary amount
determined by the Lead Employer. The contribution will be allocated ... [check one]:
a. [X] as a uniform percentage of Plan Compensation for the Plan Year ... [check each that
applies]:
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1. [ ] using testing compensation as the definition of Plan Compensation for the
Plan Year instead of the definition in Item E. [NOTE: FOR THIS PURPOSE,
"TESTING COMPENSATION" MEANS THE DEFINITION OF COMPENSATION USED FOR
PURPOSES OF APPLYING THE ACTUAL DEFERRAL PERCENTAGE (ADP) TEST OR ACTUAL
CONTRIBUTION PERCENTAGE (ACP) TEST FOR THE APPLICABLE PLAN YEAR.]
2. [ ] disregarding Plan Compensation for the Plan Year in excess of $ ______
[specify a dollar amount less than the compensation limit in effect
under Code Section 401(a)(17)].
b. [ ] as an equal dollar amount.
c. [ ] first to the eligible Participant with the lowest Plan Compensation for the Plan
Year, then to the eligible Participant with the next lowest Plan Compensation for the
Plan Year, etc. until the applicable test is met, with the allocation to each
eligible Participant limited to the amount permitted under Code Section 415. [NOTE:
THIS OPTION IS NOT APPROPRIATE IF THE ALLOCATION WILL BE MADE TO HIGHLY COMPENSATED
EMPLOYEES.]
[NOTE: IF A COMPONENT IS DISAGGREGATED INTO TWO OR MORE SEPARATE COMPONENTS FOR PURPOSES
OF THE COVERAGE REQUIREMENTS OF CODE SECTION 410(b), ANY DISCRETIONARY CONTRIBUTION WILL
BE DETERMINED SEPARATELY FOR EACH DISAGGREGATED COMPONENT.]
IN-SERVICE WITHDRAWALS: K.6. Withdrawals are allowed from Employer Qualified Matching and/or Qualified Profit Sharing
[PLAN SEC. 11.2] Contribution Accounts ... [check one]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [X] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2, if later).
2. [X] age 59 1/2.
3. [ ] age ______ [60 or more].
c. [ ] for Hardship after age 59 1/2.
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L. EMPLOYEE ROLLOVER COMPONENT
EMPLOYEE ROLLOVER L.1. Employee Rollover Contributions are ... [check one]
CONTRIBUTIONS:
[PLAN SEC. 4.5] a. [ ] not allowed. [Skip to Section M.]
b. [X] allowed if the Employee is ... [check one]:
1. [X] in Covered Employment (but regardless of whether he/she is an Active
Participant).
2. [ ] an Active Participant in any Component of the Plan.
L.2. Employee Rollover Contributions will be allowed in ... [check one]:
a. [X] cash only ... [check if applicable]:
1. [ ] except that an outstanding loan made under a prior employer's plan will be
accepted if the loan is not in default and the transfer satisfies such
requirements as may be imposed under the participant loan program (if any)
of the Plan.
b. [ ] cash or in kind (to the extent not prohibited by the Funding Agent), except that an
outstanding loan made under a prior employer]'s plan ... [check one]:
1. [ ] will not be accepted.
2. [ ] will be accepted only if the loan is not in default and the transfer
satisfies such requirements as may be imposed under the participant loan
program (if any) of the Plan.
IN-SERVICE WITHDRAWALS: L.3. Withdrawals are allowed from Employee Rollover Contribution Accounts ... [check
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[PLAN SEC. 11.2] one]:
a. [X] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason and at any time.
c. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
3. [ ] age ______ .
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M. RETIREMENT, DISABILITY AND HARDSHIP
RETIREMENT AGE: M.1. The Normal Retirement Age is ... [check one]:
[PLAN SECS. 2.19 AND 2.47]
a. [X] age 55 [65 or less].
b. [ ] the later of age _______ [65 or less] or the _______ [5th or less] anniversary of the
first day of the Plan Year in which the Participant commenced participation in the
Plan.
M.2. The Early Retirement Age is ... [check one]:
a. [X] N/A - early retirement is not recognized under the Plan.
b. [ ] age ______ [less than Normal Retirement Age].
c. [ ] the later of age _______ [less than Normal Retirement Age] or the
date on which the Participant completes ______ years of vesting Service.
DISABILITY: M.3. A Participant will be deemed to be Disabled for purposes of the Plan if he/she ... [check
[PLAN SEC. 2.18] one]:
a. [X] has a physical or mental condition that makes him/her unable to engage in any
substantial gainful activity and that can be expected to result in death or has
lasted or can be expected to last for at least a twelve-consecutive-month period.
b. [ ] meets the standard for long-term disability benefits under any disability plan
maintained by a Controlled Group Member.
c. [ ] has been determined to be disabled for purposes of Social Security.
d. [ ] has a physical or mental condition that makes him/her permanently unable to perform
the normal duties of his/her job with the Participating Employer.
e. [ ] has a physical or mental condition that makes him/her permanently unable to engage in
any occupation for wage or profit for which he/she is reasonably fitted by training,
education or experience.
HARDSHIP: M.4. A Participant will be deemed to be under a Hardship for purposes of the Plan if he/she
[PLAN SEC. 2.33] has a financial need resulting from ... [check each that applies]:
a. [X] expenses for medical care described in Code Section 213(d) incurred by the
Participant, his/her spouse, or his/her dependents (as defined in Code Section 152),
or necessary for any of those persons to obtain such medical care.
b. [X] costs directly related to the purchase of the Participant's principal residence
(excluding mortgage payments).
c. [X] payment of tuition and related educational fees for the next 12 months of
post-secondary education for the Participant, his/her spouse, children, or
dependents.
d. [X] the need to prevent the eviction of the Participant from the Participant's principal
residence or foreclosure on the mortgage of the Participant's principal residence.
e. [ ] other [specify in a manner that prevents employer discretion]: _______ . [NOTE: THIS
HARDSHIP STANDARD DOES NOT APPLY TO HARDSHIP WITHDRAWALS FROM EMPLOYEE PRE-TAX
CONTRIBUTION ACCOUNTS PRIOR TO AGE 59 1/2.]
M.5. The Hardship amount ... [check one]:
a. [X] may
b. [ ] may not
... include any amount necessary to pay any federal, state or local income taxes or
penalties reasonably expected to result from the distribution.
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N. SPECIAL VESTING RULES
[NOTE: DO NOT COMPLETE IF THE PLAN PROVIDES FOR FULL AND IMMEDIATE VESTING OF ALL CONTRIBUTION ACCOUNTS. SKIP TO SECTION O.]
VESTING: N.1. A Participant's vested percentage in his/her Employee Pre-Tax, After-Tax, Deductible,
[PLAN SEC. 10.2(e)] Forfeiture Restoration and Rollover Contribution Accounts, and in his/her Employer
Safe-Harbor Matching, Qualified Matching, Safe-Harbor Profit Sharing and Qualified Profit
Sharing Contribution Accounts, will be 100% at all times.
A Participant's vested percentage in his/her Employer Regular Matching Contribution
Account will be determined under I.11.
A Participant's vested percentage in his/her Employer Regular Profit Sharing Contribution
Account will be determined under J.9.
SERVICE DISREGARDED FOR N.2. To determine the vested percentage of a Participant in his/her Employer Regular Matching
VESTING: or Regular Profit Sharing Contribution Account, Service ... [check each that applies]:
[PLAN SEC. 10.2(f)]
a. [ ] before the Participant attained the age of ______ [18 or less]
b. [ ] before any Controlled Group Member first maintained this Plan (or a predecessor plan)
... will be disregarded. ...
c. [ ] Such Service also will be disregarded for purposes of determining ... [check each
that applies]:
1. [ ] Early Retirement Age.
2. [ ] whether a Participant has satisfied the requirements to receive an
in-service withdrawal that is conditioned on vesting Service.
SPECIAL VESTING EVENTS: N.3. A Participant will be fully vested in an Employer Regular Matching and/or Regular Profit
[PLAN SEC. 10.2(b)] Sharing Contribution Account if he/she ... [check each that applies]:
a. [X] dies
b. [X] becomes Disabled
c. [ ] attains age ______ [less than Normal Retirement Age]
d. [ ] attains Early Retirement Age
... while employed with a Controlled Group Member. [NOTE: A PARTICIPANT WILL IN ALL
EVENTS BE FULLY VESTED UPON ATTAINMENT OF NORMAL RETIREMENT AGE WHILE EMPLOYED WITH A
CONTROLLED GROUP MEMBER.]
FORFEITURES: N.4. The portion of an Employer Regular Matching or Regular Profit Sharing Contribution
[PLAN SEC. 10.2(g)] Account in which a Participant is not vested will become a Forfeiture on the earlier of
the date the Participant incurs a period of five consecutive one year Breaks in Service
or the ... [check one]:
a. [ ] first day of the Plan Year after the Plan Year in which
b. [ ] last day of the Plan Year in which
c. [X] date on which
d. [ ] last day of the ... [check one]:
1. [ ] first
2. [ ] second
3. [ ] third
4. [ ] fourth
5. [ ] fifth
... Plan Year after the Plan Year in which
... the Participant receives a full distribution of the vested portion of the
Contribution
|
Account (or immediately upon Termination of Service if the Participant is not vested in
the Contribution Account).
VESTING FORMULA FOR PARTIALLY N.5. If a Participant receives a distribution after his/her Termination of Service of less
VESTED: than the full vested balance of a partially vested Employer Regular Matching or Regular
[PLAN SEC. 10.2(c) AND (g)] Profit Sharing Account ... [check one]:
a. [X] the following formula will apply after the distribution to determine the vested
portion of the Contribution Account ... [check one]: [NOTE: UNDER THIS OPTION, A
PARTIAL DISTRIBUTION WILL NOT RESULT IN AN IMMEDIATE FORFEITURE.] [NOTE: THIS FORMULA
WILL ALSO APPLY IF A PARTICIPANT IS ELIGIBLE TO AND DOES RECEIVE AN IN-SERVICE
WITHDRAWAL (INCLUDING THOSE FOR HARDSHIP) FROM A PARTIALLY VESTED EMPLOYER REGULAR
MATCHING AND REGULAR PROFIT SHARING ACCOUNT.]
1. [ ] P(AB+D)-D
2. [X] P[AB+(RxD)]-(RxD)
b. [ ] a proportionate share of the remaining balance of the Contribution Account will
immediately become a Forfeiture. [NOTE: UNDER THIS OPTION, THE FORFEITURE WILL BE
IMMEDIATELY TAKEN FROM THE CONTRIBUTION ACCOUNT AND CREDITED TO THE PENDING
ALLOCATION ACCOUNT REFLECTING FORFEITURES.]
If a Participant makes a withdrawal (including those for Hardship) before his/her
Termination of Service from a partially vested Employer Regular Matching or Regular
Profit Sharing Contribution Account, the formula that will apply to determine the
vested portion of such Contribution Account after the in-service withdrawal is ...
[check one]: [NOTE: THE VARIABLES USED IN THE FOLLOWING FORMULAS ARE DESCRIBED IN
PLAN SEC. 10.2(c).]
1. [ ] N/A - In-service withdrawals are not permitted from partially vested
Accounts.
2. [ ] P(AB+D)-D
3. [ ] P[AB+(RxD)]-(RxD)
REINSTATEMENT UPON RETURN TO N.6. A Participant who has a Termination of Service, receives a distribution of the vested
SERVICE: portion of an Employee Regular Matching or Regular Profit Sharing Contribution Account
[PLAN SEC. 10.2(h)] and returns to Covered Employment ... [check one]:
a. [X] will
b. [ ] will not
... be required to repay the prior distribution in order to have the amount of a prior
Forfeiture reinstated to such Contribution Account.
SPECIAL VESTING RULES FOR LIFE N.7. The value attributable to a life insurance policy held for the Contribution Account of
INSURANCE: the Participant will be ... [check one]:
[PLAN SEC. 10.3]
a. [X] N/A - life insurance is not available from a partially vested Contribution Account.
b. [ ] fully vested notwithstanding the normal vesting rules applicable to the Contribution
Account.
c. [ ] subject to the normal vesting rules applicable to the Contribution Account ... [check
if applicable]:
1. [ ] and all premiums paid on a term life policy (other than unearned premiums
returned by the insurance company to the Trustee or Custodian) and, in the
case of a cash value policy ... [check one]:
a. [ ] the excess of the premium paid over the cash surrender value of
the policy
b. [ ] the PS-58 cost charged to the Participant as a result of the
Trustee or Custodian holding the policy
... will be treated as a withdrawal for purposes of applying the formula
specified in N.5.
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O. EMPLOYER SECURITIES
EMPLOYER SECURITIES: O.1. The Plan ... [check one]:
[PLAN SEC. 14.15 AND 14.16]
a. [ ] may not [Skip to Section P.]
b. [X] may
... hold Qualifying Employer Securities or Predecessor Employer Securities.
VOTING PROVISIONS: O.2. A Participant will be allowed to direct the vote on Qualifying Employer Securities
[PLAN SECS. 14.15(d) AND credited to his/her Account on ... [check one]: [NOTE: A PARTICIPANT IS NOT ALLOWED TO
14.16] VOTE WITH RESPECT TO PREDECESSOR EMPLOYER SECURITIES.]
a. [X] any matter put to the vote of shareholders. Qualifying Employer Securities for which
Participants fail to provide timely direction will be voted ... [check one]:
1. [ ] in the same proportion as the votes cast on securities for which other
Participants provide timely direction.
2. [X] at the discretion of the Lead Employer, or a Named Fiduciary or Investment
Manager designated by the Lead Employer.
3. [ ] at the discretion of the Trustee.
b. [ ] any significant corporate event (as defined in Plan Sec. 14.15(e)). ... [complete 1.
and 2.]:
1. Qualifying Employer Securities for which Participants fail to provide timely
direction will be voted ... [check one]:
a. [ ] in the same proportion as the votes cast on securities for which
other Participants provide timely direction.
b. [ ] at the discretion of the Lead Employer, or a Named Fiduciary or
Investment Manager designated by the Lead Employer.
c. [ ] at the discretion of the Trustee.
2. With respect to any matter other than a significant corporate event,
Qualifying Employer Securities will be voted ... [check one]:
a. [ ] at the discretion of the Lead Employer, or a Named Fiduciary or
Investment Manager designated by the Lead Employer.
b. [ ] at the discretion of the Trustee.
c. [ ] N/A - not allowed to direct any vote. Qualifying Employer Securities will be
voted ... [check one]:
1. [ ] at the discretion of the Lead Employer, or a Named Fiduciary or Investment
Manager designated by the Lead Employer.
2. [ ] at the discretion of the Trustee.
TENDER PROVISIONS: O.3. A Participant will be allowed to direct the hold or sell/exchange decision on Qualifying
[PLAN SECS. 14.15(e) Employer Securities or Predecessor Employer Securities credited to his/her Account in
AND 14.16] ... [check one]:
a. [X] any ... [check one or both]:
1. [X] tender or exchange offer.
2. [X] cash or stock offer made in connection with a merger or other corporate
transaction.
Qualifying Employer Securities or Predecessor Employer Securities for which
Participants fail to provide timely direction will be held or sold/exchanged ...
[check one]:
3. [ ] in the same proportion as the securities for which other Participants
|
provide timely direction.
4. [X] at the discretion of the Lead Employer, or a Named Fiduciary or Investment
Manager designated by the Lead Employer.
5. [ ] at the discretion of the Trustee.
b. [ ] N/A - not allowed to direct the hold or sell/exchange decision in any corporate
transaction. Qualifying Employer Securities or Predecessor Employer Securities will
be held or sold/exchanged ... [check one]:
1. [ ] at the discretion of the Lead Employer, or a Named Fiduciary or Investment
Manager designated by the Lead Employer.
2. [ ] at the discretion of the Trustee.
IN-KIND DISTRIBUTION OPTION: O.4. A Participant ... [check one]:
[PLAN SEC. 12.3(c)]
a. [X] may not take an in-service withdrawal (including those for Hardship) or a
distribution following Termination of Service in the form of Qualifying Employer
Securities or Predecessor Employer Securities.
b. [ ] may take ... [check each that applies]:
1. [ ] an in-service withdrawal (if otherwise available) ... [check one]:
a. [ ] including
b. [ ] excluding
... those for Hardship.
2. [ ] a distribution following Termination of Service
... in the form of Qualifying Employer Securities or Predecessor Employer Securities
(to the extent the applicable Contribution Account is then invested in such
securities).
|
P. PAYMENT OF BENEFITS
BALANCES LESS THAN CASH- P.1. The Benefit subject to involuntary cash-out is ... [check one]:
OUT AMOUNT:
[PLAN SEC. 12.4] a. [X] $5000.00 [$5,000 or less].
b. [ ] N/A - involuntary cash-out distributions will not be made. [Skip to P.3.]
P.2. If a Benefit is subject to involuntary cash-out, the payment will be made to the
Participant or Beneficiary as soon as administratively practicable after ... [check one]:
[NOTE: THE TIMING OF DISTRIBUTIONS SHOULD BE COORDINATED WITH THE VALUATION DATE(s),
WHICH ARE THE DATE(s) ON WHICH ASSETS ARE VALUED UNDER THE PLAN.]
a. [X] Termination of Service.
b. [ ] the first day of the ... [check one]:
1. [ ] month
2. [ ] Plan Year quarter
3. [ ] Plan Year
... following Termination of Service.
c. [ ] other [specify]: ______ . [at least as soon as b.3]
BALANCES MORE THAN CASH- P.3. If a Benefit is not subject to involuntary cash-out, the earliest that the Participant
OUT AMOUNT: or Beneficiary may elect to receive payment is as soon as administratively practicable
[PLAN SEC. 12.3(a)] after ... [check one]: [NOTE: THE TIMING OF DISTRIBUTIONS SHOULD BE COORDINATED WITH THE
VALUATION DATES, WHICH ARE THE DATE(s) ON WHICH ASSETS ARE VALUED UNDER THE PLAN.]
a. [X] Termination of Service.
b. [ ] the first day of the ... [check one]:
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1. [ ] month
2. [ ] Plan Year quarter
3. [ ] Plan Year
... following Termination of Service.
c. [ ] the later of Termination of Service or attainment of ... [check one]:
1. [ ] Normal Retirement Age.
2. [ ] age ___ [less than Normal Retirement Age].
d. [ ] a Break in Service of ______ years has occurred following Termination of Service.
e. [ ] other [specify]: ____. [no later than Normal Retirement Age]
P.4. A Benefit may be paid after Termination of Service and prior to the earliest payment
date specified above if ... [check a., or each of b. through d. that applies]:
a. [X] N/A - earlier payment is not permitted.
b. [ ] Termination of Service occurs because the Participant ... [check each that applies]:
1. [ ] died.
2. [ ] became Disabled.
3. [ ] retired after ... [check one]:
a. [ ] Early Retirement Age.
b. [ ] age ____ [less than Normal Retirement Age].
c. [ ] the Benefit does not exceed $____ [specify dollar amount].
d. [ ] the Participant is under a Hardship.
P.5. A Benefit must be paid (or must commence) to a Participant or Beneficiary ... [check
one]:
a. [X] by the date distributions are required to commence under Code Section 401(a)(9).
b. [ ] on or as soon as administratively practicable after the Participant's Normal
Retirement Age (or age 62, if later) ... [check if applicable]:
1. [ ] even if the Participant then remains employed with a Controlled Group
Member.
[NOTE: IF A BENEFIT IS PAID (OR COMMENCES) AND ALLOCATIONS ARE SUBSEQUENTLY MADE TO THE
ACCOUNT, THE ADDITIONAL BENEFIT RESULTING FROM SUCH ALLOCATIONS WILL BE PAID IN THE SAME
FORM AS SOON AS ADMINISTRATIVELY PRACTICABLE FOLLOWING THE CLOSE OF EACH PLAN YEAR OR
FOLLOWING TERMINATION OF SERVICE.]
PAYMENT FORMS: P.6. The methods of payment permitted under the Plan (for Benefits in excess of the cash-out
[PLAN SECS. 12.3(b) AND 12.6] amount) include ... [check each that applies]: [NOTE: MINIMUM DISTRIBUTIONS WILL IN ALL
EVENTS BE MADE IN ACCORDANCE WITH CODE SECTION 401(a)(9).]
a. [X] a lump sum payment ... [check if applicable]:
1. [ ] including partial payments made at the request of the Participant or
Beneficiary.
b. [X] installments ... [check each that applies]:
1. [X] over a fixed period that does not exceed ... [check each that applies]:
a. [X] a number of years equal to the life expectancy of the
Participant, as determined under Table V in Treas. Reg.
Section 1.72-9.
b. [X] a number of years equal to the joint life and last survivor
expectancy of the Participant and his/her Beneficiary, as
determined under Table VI in Treas. Reg. Section 1.72-9.
|
c. [ ] ______ years.
d. [ ] the shorter of _____ months or the applicable life expectancy
under Code Section 401(a)(9).
e. [ ] other [specify]: _____ .
2. [ ] of a fixed amount, as directed by the Participant or Beneficiary.
c. [ ] purchase of a period-certain annuity contract.
d. [ ] purchase of any type of annuity contract (including a life annuity), in which case,
the qualified annuity requirements of the Plan apply ... [check 1. or 2., and
complete 3. and 4.]:
1. [ ] to all Participants
2. [ ] only to a Participant who elects a life annuity form of payment.
3. The Qualified Joint and Survivor Annuity is a joint and survivor annuity with
a survivor percentage of _______ [not less than 50% or more than 100%].
4. The Qualified Preretirement Survivor Annuity is the life annuity that can be
purchased with ... [check one]:
a. [ ] 100%
b. [ ] 50%
... of the Participant's Benefit.
P.7. The payment options specified above apply to ... [check one]:
a. [X] all Contribution Accounts.
b. [ ] Contribution Accounts (or subaccounts thereunder) reflecting contributions made after
______ [month day, year], and the payment options in effect under the Plan prior to
such date will apply to all other Contribution Accounts (or subaccounts thereunder).
[NOTE: PAYMENT OPTIONS THAT WERE AVAILABLE UNDER THE PLAN PRIOR TO THE LATER OF THE
EFFECTIVE DATE OR ADOPTION DATE OF AN AMENDMENT TO THE PLAN GENERALLY CANNOT BE
ELIMINATED. IF THE PAYMENT OPTIONS ARE CHANGED TO BE MORE RESTRICTIVE, SEPARATE
SUBACCOUNTS MUST BE MAINTAINED TO REFLECT THE PORTION OF EACH CONTRIBUTION ACCOUNT
SUBJECT TO THE PRIOR PAYMENT OPTIONS WHICH CANNOT BE ELIMINATED.]
PAYMENT MEDIUM: P.8. The medium of payment permitted with respect to a non-annuity distribution under the Plan
[PLAN SEC. 12.3(c)] is ... [check one]:
a. [X] cash only.
b. [ ] cash or in-kind.
[NOTE: DISTRIBUTION OF QUALIFYING EMPLOYER SECURITIES OR PREDECESSOR EMPLOYER SECURITIES
IS GOVERNED BY O.4.]
BENEFICIARY: P.9. If a designation of Beneficiary is not on file, or if all designated Beneficiaries
[PLAN SECS. 13.1 AND 13.3] predecease the Participant, the Beneficiary will be the ... [check one]:
a. [X] Participant's Spouse, or if no Surviving Spouse, the Participant's estate.
b. [ ] person or persons surviving in the first of the following classes in which there is a
survivor, share and share alike:
1. Participant's Spouse.
2. Participant's children, except that if any of those children predeceases the
Participant but leaves issue surviving, such issue will take by right of
representation the share their parent would have taken if living.
3. Participant's parents.
4. Participant's brothers and sisters.
5. Participant's estate.
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c. [ ] other [specify]:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
[NOTE: THE PARTICIPANT'S SPOUSE MUST BE THE FIRST PRIMARY BENEFICIARY.]
P.10. The Spouse of a Participant must consent to a designation of another or different primary
Beneficiary ... [check one]:
a. [X] under all circumstances.
b. [ ] only if the Participant and Spouse have been married for one year. [NOTE: A
DESIGNATION WILL CEASE TO BE EFFECTIVE AFTER ONE YEAR WITHOUT CONSENT.]
P.11. A Beneficiary ... [check one]:
a. [X] may not
b. [ ] may
... designate a successor beneficiary to take upon the death of the first Beneficiary.
[NOTE: THIS DESIGNATION WILL NOT OPERATE TO CHANGE ANY DESIGNATION MADE BY THE
PARTICIPANT. THUS, A BENEFICIARY MAY DESIGNATE A SUCCESSOR ONLY IF SUCH DESIGNATION IS
NOT INCONSISTENT WITH A DESIGNATION MADE BY THE PARTICIPANT.]
MINIMUM DISTRIBUTIONS: P.12. The Required Beginning Date of a Participant will be ... [check one]:
[PLAN SECS. 2.62 AND 12.7]
a. [X] the April 1 of the calendar year after the later of the calendar year in which the
Participant attains age 70 1/2, or (except in the case of a Participant who is a more
than five-percent owner in the Plan Year ending in the calendar year in which he/she
attains age 70 1/2), the calendar year of Termination of Service.
Special Effective Date [complete only if this Adoption Agreement implements a change
in the Required Beginning Date from b. to a. after the Plan has been amended for
GUST]:
The above date will be treated as the Required Beginning Date effective ____ [month
day, year]. A Participant who attained age 70 1/2 prior to this date and who has not
had a Termination of Service ... [check one]:
1. [ ] may not elect to stop minimum distributions.
2. [ ] may elect to stop minimum distributions and recommence such distributions
by the April 1 of the calendar year after the calendar year of his/her
Termination of Service, and the new commencement date ... [check one]:
a. [ ] will
b. [ ] will not
... be treated as a new Benefit Starting Date for purposes of the Plan.
[NOTE: THE OPTION TO STOP MINIMUM DISTRIBUTIONS DOES NOT APPLY TO A
PARTICIPANT WHO IS A MORE THAN FIVE-PERCENT OWNER IN THE PLAN YEAR ENDING
IN THE CALENDAR YEAR IN WHICH HE/SHE ATTAINS AGE 70 1/2.]
b. [ ] the April 1 of the calendar year after the Participant attains age 70 1/2. [NOTE:
THIS OPTION IS NOT APPROPRIATE FOR A NEW PLAN WITH AN ORIGINAL EFFECTIVE DATE ON OR
AFTER JANUARY 1, 1997.]
P.13. To determine the minimum distribution required to be made to a Participant prior to
death, ... [check one]: [NOTE: ONLY THE LIFE EXPECTANCY OF THE PARTICIPANT AND HIS/HER
SPOUSE BENEFICIARY ARE ELIGIBLE FOR RECALCULATION.]
a. [ ] the Participant can elect the life expectancies to be recalculated. In the absence of
an election, ... [check one]:
1. [ ] the life expectancy of the Participant will be recalculated annually, and
the life expectancy of his/her Spouse Beneficiary ... [check one]:
|
a. [ ] also will be recalculated annually.
b. [ ] will not be recalculated.
2. [ ] life expectancies will not be recalculated.
b. [X] the life expectancy of the Participant will be recalculated annually, and
the life expectancy of his/her Spouse Beneficiary ... [check one]:
1. [X] also will be recalculated annually.
2. [ ] will not be recalculated.
c. [ ] life expectancies will not be recalculated.
P.14. To determine the minimum distribution required to be made to a Beneficiary when
the Participant dies prior to the Required Beginning Date (and prior to
commencement of an irrevocable annuity), the 5-year rule ... [check one]:
a. [X] applies in all cases. [Skip to Section Q.]
b. [ ] applies, except that ... [check each that applies]:
1. [ ] a Spouse Beneficiary
2. [ ] any Beneficiary
... may elect to have minimum distributions commence by December 31 of the
year following the year of the Participant's death, and such minimum
distributions may continue beyond the 5-year limit. ... [check if
applicable]:
3. [ ] A Spouse Beneficiary may further elect to have minimum distributions
commence at any time prior to December 31 of the calendar year in which the
Participant would have reached age 70 1/2.
P.15. To determine the minimum distribution required to be made to a Spouse
Beneficiary when the Participant dies prior to the Required Beginning Date (and
prior to commencement of an irrevocable annuity), ... [check one]:
a. [ ] the Spouse Beneficiary can elect whether his/her life expectancy is
to be recalculated. In the absence of an election, life expectancy ...
[check one]:
1. [ ] will be recalculated annually.
2. [ ] will not be recalculated.
b. [ ] the life expectancy of the Spouse Beneficiary will be recalculated annually.
c. [ ] the life expectancy of the Spouse Beneficiary will not be recalculated.
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Q. TOP-HEAVY PROVISIONS
TOP-HEAVY ELIGIBLE Q.1. A Top-Heavy Eligible Participant is an Active Participant at some time during the Plan
PARTICIPANT: Year who is an Employee on the last day of the Plan Year and who is a Non-Key Employee
[PLAN SEC. 17.4(k)] ... [check if applicable]:
a. [ ] or a Key Employee
... with respect to the Plan Year.
TOP-HEAVY CONTRIBUTION Q.2. If the Plan is Top-Heavy and a defined contribution minimum must be provided
REQUIREMENT: under this Plan, the minimum contribution requirement will be satisfied ...
[PLAN SEC. 17.1] [check one]:
a. [X] by means of an additional contribution made solely on behalf of the Top-Heavy
Eligible Participants. [NOTE: UNDER THIS OPTION, THE EMPLOYER SAFE-HARBOR AND/OR REGULAR
PROFIT SHARING CONTRIBUTION WILL BE DETERMINED OR ALLOCATED AS PROVIDED IN SECTION H.
AND/OR J, AND ADDITIONAL CONTRIBUTIONS WILL BE MADE AS NECESSARY TO SATISFY PLAN SEC.
17.1(a).]
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b. [ ] by modification of the otherwise applicable contribution formula or allocation
method for the Employer Safe-Harbor or Regular Profit Sharing Contributions in
accordance with Plan Sec. 17.1(b). [NOTE: THIS OPTION IS NOT APPROPRIATE IF THE PLAN
DOES NOT OTHERWISE PROVIDE FOR AN EMPLOYER SAFE-HARBOR OR REGULAR PROFIT SHARING
CONTRIBUTION. UNDER THIS OPTION, THE EMPLOYER SAFE-HARBOR AND/OR REGULAR PROFIT SHARING
CONTRIBUTIONS WILL NOT BE DETERMINED OR ALLOCATED AS PROVIDED IN SECTION H. AND/OR J.,
BUT WILL INSTEAD BE DETERMINED OR ALLOCATED AS PROVIDED IN PLAN SEC. 17.1(b).]
TOP-HEAVY VESTING SCHEDULE: Q.3. If the Plan was, but has ceased to be, Top-Heavy, the applicable vesting schedule specified
[PLAN SEC. 17.2] in Plan Sec. 17.2 will ... [check one]:
a. [ ] cease to apply. [NOTE: THIS WILL BE TREATED AS AN AMENDMENT TO THE VESTING SCHEDULE
THAT IS SUBJECT TO THE PARTICIPANT ELECTION SPECIFIED IN PLAN SEC. 10.2(k).]
b. [X] continue to apply to all Participants.
c. [ ] continue to apply to any Participant who has three or more years of vesting Service
as of the last day the Plan is Top-Heavy (but not any other Participant).
[NOTE: IF THE VESTING SCHEDULE SPECIFIED IN PLAN SEC. 17.2 CONTINUES TO APPLY, A
PARTICIPANT'S VESTED PERCENTAGE WILL BE THE GREATER OF THE VESTED PERCENTAGE UNDER SUCH
SCHEDULE OR THE VESTING SCHEDULE THAT OTHERWISE APPLIES UNDER THE PLAN.]
COORDINATION WITH OTHER Q.4. Does any Controlled Group Member maintain another qualified plan? [check one]:
QUALIFIED PLANS:
[PLAN SEC. 17.1] a. [X] No. [Skip to Section R.]
b. [ ] Yes.
Q.5. If this Plan is Top-Heavy, and if a Participant also is covered under another qualified
defined contribution plan, the defined contribution minimum will be provided under ...
[check one]:
a. [ ] N/A - no such plan exists.
b. [ ] the following plan [specify name]:___.
c. [ ] this Plan.
Q.6. If this Plan is Top-Heavy, and if a Participant also is covered under a qualified defined
benefit plan, ... [check one]:
a. [ ] N/A - no such plan exists. [Skip to Section R.]
b. [ ] a defined benefit minimum of 2% per year of service (up to 20%) will be provided under
the defined benefit plan.
c. [ ] a defined contribution minimum of 5% will be provided under the defined contribution
plan designated in Q.5. (or if there is no other defined contribution plan, or if
another defined contribution plan is designated in Q.5. but the Participant is not
covered under such plan, then under this Plan).
d. [ ] other [specify manner in which top-heavy benefit will be provided; attach addendum
if necessary]:___.
Q.7. The Top-Heavy Ratio will be determined using the following interest rate and mortality
assumptions to value accrued benefits under defined benefit plans [complete]:
Interest: ______%
Mortality: ______.
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R. CODE SECTION 415 COORDINATION
415 COMPENSATION: R.1. The 415 Compensation of a Participant is his/her ... [check one]:
[PLAN SEC. 18.4(b)]
a. [X] Plan Compensation determined without regard to any exclusions elected in E.2. and
without regard to the compensation limit imposed under Code Section 401(a)(17).
b. [ ] earnings required to be reported in the Wages, Tips and other Compensation box of
Form W-2.
c. [ ] earnings for purposes of Code Section 415(c)(3).
d. [ ] earnings for purposes of federal income for withholding.
|
[NOTE: FOR LIMITATION YEARS BEGINNING ON OR AFTER JANUARY 1, 1998, 415 COMPENSATION INCLUDES
ELECTIVE DEFERRALS AND ANY CONTRIBUTIONS MADE AT THE ELECTION OF THE PARTICIPANT TO A
CAFETERIA PLAN THAT IS EXCLUDED FROM GROSS INCOME UNDER CODE SECTION. 125.]
LIMITATION YEAR: R.2. The Limitation Year with respect to the Plan is the ... [check one of a. or b., and check
[PLAN SEC. 18.4(h)] c. if it applies]:
a. [X] Plan Year.
b. [ ] twelve-consecutive-month period ending each ______ [month day].
[check c. if the Limitation Year has been amended]
c. [ ] The Limitation Year has been amended. The last Limitation Year before the amendment
ended ____ [month day, year], and the short Limitation Year resulting from the amendment
began on the next day and ended ____ [month day, year].
CORRECTION METHOD: R.3 If Excess Annual Additions have been made under the Plan, the correction will be made using
[PLAN SEC. 18.1(b)] the ... [check one]: [NOTE: THE FOLLOWING CORRECTION METHOD APPLIES ONLY AFTER EMPLOYEE
PRE-TAX AND AFTER-TAX CONTRIBUTIONS FOR THE LIMITATION YEAR HAVE BEEN REFUNDED TO THE
PARTICIPANT.]
a. [ ] individual reduction method - that is, the Excess Annual Additions will remain in
the Participant's Account (so long as he/she remains an Active Participant) and will
reduce Employer Contributions made on behalf of such Participant in future Limitation
Years.
b. [X] suspense account method - that is, the Excess Annual Additions will be placed in the
Pending Allocation Account and will reduce Employer Contributions of all Participants in
future Limitation Years.
c. [ ] current allocation method - that is, the Excess Annual Additions will be reallocated
among other Active Participants as of the last day of the current Limitation Year in
proportion to Plan Compensation.
R.4. If a Pending Allocation Account is ever maintained to hold Excess Annual Additions, such
Account ... [check one]: [NOTE: AN ELECTION MUST BE MADE EVEN IF THE INDIVIDUAL REDUCTION
METHOD IS USED TO CORRECT EXCESS ANNUAL ADDITIONS, BECAUSE EXCESS ANNUAL ADDITIONS THAT
REMAIN IN A PARTICIPANT'S CONTRIBUTION ACCOUNTS AT TERMINATION OF SERVICE MUST THEN BE
CREDITED TO A PENDING ALLOCATION ACCOUNT.]
a. [X] will
b. [ ] will not
... share in investment gains and losses under the Plan.
COORDINATION WITH OTHER PLANS: R.5. Does any Controlled Group Member maintain (i) another qualified defined contribution plan
[PLAN SEC. 18.2 AND 18.3] (other than another master or prototype plan), (ii) a simplified employee pension as defined
in Code Section 408(a), (iii) a welfare benefit fund as defined in Code Section 419(e), or
(iv) an individual medical account as defined in Code Section 415(1)(2), under which amounts
are treated as Annual Additions with respect to any Participant in this Plan? [check one]:
a. [X] No. [Skip to Section S.]
b. [ ] Yes.
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R.6. If a Participant is covered under another qualified defined contribution plan (other than a
master or prototype plan) or under a simplified employee pension, welfare benefit fund or
individual medical account of a Controlled Group Member, ... [check one]:
a. [ ] the method used to coordinate the limit on Annual Additions will be the same method
that would be used for a master or prototype plan under Plan Sec. 18.2(a).
b. [ ] the Excess Annual Additions will be attributed ... [check one]:
1. [ ] last
2. [ ] first
... to this Plan.
c. [ ] other [specify the method that will be used to coordinate the annual addition limits
in a manner that precludes discretion; attach addendum if necessary]: _____ .
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S. SPECIAL TESTING RULES
[NOTE: IF THIS ADOPTION AGREEMENT AMENDS THE PLAN TO RETROACTIVELY COMPLY WITH THE SMALL BUSINESS JOB PROTECTION ACT OF 1996 AND THE TAXPAYER RELIEF ACT OF 1997, COMPLETE AND ATTACH THE "SPECIAL TESTING RULES ADDENDUM".]
HIGHLY COMPENSATED EMPLOYEES: S.1. An Employee will be a Highly Compensated Employee if he/she is a more than five-percent
[PLAN SEC. 2.35] owner at any time during the current Plan Year or the twelve-consecutive-month period
immediately preceding the current Plan Year. [NOTE: THE CONSTRUCTIVE OWNERSHIP RULES UNDER
CODE SECTION 318 APPLY FOR DETERMINING WHO IS A MORE THAN FIVE-PERCENT OWNER.]
An Employee also will be a Highly Compensated Employee if his/her Compensation during the
look-back period exceeded the limit in effect under Code Section 414(q)(1)(b) ... [check if
applicable]: [NOTE: THE FOLLOWING ELECTION CAN ONLY BE MADE IF IT IS MADE IN ALL PLANS OF
ALL CONTROLLED GROUP MEMBERS.]
a. [ ] and the Employee was in the top-paid group for the look-back period.
S.2. The look-back period is the ... [check one]:
a. [X] twelve-consecutive-month period immediately preceding the current Plan Year.
b. [ ] calendar year ending within the current Plan Year. [NOTE: THIS ELECTION IS NOT
APPROPRIATE IF THE PLAN YEAR IS THE CALENDAR YEAR, AND CAN ONLY BE MADE IF IT IS MADE IN
ALL PLANS (OTHER THAN CALENDAR YEAR PLANS) OF ALL CONTROLLED GROUP MEMBERS.]
[NOTE: COMPLETE S.3. THROUGH S.10. ONLY IF THE PLAN HAS AN EMPLOYEE PRE-TAX OR AFTER-TAX COMPONENT.]
ADP/ACP TESTING METHOD: S.3. The Actual Deferral Percentage Test and the Actual Contribution Percentage Test will be
[PLAN SEC. 19.2 AND 19.3] applied using the ... [select the method being used for the Plan Year for which this
Adoption Agreement is effective]: [NOTE: IF THE PLAN IS DESIGNATED AS A SAFE-HARBOR
PLAN, IT WILL BE DEEMED TO BE USING THE CURRENT YEAR TESTING METHOD - THUS, B. MUST BE
ELECTED BELOW.]
a. [X] prior year testing method. [NOTE: IF THE PLAN FIRST IS REQUIRED TO APPLY THE ACTUAL
DEFERRAL PERCENTAGE TEST OR ACTUAL CONTRIBUTION PERCENTAGE TEST IN A PLAN YEAR BEGINNING
ON OR AFTER JANUARY 1, 1997 (AND THE PLAN IS NOT A SUCCESSOR PLAN), AND THE PRIOR YEAR
TESTING METHOD IS USED FOR SUCH PLAN YEAR, THEN THE TEST WILL BE APPLIED FOR SUCH PLAN
YEAR USING THE GREATER OF (i) 3%, OR (ii) THE ACTUAL DEFERRAL PERCENTAGE OR ACTUAL
CONTRIBUTION PERCENTAGE, AS APPROPRIATE, OF THE NON-HIGHLY COMPENSATED EMPLOYEES FOR
SUCH PLAN YEAR.]
b. [ ] current year testing method. [NOTE: THE CURRENT YEAR TESTING ELECTION CAN BE CHANGED
ONLY UNDER CIRCUMSTANCES PRESCRIBED BY THE IRS.]
OTHER ELECTIONS REGARDING S.4. In applying the Actual Deferral Percentage Test, ... [check each that applies]:
ADP/ACP TESTING:
a. [X] Employer Regular Matching Contributions (to the extent such contributions satisfy the
requirements to be Employer Qualified Matching Contributions (QMACs))
|
[PLAN SEC. 19.2, 19.3 AND 19.4] b. [X] Employer Regular Profit Sharing Contributions (to the extent such contributions satisfy
the requirements to be Employer Qualified Profit Sharing Contributions (QNECs))
... may be taken into account under such test at the discretion of the Plan
Administrator.
S.5. In applying the Actual Contribution Percentage Test, ... [check each that applies]:
a. [X] Employee Pre-Tax Contributions
b. [X] Employer Regular Profit Sharing Contributions (to the extent such contributions
satisfy the requirements to be Employer Qualified Profit Sharing Contributions (QNECs))
... may be taken into account under such test at the discretion of the Plan
Administrator.
[NOTE: EMPLOYER QUALIFIED MATCHING (QMACs) AND QUALIFIED PROFIT SHARING (QNECs)
CONTRIBUTIONS (IF PERMITTED UNDER THE PLAN) MAY IN ALL CASES BE TAKEN INTO ACCOUNT IN
APPLYING THE ACTUAL DEFERRAL PERCENTAGE TEST AND ACTUAL CONTRIBUTION PERCENTAGE TEST. ALSO,
EMPLOYER SAFE-HARBOR PROFIT SHARING CONTRIBUTIONS MAY BE TAKEN INTO ACCOUNT IN APPLYING THE
ACTUAL CONTRIBUTION PERCENTAGE TEST, BUT ONLY TO THE EXTENT THEY EXCEED THE MINIMUM
CONTRIBUTION REQUIRED TO QUALIFY AS SAFE-HARBOR CONTRIBUTIONS UNDER CODE SECTION 401(k).]
S.6. If Employee After-Tax Contributions are allowed under the Plan, Employee Pre-Tax
Contributions ... [check one]:
a. [X] N/A - Employee After-Tax Contributions are not allowed under the Plan.
b. [ ] may not
c. [ ] may at the discretion of the ... [check one]:
1. [ ] Plan Administrator
2. [ ] affected Participant
... be recharacterized as Employee After-Tax Contributions to the extent necessary to
satisfy the Actual Deferral Percentage Test.
[NOTE: RECHARACTERIZATION IS PERMISSIBLE ONLY IF THE PLAN USES THE CURRENT YEAR TESTING
METHOD AND THE PLAN CURRENTLY ALLOWS EMPLOYEE AFTER-TAX CONTRIBUTIONS, AND THEN ONLY IF THE
RECHARACTERIZED AMOUNT, IN COMBINATION WITH EMPLOYEE AFTER-TAX CONTRIBUTIONS, DOES NOT
EXCEED ANY LIMITS OTHERWISE IMPOSED UNDER THE PLAN ON EMPLOYEE AFTER-TAX CONTRIBUTIONS.]
S.7. If Employer Regular Matching Contributions are forfeited as Excess Aggregate Contributions,
such forfeited amounts will be ... [check a., or check one of b. through d.]:
a. [ ] N/A - the Plan provides for full and immediate vesting of Employer Regular Matching
Contribution Accounts.
b. [X] applied in the same manner as any other Forfeiture from an Employer Regular Matching
Contribution Account.
c. [ ] allocated as of the last day of the Plan Year to which such Employer Regular Matching
Contributions relate among the Non-Highly Compensated Employees with respect to such
Plan Year who are Active Participants in the ... [check one]:
1. [ ] Employee Pre-Tax Component
2. [ ] Employer Regular Matching Component
3. [ ] Employer Regular Profit Sharing Component
... during such Plan Year and who have otherwise satisfied the requirements to receive a
contribution under such Component for such Plan Year. The allocation will be made in
proportion to the Plan Compensation for the Plan Year of each eligible Participant.
d. [ ] applied as a credit against Employer Safe-Harbor and/or Regular Matching
|
Contributions that are made under the Plan, as and when directed by the Lead Employer.
S.8. If the multiple use test is failed for a Plan Year (after corrective contributions or
distributions, if any), ... [check one]:
a. [X] the Actual Contribution Percentage
b. [ ] the Actual Deferral Percentage
c. [ ] the Actual Contribution Percentage and Actual Deferral Percentage (proportionately)
... will be reduced as necessary to satisfy such test. [NOTE: IF CONTRIBUTIONS OF THE SAME
TYPE ARE MADE UNDER MORE THAN ONE PLAN, THE CORRECTION WILL BE MADE UNDER THE PLAN
DESIGNATED BY THE PLAN ADMINISTRATOR.]
GAIN OR LOSS ON EXCESS S.9. The gain or loss allocable to Excess Elective Deferrals that are refunded to a Participant,
CONTRIBUTIONS: or allocable to Excess Contributions or Excess Aggregate Contributions distributed to
[PLAN SEC. 19.1(d), 19.2(d) satisfy the Actual Deferral Percentage Test, Actual Contribution Percentage Test, or
AND 19.3(d)] multiple use test, will be determined using ... [check one]:
a. [X] the safe harbor method specified in the Plan.
b. [ ] a method established by the Plan Administrator that reasonably reflects the manner in
which gain or loss is allocated under the Plan.
S.10. The gain or loss allocated ... [check one]:
a. [X] does not
b. [ ] does
... include gain or loss for the "gap period" - that is, the period from the end of the year
to the date of distribution.
T. SPECIAL EFFECTIVE DATE RULES
T.1. The following Components are added and effective after the Original Effective Date or
Amendment Effective Date specified in Section A ... [check each that applies]:
a. [ ] Employee Pre-Tax Component
Effective Date:_____.
b. [ ] Employee After-Tax Component
Effective Date:_____.
c. [ ] Employer Regular Matching Component
Effective Date:_____[must be the first day of a Matching Contribution Period].
d. [ ] Employer Regular Profit Sharing Component
Effective Date:_____.
e. [ ] Employer Qualified Matching and Qualified Profit Sharing Component
Effective Date:_____.
f. [ ] Employer Prevailing Wage Component
Effective Date:_____.
T.2. The effective date for the following provisions is different than the Original Effective
Date or Amendment Effective Date specified in Section A ... [complete as appropriate]:
a. [X] The Trust Agreement incorporated by reference into this Agreement as it pertains to
those assets contributed for the 2002 profit sharing contribution.
Effective Date: December 15, 2002.
b. [ ] _____.
|
Effective Date:_____.
c. [ ] _____.
Effective Date:_____.
d. [ ] _____.
Effective Date:_____.
U. FROZEN CONTRIBUTIONS ACCOUNTS
U.1. The following Components have been removed, but Contribution Accounts still exist under the
Plan for contributions made under the Component (these are referred to as "Frozen"
Contribution Accounts) ... [check each that applies]: [NOTE: COMPLETE THE FROZEN
CONTRIBUTION ACCOUNT ADDENDUM.]
a. [X] Employee Rollover Component
b. [ ] Employee After-Tax Component
c. [ ] Employee Deductible Component
d. [ ] Employee Safe-Harbor Matching and/or Safe-Harbor Profit Sharing Component
e. [X] Employer Regular Matching Component
f. [ ] Employer Regular Profit Sharing Component (including Prevailing Wage Component)
g. [ ] Employer Qualified Matching and/or Qualified Profit Sharing Component
h. [ ] Employer Pension Component
V. OTHER INFORMATION FOR THE PARTICIPATING EMPLOYERS
Failure to fill out this Adoption Agreement completely and correctly may result in failure of the
Plan to qualify under Code Section 401(a).
The Plan Administrator is responsible for administration of the Plan, including the filing of the
annual report on Form 5500 and the preparation and delivery of summary plan descriptions, summaries
of material modifications and summary annual reports. The Lead Employer and other fiduciaries agree
to obtain bonds as required by law. [ERISA Section 412.]
Inquiries regarding the adoption of the Plan, the meaning of its provisions or the effect of the
opinion letter should be directed to the financial organization or other entity from which the Lead
Employer obtained the Plan or to the Sponsor of the Prototype.
W. SPONSOR OF THE PROTOTYPE
The Sponsor of the Prototype is Scudder Trust Company
Scudder Trust Company
11 Northeastern Boulevard
Salem, NH 03079-1953
Phone Number: (617) 295-1000
The Sponsor of the Prototype (or its authorized representative) will inform the Lead Employer if
any amendments are made to the Prototype Defined Contribution Plan, or if the Prototype Defined
Contribution Plan is discontinued or abandoned.
|
[The remaining portion of the page is intentionally blank]
X. RELIANCE ON IRS OPINION LETTER
The Participating Employers may rely on an opinion letter issued by the Internal Revenue Service
("IRS") as evidence that the Plan is qualified under Code Section 401(a) only to the extent
provided in Announcement 2001-77, 2001-30 I.R.B.
The Participating Employers may not rely on the opinion letter in certain other circumstances or
with respect to certain qualification requirements, which are specified in the opinion letter
issued with respect to the Plan and in Announcement 2001-77.
In order to have reliance in such circumstances or with respect to such qualification requirements,
application for a determination letter must be made to Employee Plans Determinations of the
Internal Revenue Service.
This Adoption Agreement may be used only in conjunction with Basic Plan Document #03.
|
Y. LEAD EMPLOYER SIGNATURE
IN WITNESS WHEREOF, the Lead Employer has caused this Adoption Agreement to be adopted effective as of the Original Effective Date or Amendment Effective Date (in Section A. Preamble).
YOU SHOULD CONSULT WITH AN ATTORNEY OR OTHER INDEPENDENT QUALIFIED ADVISOR AS TO THE LEGAL AND TAX EFFECT OF ADOPTING THE PLAN.
Date signed: _______________________ Lead Employer: Range Resources Corporation
By: ______________________________________
Name [print]: ________________________
Its [title]: ________________________
|
Z. TRUSTEE OR CUSTODIAN SIGNATURE
FOR TRUST AGREEMENT
The Trustee(s) hereby accepts appointment as such in accordance with the Prototype Trust Agreement.
FOR INDIVIDUAL TRUSTEE(S) SERVING PURSUANT TO THE "TRUST AGREEMENT FOR INDIVIDUAL TRUSTEES" (ATTACH ADDITIONAL SHEETS IF NECESSARY)
Date signed:_______________________________
Effective:_________________________________
Trustee (1):______
Trustee (2):______
Trustee (3):______
Trustee (4):______
FOR A FINANCIAL ORGANIZATION SERVING PURSUANT TO THE "TRUST AGREEMENT FOR DIRECTED TRUSTEE" OR THE "TRUST AGREEMENT WITH DISCRETIONARY TRUSTEE OPTION"
Date signed:_______________________________
Effective:_________________________________
Trustee: Scudder Trust Company
By: _______________________________________
Name [print]:__________________________
Its [title]:___________________________
[additional signature is optional]
And: ______________________________________
Name [print]:_________________________
Its [title]:__________________________
OR
FOR CUSTODIAL AGREEMENT
The Custodian hereby accepts its appointment as such in accordance with the Custodial Agreement.
Date signed:________________________ Custodian: _________________________
Effective:__________________________
By: ________________________________
Name [print]:___________________
Its [title]:____________________
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SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
PREDECESSOR EMPLOYER ADDENDUM
The following Predecessor Employers are covered by Section D.13. of the Adoption Agreement (in addition to those listed in Section D.13. of the Adoption Agreement):
Employment with the following Predecessor Employer(s) which did not maintain the Plan ... [complete as appropriate]: [NOTE: CODE SECTION 414(a) REQUIRES THAT SERVICE WITH A PREDECESSOR EMPLOYER BE TAKEN INTO ACCOUNT IF A PLAN OF THE PREDECESSOR EMPLOYER IS MAINTAINED BY A CONTROLLED GROUP MEMBER. THE SERVICE CREDIT IS IN ADDITION TO THAT REQUIRED UNDER CODE SECTION 414(a).]
Name:_____.
Employer Identification Number:.
... counts as Service for ... [check each that applies]:
1. [ ] eligibility purposes, with Service with the Predecessor Employer calculated based on ... [check one]:
a. [ ] Hours of Service from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
2. [ ] vesting purposes, with Service with the Predecessor Employer calculated based on ... [check one]:
a. [ ] Hours of Service from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
However, prior service credit for vesting purposes will be limited to ________ years. [complete if desired.]
3. [ ] determining whether the Participant is entitled to share in the Employer Regular Matching or Regular Profit Sharing Contribution. For such Participant, the compensation paid by the Predecessor Employer ... [check one]:
a. [ ] is not
b. [ ] is
... counted as Plan Compensation for purposes of determining or allocating the Employer Regular Matching or Regular Profit Sharing Contribution for the first year of participation under this Plan.
Name:______.
Employer Identification Number:______.
... counts as Service for ... [check each that applies]:
1. [ ] eligibility purposes, with Service with the Predecessor Employer calculated based on ... [check one]:
a. [ ] Hours of Service from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
2. [ ] vesting purposes, with Service with the Predecessor Employer calculated based on ... [check one]:
a. [ ] Hours of Service from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
b. [ ] elapsed time from ... [check one]:
1. [ ] last date of hire.
2. [ ] original date of hire.
3. [ ] other [specify]:_______.
However, prior service credit for vesting purposes will be limited to__________years. [complete if desired.]
3. [ ] determining whether the Participant is entitled to share in the Employer Regular Matching or Regular Profit Sharing Contribution. For such Participant, the compensation paid by the Predecessor Employer ... [check one]:
a. [ ] is not
b. [ ] is
... counted as Plan Compensation for purposes of determining or allocating the Employer Regular Matching or Regular Profit Sharing Contribution for the first year of participation under this Plan.
ATTACH ADDITIONAL SHEETS IF NECESSARY.
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
PARTICIPATING EMPLOYER ADDENDUM
The following Controlled Group Members are Participating Employers in the Plan (in addition to those listed in Section B.3. of the Adoption Agreement):
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
Participating Employer:
Name: _____.
EIN:____.
ATTACH ADDITIONAL SHEETS IF NECESSARY.
SCUDDER
INVESTMENTS
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
SUPPLEMENTAL INFORMATION - LEAD EMPLOYER
LEAD EMPLOYER INFORMATION
LEAD EMPLOYER: B.1 a. Lead Employer Name: Range Resources Corporation
[B.1]
B.2. Complete the following information about the Lead Employer ... [complete]:
a. Address ... [complete]:
1. Lead Employer EIN: 34-1312571
2. SIC Code: 324110
3. Address: 777 Main Street Suite 800
4. City: Fort Worth
5. State: Texas
6. Zip Code: 76102
7. Phone Number: 817-870-2601
b. Fiscal year end ... [check one]:
1. [X] December 31 ____________ [month year]
2. [ ] 52/53 week year: [describe]: ______________________________________
c. Type of business entity ... [check one]:
1. [X] C Corporation
2. [ ] S Corporation
3. [ ] Limited Liability Corporation
4. [ ] Partnership
5. [ ] Limited Liability Partnership
6. [ ] Sole Proprietorship
7. [ ] other [specify]: ______
d. Is the Lead Employer a Participating Employer in the Plan?
1. [X] Yes
2. [ ] No
e. Contact person for Lead Employer ... [complete]:
1. Name: Carol Culpepper
2. Phone Number: 817-870-2601
3. E-mail: _________________________________
B.2.1. Are there other business entities that are part of the controlled (or affiliated service)
group of the Lead Employer? ...
a. [ ] Yes [NOTE: FOR EACH CONTROLLED (OR AFFILIATED SERVICE) GROUP MEMBER,
COMPLETE THE SHEET LABELED SUPPLEMENTAL INFORMATION - CONTROLLED GROUP
MEMBERS]
b. [X] No
|
SCUDDER
INVESTMENTS
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
SUPPLEMENTAL INFORMATION - FUNDING VEHICLE
FUNDING INFORMATION
[INSTRUCTION: COMPLETE THE FOLLOWING IF AN INDIVIDUAL OR A COMMITTEE OF INDIVIDUALS IS A "TRUSTEE" OF ALL OR ANY PORTION OF THE PLAN ASSETS.]
FUNDING VEHICLE: C.5. The Trustee is the following individual or committee of individuals ...
[C.5] [complete]:
1. individual trustee(s) ... [complete]:
a. List the trustee(s)
1. Name: __________________________________________________________________
2. Name: __________________________________________________________________
3. Name: __________________________________________________________________
4. Name: __________________________________________________________________
5. Name: __________________________________________________________________
6. Name: __________________________________________________________________
7. Name: __________________________________________________________________
8. Name: __________________________________________________________________
b. Trustee contact ... [complete]:
1. Name: __________________________________________________________________
2. Address: _______________________________________________________________
3. City: __________________________________________________________________
4. State: _________________________________________________________________
5. Zip Code: ______________________________________________________________
6. Phone Number: __________________________________________________________
7. E-mail: ________________________________________________________________
|
[INSTRUCTION: COMPLETE THE FOLLOWING IF A FINANCIAL ORGANIZATION IS A "TRUSTEE" OF ALL OR ANY PORTION OF THE PLAN ASSETS.]
FUNDING VEHICLE: C.5. The Trustee is the following financial organization ... [complete]:
[C.5]
2. a financial organization serving pursuant to the Trust Agreement ... [check one]:
c. [X] Scudder Trust Company
11 Northeastern Boulevard
Salem, N.H. 03079
EIN: 02-0443137
d. [ ] Trustee information ... [complete]:
1. Name: _____________________________________________________________
2. EIN: ______________________________________________________________
3. Address: __________________________________________________________
4. City: _____________________________________________________________
5. State: ____________________________________________________________
6. Zip Code: _________________________________________________________
Trustee contact ... [complete]:
7. Name: _____________________________________________________________
8. Phone Number: _____________________________________________________
9. E-mail: ___________________________________________________________
|
[INSTRUCTION: COMPLETE THE FOLLOWING IF A FINANCIAL ORGANIZATION IS A "CUSTODIAN" OF ALL OR ANY PORTION OF THE PLAN ASSETS.]
FUNDING VEHICLE: C.5. The Custodian is the following financial organization ... [complete]:
[C.5]
1. Custodian information ... [complete]:
a. Name: __________________________________________________________________
b. EIN: ___________________________________________________________________
c. Address: _______________________________________________________________
d. City: __________________________________________________________________
e. State: _________________________________________________________________
f. Zip Code: ______________________________________________________________
2. Custodian contact ... [complete]:
a. Name: __________________________________________________________________
b. Phone Number: __________________________________________________________
c. E-mail: ________________________________________________________________
|
[INSTRUCTION: COMPLETE THE FOLLOWING IF THE PLAN IS FUNDED IN WHOLE OR IN PART THROUGH A GROUP ANNUITY CONTRACT WITH AN INSURANCE COMPANY (OTHER THAN A GROUP ANNUITY CONTRACT HELD AS AN ASSET OF A TRUST).]
FUNDING VEHICLE: C.5. The Annuity Funding Contract is with the following insurance company ... [complete]:
[C.5]
1. Insurance company information ... [complete]:
a. Name: __________________________________________________________________
b. EIN: ___________________________________________________________________
c. Address: _______________________________________________________________
d. City: __________________________________________________________________
e. State: _________________________________________________________________
f. Zip Code: ______________________________________________________________
g. Phone Number: __________________________________________________________
2. The contact person is ... [complete]:
a. Name: __________________________________________________________________
b. Phone Number: __________________________________________________________
c. E-mail: ________________________________________________________________
|
SCUDDER
INVESTMENTS
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
SUPPLEMENTAL INFORMATION - PLAN FEATURES
PLAN FEATURE INFORMATION
AGENT FOR LEGAL PROCESS: C.2.1 Who will be the agent for service of legal process? ... [check one]:
a. [X] The contact person for the Lead Employer
b. [ ] The following person ... [complete]:
1. Name: ___________________________________________________________
2. Address: ________________________________________________________
3. City: ___________________________________________________________
4. State: __________________________________________________________
5. Zip Code: _______________________________________________________
6. Phone Number: ___________________________________________________
RELATING TO PARTICIPANT C.7. Participant elections ... be changed by electronic media
ELECTIONS: (e.g., voice response unit or intranet)
a. [X] can
b. [ ] cannot
C.8 The administrative forms used for this Plan ... require approval by the Plan
Administrator ... [check one]:
a. [X] will
b. [ ] will not
C.10 Is the Plan Administrator responsible for processing address changes? ... [check one]:
a. [X] Yes
b. [ ] No, address changes are done via telephone with the recordkeeper ... [complete]:
1. The phone number is: _____________________________________
RELATING TO INVESTMENTS: C.11 Are participants allowed to self-direct the investment of any of their accounts? ...
[check one]:
a. [X] Yes ... [complete the following]:
1. In what percentage increments can participant investment changes be made? ...
[check one]:
a. [ ] 5%
b. [ ] 10%
c. [X] other [specify]: 1 %
2. Can a participant rebalance the investment of his/her current account when
he/she files investment directions for new contributions? ... [check one]:
a. [ ] Yes
b. [X] No
b. [ ] No
C.11.1 Does the Plan have an Investment Policy? ... [check one]:
a. [X] Yes. [NOTE: COMPLETE THE PARTICIPANT INVESTMENT POLICY QUESTIONNAIRE]
b. [ ] No
C.12 Are participant loans allowed from the plan? ... [check one]:
|
a. [X] Yes. [NOTE: COMPLETE THE PARTICIPANT LOAN POLICY QUESTIONNAIRE]
b. [ ] No
RELATING TO COLLECTIVE C.9 Are members of any collective bargaining units eligible to participate in the Plan? ...
BARGAINING EMPLOYEES: [check one]:
a. [ ] No
b. [X] Yes, members of the following collective bargaining units are eligible to
participate in the plan ... [specify]:
1. ______________________________________________________________
2. ______________________________________________________________
3. ______________________________________________________________
4. ______________________________________________________________
5. ______________________________________________________________
6. ______________________________________________________________
7. ______________________________________________________________
8. ______________________________________________________________
9. ______________________________________________________________
RELATING TO DEFERRAL F.16 Are deferral elections (changes in enrollment percentage, etc.) - other than the initial
CHANGES: election - required to be done electronically (that is, by voice response or web)? ...
[check one]:
a. [ ] Yes
b. [X] No, a participant can make changes via paper form ... .[complete]:
1. Can a participant elect a deferred date on which a change in his/her deferral
percentage will take effect? ... [check one]:
a. [X] No, all changes are effective as soon as administratively
practicable after the form is filed.
b. [ ] Yes, a participant can specify a later date on which a change will
take effect.
F.17 The initial deferral election can be made ... [check each that applies]:
a. [X] on a paper enrollment form.
b. [X] electronically (that is, by voice response or web).
RELATING TO ROLLOVER L.4 Will the Plan accept a personal check for rollovers? ... [check one]:
CONTRIBUTIONS:
a. [ ] Yes
b. [X] No, only cashier's checks or money orders will be accepted.
|
RELATING TO DISTRIBUTIONS: P.16 Is a Participant allowed to specify the Contribution Account from which a withdrawal
or distribution is to be made? ... [check one]:
a. [ ] N/A [NOTE: THIS OPTION IS APPROPRIATE ONLY IF THERE IS ONLY ONE CONTRIBUTION
ACCOUNT OR IF WITHDRAWALS OR DISTRIBUTIONS CAN NEVER BE MADE FROM MORE THAN
ONE CONTRIBUTION ACCOUNT.]
b. [ ] Yes
c. [X] No
P.17 Does the plan allow rollover checks to be sent directly to the rollover plan or IRA? ...
[check one]:
a. [ ] Yes
b. [X] No, a check will be sent (made payable to the rollover plan or IRA) to the
Participant.
P.18. Will a rollover option to a specific financial organization be available on the rollover
forms? ... [check one]:
a. [X] Yes, the following financial organization ... [specify]:
Scudder Investments
b. [ ] No, a check will be sent (made payable to the rollover plan or IRA) to the
Participant.
|
SCUDDER TRUST COMPANY
PROTOTYPE DEFINED CONTRIBUTION PLAN
FROZEN ACCOUNT ADDENDUM
The following vesting and withdrawal rules apply to frozen accounts under this Plan.
A. FROZEN EMPLOYEE ROLLOVER COMPONENT
VESTING: A.1. A Participant's vested percentage in his/her Frozen Employee Rollover Contribution
[PLAN SEC. 10.2(e)] Account will be 100% at all times.
IN-SERVICE WITHDRAWALS: A.2. Withdrawals are allowed from Frozen Employee Pre-Tax Contribution Accounts...
[PLAN SEC. 11.2] [check a., or check each of b. and c. that applies]:
a. [X] for any reason and at any time.
b. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2, if later).
2. [ ] age 59 1/2.
3. [ ] age _____ [60 or more].
c. [ ] at any age on account of Hardship.
|
B. FROZEN EMPLOYEE AFTER-TAX COMPONENT
VESTING: B.1. A Participant's vested percentage in his/her Frozen Employee After-Tax Contribution
[PLAN SEC. 10.2(e)] Account will be 100% at all times.
IN-SERVICE WITHDRAWALS: B.2. Withdrawals are allowed from Frozen Employee After-Tax Contribution Accounts...
[PLAN SEC. 11.2] [check one]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason and at any time.
c. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
3. [ ] age______.
|
C. FROZEN EMPLOYEE DEDUCTIBLE COMPONENT
VESTING: C.1. A Participant's vested percentage in his/her Frozen Employee Deductible Contribution
[PLAN SEC. 10.2(e)] Account will be 100% at all times.
IN-SERVICE WITHDRAWALS: C.2. Withdrawals are allowed from Frozen Employee Deductible Contribution Accounts...
[PLAN SEC. 11.2] [check one]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason and at any time.
c. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
3. [ ] age_______.
|
D. FROZEN EMPLOYER SAFE-HARBOR COMPONENT
VESTING: D.1. A Participant's vested percentage in his/her Frozen Employer Safe-Harbor Matching
[PLAN SEC. 10.2(e)] and/or Safe-Harbor Profit Sharing Contribution Account will be 100% at all times.
IN-SERVICE WITHDRAWALS: D.2. Withdrawals are allowed from Frozen Employer Safe-Harbor Matching and/or Safe-
[PLAN SEC. 11.2] Harbor Profit Sharing Contribution Accounts ... [check one]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2 if later).
2. [ ] age 59 1/2.
3. [ ] age_______[60 or more].
c. [ ] for Hardship after age 59 1/2.
|
E. FROZEN EMPLOYER REGULAR MATCHING COMPONENT
VESTING: E.1. A Participant's vested percentage in his/her Frozen Employer Regular Matching
[PLAN SEC. 10.2(e)] Contribution Account will be ... [check one]:
a. [X] 100% at all times.
b. [ ] determined under the following schedule ... [complete as desired]:
|
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 ____%
2 ____%
3 ____% [20% or more]
4 ____% [40% or more]
5 ____% [60% or more]
6 ____% [80% or more]
7 or more 100%
|
c. [ ] determined under the following schedule ... [complete as desired]: |
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 ___%
2 ___%
3 ___%
4 ___%
5 or more 100%
|
[NOTE: IF THE PLAN IS TOP-HEAVY, AND IF THE VESTING SCHEDULE SPECIFIED ABOVE DOES NOT SATISFY THE VESTING REQUIREMENTS APPROPRIATE FOR A TOP-HEAVY PLAN UNDER PLAN SEC. 17.2, THE VESTED PERCENTAGE OF THE PARTICIPANT WILL BE THE GREATER OF THE VESTED PERCENTAGE DETERMINED UNDER THE VESTING SCHEDULE SPECIFIED ABOVE OR THE APPLICABLE VESTING SCHEDULE SPECIFIED IN PLAN SEC. 17.2.] |
TREATMENT OF FORFEITURES: E.2. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Regular Matching
[PLAN SEC. 5.2(g)] Contribution Accounts ... [check one]:
a. [ ] can
b. [ ] cannot
... be applied to pay administrative expenses of the Plan if so directed by the Plan
Administrator.
E.3. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Regular Matching
Contribution Accounts (to the extent not applied to pay administrative expenses if permitted
in E.2) will be ... [check one]:
a. [ ] applied as a credit against ... [check each that applies]:
1. [ ] Employer Safe-Harbor Matching Contributions
2. [ ] Employer Safe-Harbor and/or Regular Profit Sharing Contributions
... that are made under the Plan, as and when directed by the Lead Employer.
b. [ ] allocated as of the last day of the Plan Year as an additional Employer Profit Sharing
Contribution. The allocation will be made in the same manner (and as part of) any
variable contribution, or in proportion to any fixed contribution, under the Plan.
[NOTE: IF THE PLAN PROVIDES FOR A FIXED EMPLOYER REGULAR PROFIT SHARING CONTRIBUTION
DETERMINED UNDER AN INTEGRATED FORMULA, THE PENDING ALLOCATION ACCOUNT WILL BE ALLOCATED
IN PROPORTION TO PLAN COMPENSATION FOR THE PLAN YEAR.]
c. [ ] allocated as of the last day of the Plan Year in proportion to Plan Compensation for the
Plan Year. The allocation will be among all eligible Participants who are eligible to
receive any Employer Contribution for the Plan Year or, if there are no such
Participants, among all eligible Participants who are eligible to make an Employee
Contribution for the Plan Year.
|
IN-SERVICE WITHDRAWALS: E.4. Withdrawals are allowed from Frozen Employer Regular Matching Contribution Accounts ...
[PLAN SEC. 11.2] [check a., or check each of b. through d. that applies]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [X] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [X] age 59 1/2.
3. [ ] age ______ [check each that applies]:
a. [ ] and completion of _________ years of ... [check one]:
1. [ ] vesting Service.
2. [ ] participation in the Plan. [NOTE: PARTICIPATION IS
MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY
DATE.]
b. [ ] but only if at the time of the withdrawal the Participant is ...
[check one]:
1. [ ] fully vested
2. [ ] at least _________ % vested
... in his/her Frozen Employer Regular Matching Contribution
Account.
4. [ ] completion of _____________ years of ... [check one]:
a. [ ] vesting Service.
b. [ ] participation in the Plan. [NOTE: PARTICIPATION IS MEASURED ON AN
ELAPSED TIME BASIS FROM THE ENTRY DATE.]
c. [ ] at any age on account of Hardship ... [check if applicable]:
1. [ ] but only if at the time of the withdrawal the Participant is ... [check one]:
a. [ ] fully vested
b. [ ] at least __________ % vested
... in his/her Frozen Employer Regular Matching Contribution Account.
d. [ ] for any reason, but only if at the time of the withdrawal the Participant is fully
vested in his/her Frozen Employer Regular Matching Contribution Account, and provided
the withdrawal may not include amounts allocated to the Contribution Account within two
years prior to the withdrawal ... [check if applicable]: [NOTE: THE CALCULATION OF THE
MAXIMUM AMOUNT AVAILABLE FOR WITHDRAWAL IS SET FORTH IN PLAN SEC. 11.2(a).]
1. [ ] unless the Participant has completed five years of participation in the Plan.
[NOTE: PARTICIPATION IS MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY
DATE.]
|
F. FROZEN EMPLOYER REGULAR PROFIT SHARING COMPONENT
VESTING: F.1. A Participant's vested percentage in his/her Frozen Employer Regular Profit Sharing
[PLAN SEC. 10.2(e)] Contribution Account will be ... [check one]:
a. [ ] 100% at all times. [Skip to F.4.]
b. [ ] determined under the following schedule ... [complete as desired]:
|
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 _____%
2 _____%
3 _____% [20% or more]
4 _____% [40% or more]
5 _____% [60% or more]
6 _____% [80% or more]
7 or more 100%
|
c. [ ] determined under the following schedule ... [complete as desired]: |
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 _____%
2 _____%
3 _____%
4 _____%
5 or more 100%
|
[NOTE: IF THE PLAN IS TOP-HEAVY, AND IF THE VESTING SCHEDULE SPECIFIED ABOVE DOES NOT
SATISFY THE VESTING REQUIREMENTS APPROPRIATE FOR A TOP-HEAVY PLAN UNDER PLAN SEC. 17.2, THE
VESTED PERCENTAGE OF THE PARTICIPANT WILL BE THE GREATER OF THE VESTED PERCENTAGE DETERMINED
UNDER THE VESTING SCHEDULE SPECIFIED ABOVE OR THE APPLICABLE VESTING SCHEDULE SPECIFIED IN
PLAN SEC. 17.2.]
TREATMENT OF FORFEITURES: F.2. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Regular Profit
[PLAN SEC. 6.2(c)] Sharing Contribution Accounts ... [check one]:
a. [ ] can
b. [ ] cannot
... be applied to pay administrative expenses of the Plan if so directed by the Plan
Administrator.
F.3. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Regular Profit
Sharing Contribution Accounts (to the extent not applied to pay administrative expenses if
permitted in F.2) will be ... [check one]:
a. [ ] applied as a credit against ... [check each that applies]:
1. [ ] Employer Safe-Harbor and/or Regular Matching Contributions
2. [ ] Employer Safe-Harbor Profit Sharing Contributions
... that are made under the Plan, as and when directed by the Lead Employer.
b. [ ] allocated as of the last day of the Plan Year in proportion to Plan Compensation for the
Plan Year. The allocation will be among all eligible Participants who are eligible to
receive any Employer Contribution for the Plan Year or, if there are no such
Participants, among all eligible Participants who are eligible to make an Employee
Contribution for the Plan Year.
IN-SERVICE WITHDRAWALS: F.4. Withdrawals are allowed from Frozen Employer Regular Profit Sharing Contribution Accounts...
[PLAN SEC. 11.2] [check a., or check each of b. through d. that applies]:
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age.
2. [ ] age 59 1/2.
|
3. [ ] age ____ ... [check each that applies]:
a. [ ] and completion of ______ years of ... [check one]:
1. [ ] vesting Service.
2. [ ] participation in the Plan. [NOTE: PARTICIPATION IS
MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY DATE.]
b. [ ] but only if at the time of the withdrawal the Participant is...
[check one]:
1. [ ] fully vested
2. [ ] at least _____ % vested
... in his/her Frozen Employer Regular Profit Sharing Contribution
Account.
4. [ ] completion of ______ years of ... [check one]:
a. [ ] vesting Service.
b. [ ] participation in the Plan. [NOTE: PARTICIPATION IS MEASURED ON AN
ELAPSED TIME BASIS FROM THE ENTRY DATE.]
c. [ ] at any age on account of Hardship ... [check if applicable]:
1. [ ] but only if at the time of the withdrawal the Participant is ... [check one]:
a. [ ] fully vested
b. [ ] at least _____ % vested
... in his/her Frozen Employer Regular Profit Sharing Contribution Account.
d. [ ] for any reason, but only if at the time of the withdrawal the Participant is fully
vested in his/her Frozen Employer Regular Profit Sharing Contribution Account, and
provided the withdrawal may not include amounts allocated to the Contribution Account
within two years prior to the withdrawal ... [check if applicable]: [NOTE: THE
CALCULATION OF THE MAXIMUM AMOUNT AVAILABLE FOR WITHDRAWAL IS SET FORTH IN PLAN SEC.
11.2(a).]
1. [ ] unless the Participant has completed five years of participation in the Plan.
[NOTE: PARTICIPATION IS MEASURED ON AN ELAPSED TIME BASIS FROM THE ENTRY
DATE.]
|
G. FROZEN EMPLOYER QUALIFIED MATCHING AND PROFIT SHARING COMPONENT
VESTING: G.1. A Participant's vested percentage in his/her Frozen Employer Qualified Matching and/or
[PLAN SEC. 10.2(e)] Qualified Profit Sharing Contribution Account will be 100% at all times.
G.2. Withdrawals are allowed from Frozen Employer Qualified Matching and/or Qualified Profit
IN-SERVICE WITHDRAWALS: Sharing Contribution Accounts ... [check one]:
[PLAN SEC. 11.2]
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after ... [check one]:
1. [ ] Normal Retirement Age (or age 59 1/2, if later).
2. [ ] age 59 1/2.
3. [ ] age ______ [60 or more].
c. [ ] for Hardship after age 59 1/2.
|
H. FROZEN EMPLOYER PENSION COMPONENT
VESTING: H.1. A Participant's vested percentage in his/her Frozen Employer Pension Contribution Account
[PLAN SEC. 10.2(e)] will be ... [check one]:
a. [ ] 100% at all times. [Skip to H.4.]
b. [ ] determined under the following schedule ... [complete as desired]:
|
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 ___%
2 ___%
3 ___% [20% or more]
4 ___% [40% or more]
5 ___% [60% or more]
6 ___% [80% or more]
7 or more 100%
|
c. [ ] determined under the following schedule ... [complete as desired]: |
YEARS OF VESTED
SERVICE PERCENTAGE
-------- ----------
0 0%
1 ___%
2 ___%
3 ___%
4 ___%
5 or more 100%
|
[NOTE: IF THE PLAN IS TOP-HEAVY, AND IF THE VESTING SCHEDULE SPECIFIED ABOVE DOES NOT
SATISFY THE VESTING REQUIREMENTS APPROPRIATE FOR A TOP-HEAVY PLAN UNDER PLAN SEC. 17.2, THE
VESTED PERCENTAGE OF THE PARTICIPANT WILL BE THE GREATER OF THE VESTED PERCENTAGE
DETERMINED UNDER THE VESTING SCHEDULE SPECIFIED ABOVE OR THE APPLICABLE VESTING SCHEDULE
SPECIFIED IN PLAN SEC. 17.2.]
TREATMENT OF FORFEITURES: H.2. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Pension
[PLAN SEC. 7.2] Contribution Accounts ... [check one]:
a. [ ] can
b. [ ] cannot
... be applied to pay administrative expenses of the Plan if so directed by the Plan
Administrator.
H.3. A Pending Allocation Account that reflects Forfeitures from Frozen Employer Pension
Contribution Accounts (to the extent not applied to pay administrative expenses if
permitted in H.2) will be ... [check one]:
a. [ ] applied as a credit against ... [check each that applies]:
1. [ ] Employer Safe-Harbor and/or Regular Matching Contributions
2. [ ] Employer Safe-Harbor and/or Regular Profit Sharing Contributions
... that are made under the Plan, as and when directed by the Lead Employer.
b. [ ] allocated as of the last day of the Plan Year as an additional ... [check one]:
1. [ ] Employer Regular Matching Contribution.
2. [ ] Employer Regular Profit Sharing Contribution. [NOTE: IF THE PLAN PROVIDES
FOR A FIXED CONTRIBUTION DETERMINED UNDER AN INTEGRATED FORMULA, THE
ALLOCATION WILL BE MADE IN PROPORTION TO PLAN
|
COMPENSATION FOR THE PLAN YEAR.]
The allocation will be made in the same manner as (and as part of) any variable
contribution, or in proportion to any fixed contribution, under the Plan. [NOTE: IF THE
PLAN PROVIDES FOR A VARIABLE CONTRIBUTION (E.G., A DISCRETIONARY CONTRIBUTION), AND A
CONTRIBUTION IS NOT MADE FOR A PLAN YEAR, THE ALLOCATION WILL BE MADE IN THE SAME
MANNER AS THE VARIABLE CONTRIBUTION WOULD HAVE BEEN ALLOCATED.]
c. [ ] allocated as of the last day of the Plan Year in proportion to Plan Compensation for
the Plan Year. The allocation will be among all eligible Participants who are eligible
to receive any Employer Contribution for the Plan Year or, if there are no such
Participants, among all eligible Participants who are eligible to make an Employee
Contribution for the Plan Year.
IN-SERVICE WITHDRAWALS: H.4. Withdrawals are allowed from Frozen Employer Pension Contribution Accounts ... [check one]:
[PLAN SEC. 11.2]
a. [ ] N/A - in-service withdrawals are not allowed.
b. [ ] for any reason after Normal Retirement Age.
|
SPECIAL TESTING RULES ADDENDUM
THIS SPECIAL TESTING RULES ADDENDUM MUST BE COMPLETED IF THIS AMENDMENT TO THE PLAN IS BEING MADE IN ORDER TO RETROACTIVELY DOCUMENT THE ADMINISTRATIVE CHOICES MADE IN RESPONSE TO CHANGES IN THE LAW RESULTING FROM THE URUGUAY ROUND AGREEMENTS ACT ("GATT"), THE UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT ("USERRA"), THE SMALL BUSINESS JOB PROTECTION ACT OF 1996 ("SBJPA"), THE TAXPAYER RELIEF ACT OF 1997 ("TRA '97"), THE INTERNAL REVENUE SERVICE RESTRUCTURING AND REFORM ACT OF 1998 OR THE COMMUNITY RENEWAL TAX RELIEF ACT OF 2000 (COLLECTIVELY REFERRED TO AS "GUST").
THE ELECTIONS SET FORTH IN THE ADOPTION AGREEMENT WILL CONTROL FOR PLAN YEARS BEGINNING ON AND AFTER THE AMENDMENT EFFECTIVE DATE OF THE ADOPTION AGREEMENT THAT IMPLEMENTS THE CHANGES REQUIRED BY GUST. THE FOLLOWING ELECTIONS RELATE ONLY TO PLAN YEARS BEGINNING PRIOR TO SUCH AMENDMENT EFFECTIVE DATE.
HIGHLY COMPENSATED EMPLOYEES
EXPLANATION: Code Section 414(q) allows two elections for purposes of determining the Highly Compensated Employees. First, a "top-paid group" election generally allows the Highly Compensated Employees (other than more than five-percent owners) to be limited to the top 20% of employees when ranked by compensation. Second, if the plan year is other than the calendar year, a "calendar year" election generally allows the Highly Compensated Employees to be determined based on calendar year compensation instead of plan year compensation. These elections are first available for plan years beginning on or after January 1, 1997.
ELECTION (1): Specify whether the "top-paid group" election did or did not apply for the specified Plan Year ... [complete]:
For the Plan Year Did the top-paid
beginning on or after group election
January 1 of the following year: apply?
-------------------------------- ------------------------
1997 [ ] did [X] did not ... apply
1998 [ ] did [X] did not ... apply
1999 [ ] did [X] did not ... apply
2000 [ ] did [X] did not ... apply
2001 [ ] did [X] did not ... apply
|
ELECTION (2): Specify whether the "calendar year" election did or did not apply for the specified Plan Year ... [complete]: [NOTE: DO NOT COMPLETE FOR ANY YEAR FOR WHICH THE CALENDAR YEAR WAS THE PLAN YEAR.]
For the Plan Year Did the calendar
beginning on or after year election
January 1 of the following year: apply?
-------------------------------- ------------------------
1997 [ ] did [X] did not ... apply
1998 [ ] did [X] did not ... apply
1999 [ ] did [X] did not ... apply
2000 [ ] did [X] did not ... apply
2001 [ ] did [X] did not ... apply
|
[NOTE: DEPENDING ON YOUR ADOPTION AGREEMENT, THE "CALENDAR YEAR" ELECTION MAY NOT BE AVAILABLE FOR PLAN YEARS BEGINNING ON OR AFTER THE AMENDMENT EFFECTIVE DATE OF YOUR NEW ADOPTION AGREEMENT.]
ACTUAL DEFERRAL/CONTRIBUTION PERCENTAGE TEST
EXPLANATION: Code Section 401(k) requires that elective deferrals annually satisfy an Actual Deferral Percentage (ADP) Test. Further, Code Section 401(m) requires that after-tax contributions and matching contributions annually satisfy an Actual Contribution Percentage (ACP) Test. Starting for the first plan year beginning on or after January 1, 1997, the ADP and ACP Tests must either be applied using a "prior year" or "current year" testing methodology.
ELECTION (1): For each specified Plan Year in which the Plan was subject to the
ADP Test, specify whether the "prior year" or "current year" testing methodology
applied for purposes of the ADP Test ... [complete]: [NOTE: IF THE PLAN WAS A
SAFE-HARBOR PLAN UNDER CODE SECTION 401(k)(12) FOR ANY PLAN YEAR BEGINNING ON OR
AFTER JANUARY 1, 1999, THE "CURRENT YEAR" METHOD MUST BE SPECIFIED FOR THAT PLAN
YEAR.]
For the Plan Year Which testing method
beginning on or after was used to apply
January 1 of the following year: the ADP Test?
-------------------------------- ----------------------------------
1997 [X] current year [ ] prior year ... method
1998 [X] current year [ ] prior year ... method
1999 [X] current year [ ] prior year ... method
2000 [X] current year [ ] prior year ... method
2001 [X] current year [ ] prior year ... method
|
ELECTION (2): For each specified Plan Year in which the Plan was subject to the
ACP Test, specify whether the "prior year" or "current year" testing methodology
applied for purposes of the ACP Test ... [complete]: [NOTE: IF THE PLAN WAS A
SAFE-HARBOR PLAN UNDER CODE SECTION 401(m)(11) FOR ANY PLAN YEAR BEGINNING ON OR
AFTER JANUARY 1, 1999, THE "CURRENT YEAR" METHOD MUST BE SPECIFIED FOR THAT PLAN
YEAR.]
For the Plan Year Which testing method
beginning on or after was used to apply
January 1 of the following year: the ACP Test?
-------------------------------- ----------------------------------
1997 [X] current year [ ] prior year ... method
1998 [X] current year [ ] prior year ... method
1999 [X] current year [ ] prior year ... method
2000 [X] current year [ ] prior year ... method
2001 [X] current year [ ] prior year ... method
|
FAMILY AGGREGATION RULES
EXPLANATION: Code Section 401(a)(17) previously applied certain "family aggregation rules" to determine the annual compensation limit of A participant. Those family aggregation rules were repealed effective as of the first plan year beginning on or after January 1, 1997. However, the Plan voluntarily may have continued to apply the family aggregation rules for this purpose until it is amended for GUST.
ELECTION: The Plan discontinued the family aggregation rules as of the Plan Year beginning on or after ... [check one]:
a. [X] January 1, 1997.
b. [ ] the Amendment Effective Date of the Adoption Agreement that implements the changes required by GUST.
c. [ ] ________ [a date between the dates specified in a. and b.]
CASH-OUT AMOUNT
EXPLANATION: Code Section 411(a)(11) previously allowed involuntary "cash-out" of amounts not in excess of $3,500. This limit was raiseD to $5,000 effective as of the first plan year beginning after August 5, 1997. However, the Plan voluntarily may have continued the $3,500 (or a lower) cash-out amount.
ELECTION: The Plan implemented the higher cash-out amount now specified in the Adoption Agreement as of...[check one]:
a. [X] the first day of the first Plan Year beginning after August 5, 1997.
b. [ ] the Amendment Effective Date of the Adoption Agreement that implements
the changes required by GUST.
c. [ ] [a date between the dates specified in a. and b.]
d. [ ] N/A - the cash-out amount has not been increased by the Amendment
Effective Date of the Adoption Agreement that implements the changes
required by GUST.
REQUIRED BEGINNING DATE
EXPLANATION: Code Section 401(a)(9) previously required that minimum distributions commence to any participant as of the April 1 of the calendar year after the calendar year in which he/she attained age 70 1/2 (even if he/she remained employed with the employer sponsoriNg the plan). This "required beginning date" was changed for participants who are still employed after age 70 1/2 (but not for more thAn five percent owners) effective January 1, 1997. However, the Plan voluntarily may have continued to determine the required beginning date based on the definition in effect prior to January 1, 1997.
ELECTION (1): The Plan implemented the new required beginning date as of ...
[check one]:
a. [X] January 1, 1997.
b. [ ] the Amendment Effective Date of the Adoption Agreement that implements
the changes required by GUST.
c. [ ]_____ [a date between the dates specified in a. and b.]
d. [ ] N/A - the new required beginning date has not been implemented by the
Amendment Effective Date of the Adoption Agreement that implements the
changes required by GUST. [NOTE: THIS OPTION IS NOT APPROPRIATE FOR PLANS
ADOPTED OR ORIGINALLY EFFECTIVE ON OR AFTER JANUARY 1, 1997.]
ELECTION (2): A Participant who attained age 70 1/2 prior to the date specified above and who has not had a Termination of Service ... [check one]: [NOTE: DO NOT COMPLETE IF d. IS SELECTED ABOVE.]
a. [X] may not elect to stop minimum distributions.
b. [ ] may elect to stop minimum distributions and recommence such
distributions by the April 1 of the calendar year after the calendar year
of his/her Termination of Service, and the new commencement date ... [check
one]:
1. [ ] will
2. [ ] will not
... be treated as a new Benefit Starting Date for purposes of the Plan. [NOTE: THE OPTION TO STOP MINIMUM DISTRIBUTIONS DOES NOT APPLY TO A PARTICIPANT WHO IS A MORE THAN FIVE-PERCENT OWNER IN THE PLAN YEAR ENDING IN THE CALENDAR YEAR IN WHICH HE/SHE ATTAINS AGE 70 1/2.]
COMBINED PLAN LIMIT
EXPLANATION: Code Section 415(e) previously imposed a "combined plan limit" if an employer maintained both a defined contribution plan anD a defined benefit plan. This limit was repealed effective for Limitation Years beginning on or after January 1, 2000. However, the Plan voluntarily may have continued to apply the limit until it is amended for GUST.
ELECTION: The Plan eliminated the combined plan limit effective as of the first Limitation Year beginning on or after ... [check one]:
a. [X] January 1, 2000.
b. [ ] the Amendment Effective Date of the Adoption Agreement that implements
the changes required by GUST.
c. [ ] ______ [a date between the dates specified in a. and b.]
d. [ ] N/A - no Controlled Group Member has maintained a defined benefit plan
after January 1, 2000, covering any Participant in this Plan.
ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001
PLAN ADDENDUM
THE ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001 ("EGTRRA") MADE A NUMBER OF CHANGES TO THE PLAN - SOME MANDATORY AND SOME OPTIONAL. THIS EGTRRA ADDENDUM INCLUDES BOTH THE REQUIRED CHANGES TO THE PLAN AND THE ELECTIVE PROVISIONS.
USE OF THIS ADDENDUM: For a Plan with an Original Effective Date prior to January 1, 2002, use this Addendum to amend the Plan for the provisions of EGTRRA. This Addendum must be adopted by the Lead Employer by the end of the Plan Year beginning in 2002. For a Plan with an Original Effective Date on or after January 1, 2002, use this Addendum to supplement the Adoption Agreement for plan options which are not reflected on the Adoption Agreement. This Addendum should be adopted with the Adoption Agreement.
PREAMBLE
1. ADOPTION AND EFFECTIVE DATE OF AMENDMENT. Except as otherwise provided, this Addendum shall be effective as of the first day of the first Plan Year beginning after December 31, 2001 (or the Plan's Original Effective Date, if later). This Addendum is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder.
2. INCONSISTENT PROVISIONS. This Addendum shall supersede the provisions of the Basic Plan Document and the Adoption Agreement to the extent those provisions are inconsistent with the provisions of this Addendum.
LEAD EMPLOYER OPTIONS
THE FOLLOWING AMENDMENTS REFLECT PROVISIONS OF EGTRRA ON WHICH CHOICES ARE AVAILABLE TO LEAD EMPLOYERS. LEAD EMPLOYERS MUST COMPLETE THE FOLLOWING ELECTIONS AND SIGN THIS ADDENDUM ON THE FINAL PAGE. IF YOU DO NOT COMPLETE THIS ADDENDUM, THE DEFAULT PROVISIONS OF THE BASIC PLAN DOCUMENT WILL CONTINUE TO APPLY.
PLAN COMPENSATION
EXPLANATION: Tax law limits the amount of a Participant's earnings that can be considered for purposes of Plan contributions. For the 2001 Plan Year, the limit was $170,000. Under EGTRRA, this limit was increased to $200,000 in 2002, and will be adjusted for inflation in future years. This increase is not mandatory and a Plan on a non-standardized adoption agreement may elect to remain at the $170,000 limit indefinitely, with no adjustments for inflation. However, a Plan must use $200,000 (or the applicable yearly limit) for the purposes of calculating Employer Safe-Harbor Matching or Safe-Harbor Profit Sharing Contributions for Plan Years beginning on or after January 1, 2002. Please note that if the Lead Employer has otherwise limited Plan Compensation to a specific dollar amount under Section E.2. of the Adoption Agreement, it may be unnecessary to complete this election.
ELECTION: PLAN COMPENSATION. Will the Plan limit Plan Compensation to $170,000 for Plan Years beginning on or after January 1, 2002? ... [check if applicable]:
a. [ ] Yes. [NOTE: NOT A VALID OPTION FOR A PLAN ON A STANDARDIZED ADOPTION AGREEMENT. THIS LIMIT WILL NOT APPLY FOR THE PURPOSES OF EMPLOYER SAFE-HARBOR MATCHING OR SAFE-HARBOR PROFIT SHARING CONTRIBUTIONS.]
[NOTE: UNLESS a. IS CHECKED ABOVE, THE PLAN COMPENSATION LIMIT WILL BE $200,000
FOR THE 2002 PLAN YEAR AND WILL CONTINUE TO BE ADJUSTED FOR COST OF LIVING
INCREASES IN FUTURE YEARS. HOWEVER, IF THE LEAD EMPLOYER HAS LIMITED PLAN
COMPENSATION UNDER SECTION E.2.d. OF THE ADOPTION AGREEMENT, THAT LIMITATION
WILL CONTINUE TO APPLY, REGARDLESS OF THE ELECTION MADE ABOVE.]
ROLLOVERS DISREGARDED IN CASH-OUTS
EXPLANATION: Effective January 1, 2002, a Plan may opt to calculate an involuntary cash-out amount by disregarding the balance of the Participant's Employee Rollover Account. If this election is made, the balance of the Participant's Employee Rollover Account will not be considered when determining if the Participant is subject to the cash-out. For example, a Participant with an Employee Rollover Account balance of $10,000 may be cashed-out of the Plan, provided the balance of his/her other Plan Accounts is under the cash-out amount then in effect for the Plan.
ELECTION: TREATMENT OF EMPLOYEE ROLLOVER CONTRIBUTIONS IN THE APPLICATION OF THE CASH-OUT PROVISION. Does the Plan exclude Employee Rollover Contributions (and earnings allocable thereto) in determining whether the Participant's Benefit is
subject to involuntary cash-out?...[check if applicable]:
a. [ ] Yes. This rule applies to all...[complete if applicable]:
1. [ ] distributions made after ________ [enter a date no earlier
than December 31, 2001]
2. [ ] Participants who separated from service after ________
[enter a date; date may be earlier than December 31, 2001]
[NOTE: EMPLOYEE ROLLOVER ACCOUNT BALANCES WILL BE CONSIDERED IN DETERMINING
CASH-OUTS UNLESS a. IS CHECKED ABOVE. IF a. IS CHECKED, BUT NEITHER 1. NOR 2. IS
COMPLETED, THE NEW RULE WILL APPLY AS OF THE FIRST DAY OF THE PLAN YEAR IN WHICH
THIS ADDENDUM IS SIGNED.]
ROLLOVERS
EXPLANATION: A Plan that accepts rollover contributions will accept rollovers from qualified plans and conduit IRAs. Starting with the first Plan Year beginning after December 31, 2001, a Plan may accept rollover contributions and direct rollovers from additional retirement savings vehicles - 403(b) plans, certain 457 plans, non-conduit IRAs (but only those amounts attributable to pre-tax or deductible contributions to the IRA), and rollovers of after-tax contributions to a retirement plan. If the Plan elects to receive after-tax contributions, the Plan must separately account for such amounts in order to track basis. In addition, the basis rules are different for certain after-tax contributions, depending when made.
ELECTION: ADDITIONAL ROLLOVER SOURCES. Specify the additional sources from which the Plan will accept rollovers ... [check each of a. through d. that applies]:
a. [ ] Annuity contracts described in Code Section 403(b).
b. [ ] Code Section 457(b) plans maintained by a state, political subdivision
of a state, or any agency or instrumentality of A state or political
subdivision of a state.
c. [ ] IRAs described in Code Section 408(a) or (b) (to the extent the
distribution that is eligible to be rolled over is otherwise
includible in gross income).
d. [ ] After-tax contributions to Code Section 401(a) or 403(a) plan
(excluding after-tax IRA and Roth IRA contributions).
[NOTE: PLANS THAT ELECTED TO ACCEPT ROLLOVER CONTRIBUTIONS IN THE ADOPTION
AGREEMENT WILL AUTOMATICALLY ACCEPT ROLLOVER CONTRIBUTIONS FROM QUALIFIED PLANS
AND CONDUIT IRAs. IF YOU DO NOT COMPLETE THIS ELECTION, ROLLOVER CONTRIBUTIONS
WILL NOT BE ACCEPTED FROM THE NEW SOURCES DESCRIBED IN a. THROUGH d. ABOVE.]
Special Effective Date [complete if any of a. through d. above are checked]:
This provision will be effective as of _____ [month, day, year]. [NOTE: IF THE
EFFECTIVE DATE IS NOT SPECIFIED, THIS PROVISION WILL BE EFFECTIVE ON THE FIRST
DAY OF THE PLAN YEAR IN WHICH THIS ADDENDUM IS SIGNED.]
SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION
EXPLANATION: Effective January 1, 2002, Plans may impose a 6 month pre-tax and after-tax deferral suspension period following a hardship withdrawal made after December 31, 2001. (Prior to January 1, 2002, the Plan imposed a twelve month suspension period following a hardship.) This change is mandatory for safe-harbor plans within the meaning of Code Section 401(k)(12) and 401(m)(11) (planS that avoid ADP and ACP testing by making 100% vested matching or profit sharing contributions to the Plan under Article H. of the Adoption Agreement).
ELECTION 1: Will the Plan impose a 6 month suspension period following a hardship withdrawal made after December 31, 2001? ... [check if applicable]:
a. [X] Yes.
[NOTE: THE SUSPENSION PERIOD WILL BE 12 MONTHS UNLESS a. IS CHECKED ABOVE.
HOWEVER, IF THIS PLAN IS A SAFE-HARBOR PLAN UNDER ARTICLE H. OF THE ADOPTION
AGREEMENT, THE SUSPENSION PERIOD WILL BE 6 MONTHS REGARDLESS OF YOUR ELECTION
ABOVE.]
EXPLANATION: Plans may also limit the suspension period for a hardship withdrawal taken in 2001 to the later of 6 months after receipt of the distribution or January 1, 2002. A Plan with an Original Effective Date on or after January 1, 2002, should not complete this election.
ELECTION 2: Will the Plan shorten the suspension period imposed following a hardship withdrawal made in 2001 to the later of 6 months after the receipt of the hardship distribution or January 1, 2002? ...[check if applicable]:
a. [ ] Yes.
[NOTE: THE SUSPENSION PERIOD FOLLOWING HARDSHIP WITHDRAWALS MADE IN 2001 WILL BE 12 MONTHS UNLESS a. IS CHECKED ABOVE.]
VESTING SCHEDULE
EXPLANATION: For Plan Years beginning on or after January 1, 2002, Plans are
required to vest Participants in their Matching Contributions at least as
quickly as a six-year graded schedule or a three-year cliff schedule. This
change is required for all Matching Contributions on Elective Deferrals made
after January 1, 2002. For a Plan in existence prior to 2002, the vesting
schedule elected below (if different) replaces the vesting schedule elected in
Section I.11. of the Adoption Agreement for all Matching Contributions made for
Plan Years beginning on or after January 1, 2002. For a Plan with an Original
Effective Date on or after January 1, 2002, the vesting schedule elected below
applies to all Matching Contributions made to the Plan and Section I.11. of the
Adoption Agreement does not apply.
ELECTION 1: VESTING SCHEDULE FOR EMPLOYER MATCHING CONTRIBUTIONS. A Participant's vested percentage in his/her Employer Regular Matching Contributions made for Plan Years beginning on or after January 1, 2002 will be ... [check one]:
a. [ ] 100% at all times.
b. [ ] determined under the following schedule ... [complete as desired]:
Years of Service Vested Percentage
---------------- -----------------
0 0%
1 %
2 % [20% or more]
3 % [40% or more]
4 % [60% or more]
5 % [80% or more]
6 or more 100%
|
c. [ ] determined under the following schedule ... [complete as desired]:
Years of Service Vested Percentage
---------------- -----------------
0 0%
1 %
2 %
3 100%
|
d. [ ] vesting schedule in Section I.11. of the Adoption Agreement complies with (a), (b) or (c). [NOTE: NOT A VALID OPTION FOR A PLAN WITH AN ORIGINAL EFFECTIVE DATE ON OR AFTER JANUARY 1, 2002.]
[NOTE: IF THE PLAN MATCHES EMPLOYEE CATCH-UP CONTRIBUTIONS, THOSE MATCHING
CONTRIBUTIONS WILL ALSO VEST ON THE SCHEDULE LISTED ABOVE. IF THE LEAD EMPLOYER
DOES NOT COMPLETE THIS ELECTION AND THE PLAN'S VESTING SCHEDULE DOES NOT SATISFY
THE NEW REQUIREMENTS, A GRADED VESTING SCHEDULE WILL BE DEEMED TO BE A SIX YEAR
GRADED SCHEDULE (20% PER YEAR, STARTING AT TWO YEARS OF SERVICE) AND A CLIFF
VESTING SCHEDULE WILL BE DEEMED TO BE A THREE YEAR CLIFF SCHEDULE (WITH FULL
VESTING AT 3 YEARS OF SERVICE).]
EXPLANATION: Plans may also apply the vesting schedule elected above to past Employer Regular Matching Contributions and to Employer Regular Profit Sharing Contributions for all Active Participants. Plans with an Original Effective Date on or after January 1, 2002, should not complete Election 2. For a Plan with an Original Effective Date prior to January 1, 2002, the Elections below will replace the applicable elections in the Adoption Agreement, if different, including Sections I.11. and J.9. of the Adoption Agreement. If the revised schedule is not applied to past matching contributions, a separate source will be required to track the vested percentage of the pre-2002 and post-2001 Matching Contributions.
ELECTION 2: OTHER CONTRIBUTIONS. Specify the other contributions (which are currently subject to a vesting schedule), if any, to which the revised vesting schedule will apply...[check a., or each of b. and c. that applies]:
a. [ ] N/A - the revised vesting schedule only applies to Employer Regular
Matching Contributions made for Plan Years beginning on or after
January 1, 2002.
b. [ ] all Employer Regular Matching Contributions, whenever made.
c. [ ] also to Employer Regular Profit Sharing Contributions ... [check one]:
1. [ ] whenever made.
2. [ ] made for Plan Years beginning on or after January 1, 2002.
[NOTE: UNLESS b. OR c. IS CHECKED ABOVE, THE REVISED VESTING SCHEDULE WILL ONLY
APPLY TO MATCHING CONTRIBUTIONS MADE FOR PLAN YEARS BEGINNING ON OR AFTER
JANUARY 1, 2002. IF b. OR c. IS CHECKED ABOVE, THE REVISED VESTING SCHEDULE WILL
ONLY APPLY TO THE SPECIFIED ACCOUNTS OF PARTICIPANTS WHO ARE ACTIVE PARTICIPANTS
AT SOME TIME DURING THE 2002 PLAN YEAR. IF VESTING OCCURS AT A SLOWER RATE UNDER
THE REVISED SCHEDULE, THE ELECTION PROVISIONS OF PLAN SECTION 10.2(k) WILL
APPLY.]
EMPLOYEE CATCH-UP CONTRIBUTIONS
EXPLANATION: Effective January 1, 2002, a Plan may now allow Participants age 50 or over (plus those projected to attain age 50) in the applicable year to make additional pre-tax contributions ("Employee Catch-up Contributions") to the Plan when the Participant's pre-tax contributions are otherwise limited under the Plan or by law. However, if a Plan allows for Employee Catch-up Contributions, all plans in the Controlled Group that allow for pre-tax contributions must generally provide Participants with the same "effective opportunity" to make Employee Catch-up Contributions.
ELECTION 1: EMPLOYEE CATCH-UP CONTRIBUTIONS. Will Employee Catch-up
Contributions be allowed under this Plan? ... [check one]:
a. [ ] No.
b. [X] Yes. This provision will be effective as of ... [check one]:
1. [X] January 1, 2002.
2. [ ] The first day of the Plan Year beginning __ [specify date no
earlier than January 1, 2002].
3. [ ] Other __ [specify date no earlier than January 1, 2002].
[NOTE: THE PLAN WILL NOT ACCEPT EMPLOYEE CATCH-UP CONTRIBUTIONS UNLESS b. IS
CHECKED ABOVE. EMPLOYEE CATCH-UP CONTRIBUTIONS WILL GENERALLY BE SUBJECT TO THE
SAME ADMINISTRATIVE OPTIONS AND REQUIREMENTS THAT APPLY TO EMPLOYEE PRE-TAX
CONTRIBUTIONS UNDER THE PLAN (E.G., THE DATES AS OF WHICH A PAY REDUCTION
AGREEMENT MAY BE MODIFIED, ETC.).]
ELECTION 2: MAXIMUM CONTRIBUTIONS. Employee Catch-up Contributions will be limited to ...[complete if applicable]:
a. [ ] A maximum of ______ % of Plan Compensation each payroll period.
[NOTE: IN ADDITION TO ANY PERCENTAGE LIMIT ON CONTRIBUTIONS ELECTED ABOVE, EMPLOYEE CATCH-UP CONTRIBUTIONS WILL BE LIMITED TO THE DOLLAR AMOUNT FOR THE APPLICABLE YEAR UNDER THE TAX LAWS.]
EMPLOYER CATCH-UP MATCHING CONTRIBUTIONS
EXPLANATION: Plans that allow Employee Catch-up Contributions may decide to match those contributions. While Employee Catch-up Contributions are generally exempt from the Plan's testing requirements, including the Actual Deferral Percentage Test, any matching contributions made on these Employee Catch-up Contributions will be considered in the Plan's testing. Employer Catch-up Matching Contributions will be allocated in the same manner and under the same formula as other Employer Regular Matching Contributions (or Employer Safe-Harbor Matching Contributions) made under the Plan.
ELECTION: EMPLOYER CATCH-UP MATCHING CONTRIBUTIONS. Will the Plan match Employee Catch-up Contributions?...[check one]:
a. [X] No.
b. [ ] Yes. This provision will be effective as of ... [check one]:
1. [ ] January 1, 2002.
2. [ ] The first day of the Plan Year beginning ________ [specify
date no earlier than January 1, 2002].
3. [ ] Other ________ [specify date no earlier than January 1,
2002].
[NOTE: EMPLOYER CATCH-UP MATCHING CONTRIBUTIONS WILL NOT BE MADE UNLESS b. IS
CHECKED ABOVE. EMPLOYER CATCH-UP MATCHING CONTRIBUTIONS WILL BE DETERMINED UNDER
THE SAME FORMULA USED FOR EMPLOYER REGULAR MATCHING CONTRIBUTIONS (OR EMPLOYER
SAFE-HARBOR MATCHING CONTRIBUTIONS).]
MANDATORY PLAN AMENDMENTS
THE FOLLOWING AMENDMENTS ARE MANDATORY CHANGES TO YOUR BASIC PLAN DOCUMENT AS A RESULT OF EGTRRA. ALTHOUGH YOU DO NOT HAVE TO MAKE ANY CHOICES ON THESE PROVISIONS, YOU SHOULD READ THROUGH THE CHANGES TO SEE HOW THEY AFFECT YOUR PLAN.
SECTION 2.56(f) - PLAN COMPENSATION
Effective January 1, 2002, Plan Section 2.56(f) is amended to add the following sentence at the end of the subsection:
If so specified in the Adoption Agreement (or addendum thereto), for Plan Years beginning on or after January 1, 2002, Plan Compensation will be limited to $170,000, the Code Section 401(a)(17) limit in effect for 2001.
SECTION 2.70 - TERMINATION OF SERVICE
Effective for distributions made after December 31, 2001, Plan Section 2.70 is amended to replace the words "separation from service" with the words "severance from employment". In addition, the following sentence is added to the end of the section:
The "severance from employment" standard applies to all distributions made after December 31, 2001, regardless of when the severance from employment occurred.
SECTION 4.1 - PRE-TAX CONTRIBUTIONS
Effective January 1, 2002, Plan Section 4.1(e) is amended to add the following to the end of the subsection:
However, the limit in this subsection does not apply to any contributions permitted by the Plan and specified in the Adoption Agreement (or addendum thereto) which are subject to Code Section 414(v).
Effective January 1, 2002, Plan Section 4.1 is amended to add a new subsection
(i) to read as follows:
(i) Employee Catch-up Contributions. If so specified in the Adoption
Agreement (or addendum thereto), an eligible Active Participant may
elect to have his/her Plan Compensation further reduced to make
additional pre-tax contributions to the Plan, as provided in Code
Section 414(v) and regulations thereunder. Such additional
contributions are Employee Catch-up Contributions. To be eligible to
make Employee Catch-up Contributions, the Active Participant must be
otherwise eligible to make Employee Pre-Tax Contributions and must be
age 50 or older. For purposes of this rule, a Participant who is
projected to attain age 50 before the end of a calendar year is deemed
to be age 50 as of January 1 of that year.
Except to the extent required by applicable regulations, such Employee
Catch-up Contributions shall not be taken into account for purposes of
the provisions of the Plan implementing the required limitations of
Code Section 401(a)(30) and 415(c). The Plan shall not be treated as
failing to satisfy the provisions of the Plan implementing Code
Section 401(k)(3), 401(a)(4), 401(k)(3), 401(k)(11), 410(b) or 416, as
applicable, by reason of allowing such Employee Catch-up
Contributions.
Employee Catch-up Contributions may not exceed the limit in effect
under Code Section 414(v) for such taxable year. All Catch-up
Contributions made by the Participant to any qualified plan or Code
Section 403(b), 408(k) or 408(p) plan sponsored by a Controlled Group
Member will be aggregated for purposes of this limit.
Employee Catch-up Contributions under the Plan will be administered in accordance with Code Section 414(v) and any applicable regulations or other IRS guidance thereunder.
Employee Catch-up Contributions will be subject to the same administrative options and requirements that apply to Employee Pre-Tax Contributions, as specified in the Adoption Agreement or other Plan procedures.
SECTION 4.5 - ROLLOVER CONTRIBUTIONS
Effective January 1, 2002, Plan Section 4.5 is amended to replace the second paragraph with the following:
An "Employee Rollover Contribution" means a rollover contribution or rollover amount from another qualified plan or "conduit" individual retirement account described in Code Section 401(a)(31), 402(c), 403(a)(4) or 408(d)(3), or an elective transfer described in Treas. Reg. Section 1.411(d)-4(Q&A-3), as allowed under the Code as in effect on December 31, 2001. As of the first day of the Plan Year beginning in 2002, or any later date that may be indicated in the Adoption Agreement (or addendum hereto), "Employee Rollover Contribution" also includes rollover contributions from the sources, if any, specified in the Adoption Agreement (or addendum thereto).
SECTION 5.2 - REGULAR MATCHING CONTRIBUTIONS
Effective January 1, 2002, Plan Section 5.2 is amended to add a new subsection
(h) to read as follows:
(h) Matching Employee Catch-up Contributions. If so specified in the Adoption Agreement (or addendum thereto), the Employer will make Employer Catch-up Matching Contributions on the Employee Catch-up Contributions made under the Plan. Employer Catch-up Matching Contributions will be allocated in the same manner as Employer Regular Matching Contributions (or Employer Safe-Harbor Matching Contributions). Any such Employer Catch-up Matching Contributions under the Plan will be administered in accordance with Code Section 414(v) and any applicable regulations or other IRS guidance thereunder.
SECTION 10.2 - VESTING SCHEDULE FOR EMPLOYER REGULAR MATCHING CONTRIBUTIONS
Effective January 1, 2002, Plan Section 10.2 is amended to add a new subsection
(n) to read as follows:
(n) Vesting of Employer Matching Contributions. Notwithstanding any
provision of the Plan to the contrary, all Employer Regular and
Catch-up Matching Contributions made for Plan Years beginning on or
after January 1, 2002, shall vest as specified in the Adoption
Agreement (or addendum thereto), provided such vesting schedule
satisfies the requirements of Code Section 411(a). If the specified
vesting schedule does not satisfy the requirements of Code Section
411(a), a graded vesting schedule will be deemed to be a six year
graded schedule (20% per year, starting at 2 years of Service) and a
cliff vesting schedule will be deemed to be a three year cliff
schedule (with full vesting at 3 years of Service).
If and to the extent so specified in the Adoption Agreement (or addendum thereto), the vesting schedule required by Code Section 411(a) will be applied to other Contribution Accounts, including Employer Regular Matching Contributions made for Plan Years beginning prior to January 1, 2002, and Employer Regular Profit Sharing Contributions.
SECTION 11.2(b) - SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION
Effective January 1, 2002, Plan Section 11.2(b)(3)(B)(iii) is amended to add the following paragraph:
If so specified in the Adoption Agreement (or addendum thereto), for
withdrawals made on or after January 1, 2002, the Participant's Pre-Tax and
After-Tax Contributions, Elective Deferrals and other voluntary
contributions will be suspended for a period of six months after such
withdrawal. For Plans that are safe-harbor plans within the meaning of Code
Section 401(k)(12) or 401(m)(11), the suspension period is six months after
such withdrawal. For withdrawals made in 2001, the suspension period will
be the later of 6 months after the receipt of the distribution or January
1, 2002, if so specified in the Adoption Agreement (or addendum thereto).
Effective January 1, 2002, Plan Section 11.2(b)(3)(B)(iv) is amended to add the following paragraph:
Effective January 1, 2002, this paragraph (iv) shall cease to apply to this Plan.
SECTION 11.3(g) - PLAN LOANS FOR OWNER-EMPLOYEES AND SHAREHOLDER EMPLOYEES
Plan Section 11.3(g), prohibiting Plan loans to any owner-employee or shareholder-employee, shall cease to apply effective for Plan loans made after December 31, 2001.
SECTION 12.4 - CASH-OUT OF SMALL BENEFITS
Effective January 1, 2002, Plan Section 12.4 is amended to add the following paragraph:
If so specified in the Adoption Agreement (or addendum thereto), Benefits attributable to Employee Rollover Contributions, and earnings thereon, shall be disregarded in determining the cash-out amount.
SECTION 12.8 - DIRECT ROLLOVERS
Effective for distributions made after December 31, 2001, Plan Section 12.8(c)(1) is amended to replace subsections (C) and (D) as follows:
(C) Any distribution to the extent such a distribution is attributable to a Hardship.
(D) Any portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
Effective for distributions made after December 31, 2001, Plan Section 12.8(c)(3) is amended to read as follows:
(3) "Eligible Retirement Plan" - means an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a), a qualified trust described in Code Section 401(a), an
annuity contract described in Code Section 403(b), an eligible plan
under Code Section 457(b) which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to separately
account for amounts transferred into such plan from this Plan, or any
other plan
or account allowed under future legislation or regulation that accepts
the Eligible Rollover Distribution. The definition of Eligible
Retirement Plan also applies in the case of a distribution to a
surviving spouse, or to a spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Code
Section 414(p).
SECTION 12.17 - SPECIAL DISTRIBUTION PROVISIONS
Effective January 1, 2002, Plan Section 12.17 is amended to add the following sentence to the end of the section:
Effective January 1, 2002, subsections (b) and (c) shall cease to apply to this Plan.
ARTICLE XVII - TOP-HEAVY RULES
For Plan Years beginning after December 31, 2001, Plan Section 17.1(a) is amended to add the following paragraph:
As of the first day of the Plan Year beginning on or after January 1, 2002, Employer Regular and Catch-up Matching Contributions under this Plan (and employer matching contributions under any other plan whose contributions are to be used to satisfy the requirements of this section) may be used to satisfy the minimum amount of employer contributions which must be allocated under this section. Matching Contributions that are used to satisfy the requirements of this section shall be treated as Employer Regular and Catch-up Matching Contributions for purposes of the Actual Contribution Percentage Test and other requirements of Code Section 401(m).
For Plan Years beginning after December 31, 2001, Plan Section 17.1(b) is amended to add a new paragraph (7) to read as follows:
(7) As of the first day of the Plan Year beginning on or after January 1, 2002, this Article XVII shall not apply in any year in which the Plan consists solely of a cash or deferred arrangement which meets the requirements of Code Section 401(k)(12) and Safe-Harbor Matching Contributions with respect to which the requirements of Code Section 401(m)(11) are met.
For Plan Years beginning after December 31, 2001, Plan Section 17.4(b) is amended to read as follows:
(b) Key Employee - means any individual defined as such in Code Section
416(i); generally, any Employee or former Employee (including the
Beneficiary of a deceased Employee or former Employee) who at any time
during the Plan Year that includes the Determination Date was:
(1) An officer having Top-Heavy Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002).
(2) A five-percent owner.
(3) A one-percent owner who has Top-Heavy Compensation of more than $150,000.
The determination of who is a Key Employee will be made in accordance with Code Section 416(i)(1) and the applicable regulations and other guidance of general applicability issued thereunder.
For Plan Years beginning after December 31, 2001, Plan Section 17.4(l) is amended to add a new paragraph (5) to read as follows:
(5) As of the first day of the Plan Year beginning on or after January 1,
2002, any distribution due to severancen from employment, death or
disability which was made prior to the one-year period ending on the
Determination Date shall be disregarded for purposes of applying the
top-heavy rules. Paragraphs (1) and (2) of this subsection shall also
apply to distributions under a terminated plan which, had it not been
terminated, would have been aggregated with this Plan under Code
Section 416(a)(2)(A)(i). If an individual has not performed services
for the employer at any time during the one-year period ending on the
Determination Date, any account balance or accrued benefit for such
individual shall not be taken into account.
SECTION 18.4(a) - ANNUAL ADDITIONS
Effective January 1, 2002, Plan Section 18.4(a) is amended to add the following paragraph:
Annual Additions do not include any Employee Rollover Contribution made to
this Plan. For Plan Years commencing in 2002 or later, any contributions to
the Plan determined to be Employee Catch-up Contributions under Code
Section 414(v) are not Annual Additions.
SECTION 18.4(j) - MAXIMUM PERMISSIBLE AMOUNT
For Limitation Years beginning after December 31, 2001, Plan Section 18.4(j) is amended to read as follows:
(j) Maximum Permissible Amount - means the maximum Annual Addition that may be contributed or allocated to a Participant's Contribution Accounts under the Plan for any Limitation Year, which (except to the extent permitted under Code Section 414(v), if applicable) will not exceed the lesser of:
(1) $40,000, (as adjusted for increases in the cost-of-living under Code Section 415(d)).
If a short Limitation Year is created because of an amendment changing the Limitation Year to a different twelve-consecutive-month period, the dollar limit above will be multiplied by the number of months (full months) in the short Limitation Year and divided by 12.
(2) 100% of the Participant's 415 Compensation for the Limitation Year.
The limitation referred to in paragraph (2) will not apply to any
contribution for medical benefits (within the meaning of Code
Section 401(h) or 419A(f)(2)) which is otherwise treated as an
Annual Addition under Code Section 415(l)(1) or 419A(d)(2).
SECTION 19.4 - MULTIPLE USE TEST
Effective January 1, 2002, Plan Section 19.4 is amended to add a new subsection
(c) to read as follows:
(c) This section will not apply to any Plan Years beginning on or after January 1, 2002.
SECTION 19.6(h) - EXCESS DEFERRALS
Effective January 1, 2002, Plan Section 19.6(h) is amended to add the following sentence to the end of the subsection:
However, in determining Excess Deferrals, any contributions to the Plan subject to Code Section 414(v) shall be disregarded.
LEAD EMPLOYER SIGNATURE
IN WITNESS WHEREOF, the Lead Employer has caused this EGTRRA Addendum to be adopted effective as of the date specified below.
YOU SHOULD CONSULT WITH AN ATTORNEY OR OTHER INDEPENDENT QUALIFIED ADVISOR AS TO THE LEGAL AND TAX EFFECT OF ADOPTING THIS ADDENDUM.
Date signed: _______________________________ Lead Employer: Range Resources
Corporation.
By: ______________________________
Name [print]: _______________
Its [title]: ________________
|
EXHIBIT 10.15
RANGE RESOURCES CORPORATION
(a Delaware Corporation)
AMENDED AND RESTATED
CHANGE IN CONTROL PLAN
This amended and restated Change in Control Plan ("Plan") dated September 15, 1998 is adopted by Range Resources Corporation, a Delaware corporation, having its principal executive offices at 500 Throckmorton Street, Ft. Worth, Texas 76102 (together with all of its Subsidiaries, the "Company"), for the benefit of its employees pursuant to resolutions duly adopted by the Compensation Committee of the Board of Directors of the Company ("Board") on September 15, 1998.
WHEREAS, the Board recognizes that the possibility of a Change in Control (as hereinafter defined) exists and that the threat of or occurrence of a Change in Control (as hereinafter defined) can result in significant distractions to the Company's employees; and
WHEREAS, the Company considers the continued services of its employees to be in the best interest of the Company and its stockholders and desires to assure the continued services of its employees on behalf of the Company in an objective and impartial basis and without distraction or conflict of interest in the event of an attempt to obtain control of the Company;
NOW THEREFORE, the Company hereby adopts this Plan which shall be for the benefit of its employees.
1. Certain Definitions
"Base Salary" with respect to all Employees, means that portion of such Employee's annual compensation which is designated by the Company as such Employee's cash salary for such year, including all interim increases therein during such year, plus all amounts accrued by the Company with respect to such year for 401(k) contributions and all amounts allocated to the Employee for such year as deferred compensation (including amounts subject to future vesting requirements and amounts to be contributed in the future by the Company as matching amounts with respect to such year). Base Salary shall not include any Bonus.
"Bonus" with respect to all Employees, means the amount of such Employee's annual compensation, whether paid directly to the Employee or designated by the Company as a current or future obligation of the Company under a deferred compensation agreement, which is designated by the Company as "bonus" compensation. All amounts designated as a Bonus for any year shall be included, even if some portion thereof is not paid or "vested" until some future date.
"Cause" means (a) an act or acts of dishonesty by an Employee constituting a felony under applicable law and/or (b) any act resulting or intending to result directly or indirectly in gain to or personal enrichment of the Employee at the Company's expense. Notwithstanding the foregoing, the Employee shall not be deemed to have been terminated for cause unless and until there shall have been delivered to the Employee a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the Board called and held for the purpose (after reasonable notice and opportunity for the Employee, together with counsel, to be heard before the Board), finding that in the good faith opinion of the Board the Employee was guilty of conduct set forth above.
"Change of Control" means:
a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 25% or more of either (i) the then outstanding shares of Common Stock (the "Outstanding Company Common Stock") or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company (excluding an acquisition by virtue of the exercise of a conversion privilege), (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization, merger or consolidation, the conditions described in clauses (i), (ii) and (iii) of subsection (c) of this definition are satisfied; or
b) Individuals who, as of the date hereof, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
c) Approval by the stockholders of the Company of a reorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than 60% of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any employee benefit plan (or related trust) of the Company or such corporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, 25% or more of the Outstanding Company Common Stock or Outstanding Voting Securities, as the case may be) beneficially owns, directly or indirectly, 25% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidation; or
d) Approval by the stockholders of the Company of (i) a complete liquidation or dissolution of the Company or (ii) the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to which following such sale or other disposition, (A) more than 60% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding the Company and any employee benefit plan (or related trust) of the company or such corporation and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 25% or more of the Outstanding Company Common Stock or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 25% or more of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (C) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Company.
"Common Stock" means the Company's common stock, $.01 par value per share.
"Employee" means any person who is a Regular Employee or an Executive.
"Executive" means any person who is an executive officer of the Company on the day immediately prior to a Change in Control, including the Company's Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer, Treasurer, and all of the Company's Vice Presidents and any other person listed on Schedule I attached hereto, as such schedule may be amended or modified from time to time.
"Executive Payment" with respect to any Executive means, an amount equal to (i) an amount equal to such Executive's Base Salary for the year in which the Executive Payment is to be made plus (ii) an amount equal to one-half of such Executive's aggregate Bonuses for each of the two years prior thereto.
"Material Change" means, without the Employee's written consent, (i) a change in status, position or responsibilities which, in the Employee's reasonable judgment, does not represent a promotion from existing status, position or responsibilities as in effect immediately prior to the Change in Control; the assignment of any duties or responsibilities which, in the Employee's reasonable judgment, are inconsistent with such status, position or responsibilities; or any removal from or failure to re-appoint or reelect the Employee to any of such positions, except in connection with the termination for total and permanent disability, death or Cause or by him other than for good reason; (ii) a reduction by the Company in the Employee's Base Salary as in effect on the date of the Change in Control or the Company's failure to increase the Employee's Base Salary after a Change In Control in an amount which at least equals, on a percentage basis, the average percentage increase in Base Salary for all other executive and senior officers of the Company having a Base Salary within $25,000 of the Employee's Base Salary as of the Change of Control; (iii) the relocation of the Employee by the Company to any place other than the location at which the Employee performed duties prior to a Change in Control, except for required travel on the Company's business to an extent substantially consistent with business travel obligations at the time of a Change in Control; (iv) the failure of the Company to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, including but not limited to the Company's stock option and restricted stock plans, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan), evidenced by the Employee's written consent, has been made with respect to such plan in connection with the change in control, or the failure by the Company to continue the Employee's participation therein, or any action by the Company which would directly or indirectly materially reduce participation therein; (v) the failure by the Company to continue to provide the Employee with benefits substantially similar to those enjoyed or entitled under any of the Company's pension, profit sharing, life insurance, medical, dental, health and accident, or disability plans
at the time of a change in control, the taking of any action by the Company which would directly or indirectly materially reduce any of such benefits or deprive the Employee of any material fringe benefit enjoyed or entitled to at the time of the Change in Control, or the failure by the Company to provide the number of paid vacation and sick leave days to which the Employee is entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect on the date hereof; (vi) the failure of the Company to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Plan; (vii) any purported termination of the Employee's employment which is not effected pursuant to this Plan; or (viii) any request by the Company that the Employee participate in an unlawful act or take any action constituting a breach of the Employee's professional standard of conduct.
"Notice of Termination" means a notice which informs the Employee of the effective date of the termination of Employee's employment.
"Payment" means the Regular Employee Payment and the Executive Payment.
"Regular Employee" means any person who is an employee of the Company, other than any employee who is an Executive, on the day immediately prior to a Change in Control.
"Regular Employee Payment" with respect to any Regular Employee, means an amount equal to (i) one-half of such Regular Employee's Base Salary for the year in which the Regular Employee Payment is to be made plus (ii) one-fourth of the aggregate of such Regular Employee's Bonuses for the two years prior thereto.
2. Immediate Vesting
a) Upon a Change in Control, all non-vested securities of the Company held by Employees, including, without limitation, all non-vested options to purchase Common Stock held by such Employees and all non-vested Common Stock held for the benefit of Employees under the Company's deferred compensation plan shall automatically vest.
b) Upon a Change in Control, all non-vested rights under, or in connection with, all of the Company's benefit plans, including, without limitation, the Company's 401(k) plan, bonus plan (including cash and/or stock) and deferred compensation plan shall automatically vest.
c) Upon a Change in Control, all non-vested securities of the Company issued pursuant to the Company's 1994 Outside Directors Stock Option Plan, as amended, including, without limitation, all non-vested options to purchase Common Stock, shall automatically vest.
3. Payments
a) If any Executive is terminated without Cause within one year of a Change in Control, or if any Executive resigns within 30 days of a Material Change occurring within one year of a Change in Control (which Material Change shall be deemed to be constructive termination), then such Executive shall receive such Executive's Executive Payment.
b) If any Regular Employee is terminated without Cause within one year of a Change in Control, then such Regular Employee shall receive such Regular Employee's Regular Employee Payment.
c) Notwithstanding the foregoing, the amount of the Payment shall be dependent upon the duration of employment with the Company, with each Employee receiving one third of
the Payment if such Employee has been employed by the Company for less than two years, two thirds of the Payment if such Employee has been employed by the Company for between two and three years and the full amount of the Payment if such Employee has been employed by the Company for at least three years.
d) If any Employee is entitled to receive a Payment pursuant to this Section 3, the Company agrees to pay such Payment to the Employee as termination compensation in a lump-sum payment within five (5) calendar days of the termination of the Employee's employment or, with respect to Executive's, within five (5) calendar days of such Executive's resignation due to a Material Change.
4. Additional Provisions
a) Enforcement of Plan. The Company is aware that upon the occurrence of a Change in Control the Board or a shareholder of the Company may then cause or attempt to cause the Company to refuse to comply with its obligations under this Plan, or may cause or attempt to cause the Company to institute, or may institute litigation seeking to have this Plan declared unenforceable, or may make or attempt to take other action to deny the Employees the benefits intended under this Plan. In these circumstances, the purpose of this Plan could be frustrated. It is the intent of the Company that Employees not be required to incur the expenses associated with the enforcement of any rights under this Plan by litigation or other legal action, nor be bound to negotiate any settlement of any rights hereunder, because the cost and expense of such legal action or settlement would substantially detract from the benefits intended to be extended to Employees hereunder. Accordingly, if following a Change in Control it should appear to any Employee that the Company has failed to comply with any of its obligations under this Plan or in the event that the Company or any other person takes any action to declare this Plan void or unenforceable, or institutes any litigation or other legal action designed to deny or diminish recovery by any Employee of the benefits entitled to be provided to such Employee hereunder, and that Employee has complied with all obligations under this Plan, the Company irrevocably authorizes such Employee from time to time to retain counsel of the Employee's choice, at the expense of the Company as provided in this Section 5(a), to represent the Employee in connection with the initiation or defense of any litigation or other legal action, whether such action is by or against the Company or any Director, officer, shareholder, or other person affiliated with the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to the Employee entering into an attorney-client relationship with such counsel, and in that connection the Company and the Employee agree that a confidential relationship shall exist between the Employee and such counsel. The reasonable fees and expenses of counsel selected from time to time by any Employee as hereinabove provided shall be paid or reimbursed to such Employee by the Company on a regular, periodic basis upon presentation by such Employee of a statement or statements prepared by such counsel in accordance with its customary practices, up to a maximum aggregate amount of $75,000 in each instance. Any legal expenses incurred by the Company by reason of any dispute between the Company and any Employee as to enforceability of or the terms contained in this Plan, notwithstanding the outcome of any such dispute, shall be the sole responsibility of the Company, and the Company shall not take any action to seek reimbursement from the Employee for such expenses.
b) Severance Pay; No Duty to Mitigate. The amounts payable to Employees under this Plan shall not be treated as damages but as severance compensation to which Employees are entitled by reason of termination of employment in the circumstances contemplated by this Plan. The Company shall not be entitled to set off against the amounts payable to Employees of any amounts earned by any Employee in other employment after termination of employment with the Company, or any amounts which might have been earned by any Employee in other employment had other such employment been sought.
c) Notice of Termination. Subsequent to any Change in Control, termination by the Company shall be communicated by written Notice of Termination to the terminated Employee in accordance with Section 5(h) hereof.
d) Internal Revenue Code. Anything in this Plan to the contrary notwithstanding, in the event that the Company's outside independent auditor's determine that any Payment to any Employee would be non-deductible by the Company for federal income tax purposes under the Code, then the amount of the Payment shall be reduced to amount which maximized the Payment without causing the Payment to be nondeductible by the Company.
e) Governing Law. This Plan shall be governed by and subject to the laws of the State of Delaware.
f) Severability. The invalidity or unenforceability of any particular provision of this particular Plan shall not affect the other provisions, and this Plan shall be construed in all respects as if such invalid or unenforceable provision has not been contained herein.
g) Captions. The captions in this Plan are for convenience and identification purposes only, are not an integral part of this Plan, and are not to be considered in the interpretation of any part hereof.
h) Notices. Except as specifically set forth in this Plan, all notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person or sent by registered or certified mail, postage prepaid. Notices to the Company shall be addressed to Range Resources Corporation, 500 Throckmorton Street, Fort Worth, Texas 76102, attn.: President. Notices to Employees, if mailed, shall be addressed to the latest address which the Company has for such Employee.
Approved:
/s/ JOHN H. PINKERTON -------------------------- John H. Pinkerton President and Chief Executive Officer Dated: September 15, 1998 |
.
.
.
EXHIBIT 12.1
Range Resources Corporation
Computation of Ratio of Earnings to Fixed Charges
(in thousands except ratios)
Six Months
Ended
June 30,
2003 2002 2001 2000 1999 1998
---------- ---------- ---------- ---------- ---------- ----------
EARNINGS:
Income before provision for incomes taxes $ 16,108 $ 22,408 $ 17,257 $ 35,004 $ (22,772) $ (229,618)
Add: Fixed charges 10,986 23,715 32,732 40,475 47,436 40,840
---------- ---------- ---------- ---------- ---------- ----------
Total earnings $ 27,094 $ 46,123 $ 49,989 $ 75,479 $ 24,664 $ (188,778)
========== ========== ========== ========== ========== ==========
FIXED CHARGES:
Interest expense $ 10,719 $ 23,153 $ 32,179 $ 39,953 $ 47,085 $ 40,642
Amortization of debt issuance costs (1)
Interest portion of rental expense 267 562 553 522 351 198
---------- ---------- ---------- ---------- ---------- ----------
Total fixed charges $ 10,986 $ 23,715 $ 32,732 $ 40,475 $ 47,436 $ 40,840
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 2.5 1.9 1.5 1.9 0.5 (4.6)
|
(1) Amortization of debt issuance costs is included in interest expense.
For the years ended December 31, 1999 and 1998, earnings were inadequate to cover fixed charges by $22.8 million and $229.6 million, respectively.
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-4) and related Prospectus of Range Resources Corporation for the registration of $100,000,000 of Senior Subordinated Notes and to the incorporation by reference therein of our report dated January 31, 2003, with respect to the consolidated financial statements of Great Lakes Energy Partners L.L.C. included in the Annual Report (Form 10-K) of Range Resources Corporation for the year ended December 31, 2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
September 3, 2003
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Range Resources Corporation:
We consent to the use of our report dated March 4, 2003, with respect to the consolidated balance sheets of Range Resources Corporation and subsidiaries as of December 31, 2002 and 2001, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2002, incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. Our report dated March 4, 2003 refers to the work of other auditors related to the year ended December 31, 2002 and contains an explanatory note that refers to a change in the Company's method of accounting for derivative financial instruments, effective January 1, 2001.
/s/ KPMG LLP Dallas, Texas September 3, 2003 |
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
BANK ONE, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670-0120
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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BANK ONE, NATIONAL ASSOCIATION
1 BANK ONE PLAZA, SUITE IL1-0120
CHICAGO, ILLINOIS 60670-0120
BANK ONE CORPORATION LAW DEPARTMENT, ATTN: MARLA S. ROTH, (312) 732-2773
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
RANGE RESOURCES CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
34-1312571
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
777 MAIN STREET, SUITE 800
FORT WORTH, TEXAS 76102
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
|
7 3/8% SENIOR SUBORDINATED NOTES DUE 2013
(TITLE OF INDENTURE SECURITIES)
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C..
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 3rd day of September, 2003.
BANK ONE, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ MARLA S. ROTH
---------------------
MARLA S. ROTH
VICE PRESIDENT
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* EXHIBITS 1, 2, 3, AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE, NATIONAL ASSOCIATION, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF HOUSEHOLD FINANCE CORPORATION FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 2000 (REGISTRATION NO. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 3, 2003
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Range Resources Corporation, and Bank One, National Association, as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE, NATIONAL ASSOCIATION
BY: /S/ MARLA S. ROTH
----------------------
MARLA S. ROTH
VICE PRESIDENT
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EXHIBIT 7
Legal Title of Bank: Bank One, NA Call Date: 06/30/03 Address: 1 Bank One Plaza Cert #: 03618 Page RC-1 City, State Zip: Chicago, IL 60670 |
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2003
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300
--------
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCON
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1)................... 0081 17,114,000 1.a
b. Interest-bearing balances(2)............................................ 0071 5,902,000 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 59,166,000 2.b
3. Federal funds sold and securities purchased under agreements to
resell
a. Federal funds sold in domestic offices.................................. B987 9,055,000
b. Securities Purchased under agreements to resell......................... B989 9,976,000 3.
4. Loans and lease financing receivables: (from Schedule RC-C): RCON
----
a. Loans and leases held for sale.......................................... 5369 6,117,000 4.a
b. Loans and leases, net of unearned income................................ B528 109,091,000 4.b
c. LESS: Allowance for loan and lease losses............................... 3123 3,478,000 4.c
d. Loans and leases, net of unearned income and allowance
(item 4.b minus 4.c).................................................... B529 105,613,000 4.d
5. Trading assets (from Schedule RC-D)........................................ 3545 5,960,000 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 1,385,000 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 70,000 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 414,000 8.
9. Customers' liability to this bank on acceptances outstanding............... 2155 249,000 9.
10. Intangible assets..........................................................
a. Goodwill............................................................... 3163 847,000 10.a
b. Other intangible assets (from Schedule RC-M)........................... 0426 66,000 10.b
11. Other assets (from Schedule RC-F).......................................... 2160 9,166,000 11.
12. Total assets (sum of items 1 through 11)................................... 2170 231,100,000 12.
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
(3) Includes all securities resale agreements in domestic and foreign offices,
regardless of maturity.
Legal Title of Bank: Bank One, NA Call Date: 06/30/03 Address: 1 Bank One Plaza Cert #: 03618 Page RC-2 City, State Zip: Chicago, IL 60670 |
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E)..................................................... 2200 132,105,000 13.a
(1) Noninterest-bearing(1).............................................. 6631 41,277,000 13.a1
(2) Interest-bearing.................................................... 6636 90,828,000 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs........... RCFN
----
(from Schedule RC-E, part II)........................................... 2200 22,220,000 13.b
(1) Noninterest-bearing................................................. 6631 215,000 13.b.1
(2) Interest-bearing.................................................... 6636 22,005,000 13.b.2
14. Federal funds purchased and securities sold under agreements RCFN
to repurchase ----
a. Federal funds purchased in domestic offices (2)......................... B993 6,197,000 14.a
b. Securities sold under agreements to repurchase (3)...................... RCFD
----
B995 4,112,000 14.b
15. Trading Liabilities(from Schedule RC-D).................................... 3548 4,666,000 15.
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases) (from Schedule RC-M)................. 3190 29,130,000 16.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding................... 2920 249,000 18.
19. Subordinated notes and debentures (2)...................................... 3200 5,029,000 19.
20. Other liabilities (from Schedule RC-G)..................................... 2930 9,816,000 20.
21. Total liabilities (sum of items 13 through 20)............................. 2948 213,524,000 21.
22. Minority interest in consolidated subsidiaries............................. 3000 116,000 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............................. 3838 0 23.
24. Common stock............................................................... 3230 201,000 24.
25. Surplus (exclude all surplus related to preferred stock)................... 3839 9,164,000 25.
26. a. Retained earnings....................................................... 3632 8,077,000 26.a
b. Accumulated other comprehensive income (3).............................. B530 18,000 26.b
27. Other equity capital components (4)...................................... A130 0 27.
28. Total equity capital (sum of items 23 through 27).......................... 3210 17,460,000 28.
29. Total liabilities, minority interest, and equity
capital (sum of items 21, 22, and 28)...................................... 3300 231,100,000 29.
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Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement below that best describes the most RCON Number Number
comprehensive level of auditing work performed for the bank by independent ---- ------ M.I.
external auditors as of any date during 2001............................... 6724 N/A
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1 = Independent audit of the bank conducted in accordance 5 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 6 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 7 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 8 = Other audit procedures (excluding tax preparation work)
3 = Attestation on bank management's assertion on the 9 = No external audit work
effectiveness of internal control over financial reporting by a
certified public accounting firm.
4 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by state
chartering authority)
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16,
"other borrowed money."
(3) Includes all securities repurchase agreements in domestic and foreign
offices, regardless of maturity.
(4) Includes limited-life preferred stock and related surplus.
(5) Includes net unrealized holding gains (losses) on available-for-sale
securities, accumulated net gains (losses) on cash flow hedges, and minimum
pension liability adjustments.
(6) Includes treasury stock and unearned Employee Stock Ownership Plan shares.