-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, PF2FLuU2GrwRa+nl6io+3DTaKzERPz5Fa4p85ghRhoOS1xUh056Ahrcq0yltT73l W7pnmS0tSaNUFULZaIw/uA== 0000950129-95-000308.txt : 19950417 0000950129-95-000308.hdr.sgml : 19950417 ACCESSION NUMBER: 0000950129-95-000308 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 19950414 EFFECTIVENESS DATE: 19950503 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SANTA FE ENERGY RESOURCES INC CENTRAL INDEX KEY: 0000086772 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 362722169 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-58613 FILM NUMBER: 95528810 BUSINESS ADDRESS: STREET 1: 1616 S VOSS RD STE 1000 CITY: HOUSTON STATE: TX ZIP: 77057 BUSINESS PHONE: 7137832401 MAIL ADDRESS: STREET 1: 1616 S VOSS ROAD STE 1000 CITY: HOUSTON STATE: TX ZIP: 77057 FORMER COMPANY: FORMER CONFORMED NAME: SANTA FE NATURAL RESOURCES INC DATE OF NAME CHANGE: 19900111 S-8 1 FORM S-8 DATED 4/14/95 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 1995 REGISTRATION NO. 33- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SANTA FE ENERGY RESOURCES, INC. (Exact name of registrant as specified in its charter) DELAWARE 36-2722169 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1616 SOUTH VOSS ROAD, SUITE 1000 HOUSTON, TEXAS 77057 (Address of Principal Executive Offices) (Zip Code)
SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (Full title of the plan) DAVID L. HICKS VICE PRESIDENT -- LAW AND GENERAL COUNSEL SANTA FE ENERGY RESOURCES, INC. 1616 SOUTH VOSS ROAD, SUITE 1000 HOUSTON, TEXAS 77057 (Name and address of agent for service) (713) 507-5000 (Telephone number, including area code, of agent for service) ------------------------ CALCULATION OF REGISTRATION FEE ===============================================================================
PROPOSED PROPOSED MAXIMUM MAXIMUM OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES AMOUNT TO BE PRICE OFFERING REGISTRATION TO BE REGISTERED(1) REGISTERED PER SHARE PRICE FEE - ---------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share................. 500,000 Shares $9.6875(2) $4,843,750(2) $1,671 ====================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also relates to an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the registration fee, based upon the average of the high and low sales prices of a share of the Company's Common Stock on the New York Stock Exchange on April 11, 1995. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT This Registration Statement on Form S-8 hereby incorporates by reference the contents of the Registration Statements of Santa Fe Energy Resources, Inc. (the "Company") and the Santa Fe Energy Resources Savings Investment Plan (the "Plan") on Form S-8 (Registration Nos. 33-37175 and 33-44542) which were filed with the Securities and Exchange Commission on October 5, 1990 and December 16, 1991, respectively. ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The Company and the Plan incorporate herein by reference the following documents, or portions of documents, as of their respective dates as filed with the Securities and Exchange Commission: (1) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994; (2) The Plan's Annual Report on Form 11-K for the fiscal year ended December 31, 1993; and (3) The description of the Company's common stock, par value $.01 per share (the "Common Stock"), contained in the Company's Registration Statement on Form 8-A (File No. 1-7667) filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on February 21, 1990. All documents filed by the Company and the Plan pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION ------ ----------- 5.1 Opinion of Andrews & Kurth L.L.P. 5.2 Favorable determination letter from the Internal Revenue Service to the effect that the Santa Fe Energy Resources Savings Investment Plan is qualified under Section 401 of the Internal Revenue Code. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Andrews & Kurth L.L.P. (included in their opinion filed as Exhibit 5.1). 23.3 Consent of Ryder Scott Company. 24.1 A power of attorney, pursuant to which amendments to this Registration Statement may be filed, is included on the signature page contained in Part II of this Registration Statement. 99.1 First Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.2 Third Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.3 Fourth Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.4 Fifth Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.5 Sixth Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.6 Seventh Amendment to Santa Fe Energy Resources Savings Investment Plan.
II-1 3 SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, Santa Fe Energy Resources, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on April 13, 1995. SANTA FE ENERGY RESOURCES, INC. By: /s/ JAMES L. PAYNE James L. Payne Chairman of the Board, President and Chief Executive Officer 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. Know all men by these presents, that each of the undersigned officers and directors of Santa Fe Energy Resources, Inc. hereby constitutes and appoints James L. Payne, R. Graham Whaling and David L. Hicks, and each or any of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, and with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE - --------------------------------------------- ---------------------------- ---------------- /s/ JAMES L. PAYNE Chairman of the Board, April 13, 1995 James L. Payne President and Chief Executive Officer and Director (Principal executive officer) /s/ R. GRAHAM WHALING Senior Vice President and April 13, 1995 R. Graham Whaling Chief Financial Officer (Principal financial and accounting officer) /s/ ROD F. DAMMEYER Director April 13, 1995 Rod F. Dammeyer /s/ WILLIAM E. GREEHEY Director April 13, 1995 William E. Greehey /s/ MELVYN N. KLEIN Director April 13, 1995 Melvyn N. Klein /s/ ROBERT D. KREBS Director April 13, 1995 Robert D. Krebs
II-2 4
SIGNATURE TITLE DATE - --------------------------------------------- ---------------------------- ---------------- /s/ ALLAN V. MARTINI Director April 13, 1995 Allan V. Martini /s/ MICHAEL A. MORPHY Director April 13, 1995 Michael A. Morphy /s/ REUBEN F. RICHARDS Director April 13, 1995 Reuben F. Richards Director David M. Schulte /s/ MARC J. SHAPIRO Director April 13, 1995 Marc J. Shapiro /s/ ROBERT F. VAGT Director April 13, 1995 Robert F. Vagt Director Kathryn D. Wriston
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the Compensation and Benefits Committee (which administers the Santa Fe Energy Resources Savings Investment Plan) has duly caused this registration statement to be signed on behalf of the Plan by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on April 13, 1995. SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By: /s/ WILLIAM E. GREEHEY William E. Greehey Chairman, Compensation and Benefits Committee /s/ ROD F. DAMMEYER Rod F. Dammeyer Member, Compensation and Benefits Committee /s/ MICHAEL A. MORPHY Michael A. Morphy Member, Compensation and Benefits Committee /s/ REUBEN F. RICHARDS Reuben F. Richards Member, Compensation and Benefits Committee II-3 5 INDEX TO EXHIBITS
SEQUENTIALLY NUMBERED NUMBER DESCRIPTION PAGE ------ --------------------------------------------------------------------- ----------- 5.1 Opinion of Andrews & Kurth L.L.P. 5.2 Favorable determination letter from the Internal Revenue Service to the effect that the Santa Fe Energy Resources Savings Investment Plan is qualified under Section 401 of the Internal Revenue Code. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Andrews & Kurth L.L.P. (included in their opinion filed as Exhibit 5.1). 23.3 Consent of Ryder Scott Company. 24.1 A power of attorney, pursuant to which amendments to this Registration Statement may be filed, is included on the signature page contained in Part II of this Registration Statement. 99.1 First Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.2 Third Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.3 Fourth Amendment to Sant a Fe Energy Resources Savings Investment Plan. 99.4 Fifth Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.5 Sixth Amendment to Santa Fe Energy Resources Savings Investment Plan. 99.6 Seventh Amendment to Santa Fe Energy Resources Savings Investment Plan.
EX-5.1 2 OPINION OF ANDREWS & KURTH 1 EXHIBIT 5.1 [Letterhead of Andrews & Kurth L.L.P.] April 13, 1995 Board of Directors Santa Fe Energy Resources, Inc. 1616 South Voss, Suite 1000 Houston, Texas 77057 Gentlemen: We have acted as counsel to Santa Fe Energy Resources, Inc., a Delaware corporation (the "Company"), in connection with the Company's Registration Statement on Form S-8 (the "Registration Statement") relating to the registration under the Securities Act of 1933, as amended, of 500,000 shares of common stock, par value $0.01 per share (the "Common Stock"), of the Company issuable under the Santa Fe Energy Resources Savings Investment Plan (the "Plan"). In such capacity, we have examined such corporate records and documents, certificates of corporate and public officials and such other instruments as we have deemed necessary for the purposes of the opinions contained herein. As to all matters of fact material to such opinions, we have relied upon the representations of officers of the Company. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the original of all documents submitted to us as copies. Based upon the foregoing and having due regard for such legal considerations as we deem relevant, we are of the opinion that the above-described shares of Common Stock to be issued by the Company pursuant to the Plan have been duly authorized, and that such shares, when issued in accordance with the terms of the Plan, will be validly issued, fully-paid and nonassessable. We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. Very truly yours, ANDREWS & KURTH L.L.P. 1198/2409 EX-5.2 3 FAVORABLE DETERMINATION LETTER 1 EXHIBIT 5.2 INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR 1100 COMMERCE STREET DALLAS, TX 75242 March 29, 1995 SANTA FE ENERGY RESOURCES INC C/O MICHAEL D. STUART 4200 TEXAS COMMERCE TOWER HOUSTON, TX 77002 Employer Identification Number: 36-2722169 File Folder Number: 760016762 Person to Contact: JILL RUTHERFORD Contact Telephone Number: (214) 767-6023 Plan Name: SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN Plan Number: 004 Dear Applicant: We have made a favorable determination on your plan identified above based on the information supplied. Please keep this letter in your permanent records. Continued qualification of the plan under its present form will depend on its effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.) We will review the status of the plan in operation periodically. The enclosed document explains the significance of this favorable termination letter, points out some features that may affect the qualified status of your employee retirement plan, and provides information on the reporting requirements for your plan. It also describes some events that automatically nullify it. It is very important that you read the publication. This letter relates only to the status of your plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes. This determination expresses an opinion on whether the amendment(s), in and of itself, affects the continued qualified status of the plan under Code section 401 and the exempt status of the related trust under section 501(a). It is not an opinion on the qualification of the plan as a whole and the exempt status of the related trust as a whole. This determination letter is applicable for the amendment(s) adopted on NOVEMBER 10, 1994. This plan has been mandatorily disaggregated, permissively aggregated, or restructured to satisfy the nondiscrimination requirements. This plan satisfies the nondiscrimination in amount requirement of section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe harbor described in the regulations. This letter is issued under Rev. Proc. 93-39 and considers the amendments required by the Tax Reform Act of 1986 except as otherwise specified in this letter. 2 -2- SANTA FE ENERGY RESOURCES, INC This plan satisfies the nondiscriminatory current availability requirements of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits, rights, and features that are currently available to all employees in the plan's coverage group. For this purpose, the plan's coverage group consists of those employees treated as currently benefiting for purposes of demonstrating that the plan satisfies the minimum coverage requirements of section 410(b) of the Code. This letter may not be relied upon with respect to whether the plan satisfies the qualification requirements as amended by the Uruguay Round Agreements Act. Pub. L. 103-465. We have sent a copy of this letter to your representative as indicated in the power of attorney. If you have questions concerning this matter, please contact the person whose name and telephone number are shown above. Sincerely yours, /s/ Bobby E. Scott Bobby E. Scott District Director Enclosures: Publication 794 Reporting & Disclosure Guide for Employee Benefit Plans EX-23.1 4 CONSENT OF PRICE WATERHOUSE 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 1995 appearing on page 32 of Santa Fe Energy Resources, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994. We also consent to the incorporation by reference in the Registration Statement of our report dated June 24, 1994 appearing on page 4 of the Annual Report of the Santa Fe Energy Resources Savings Investment Plan on Form 11-K for the year ended December 31, 1993. PRICE WATERHOUSE LLP Houston, Texas April 13, 1995 EX-23.3 5 CONSENT OF RYDER SCOTT 1 EXHIBIT 23.3 CONSENT OF RYDER SCOTT COMPANY PETROLEUM ENGINEERS We hereby consent to the incorporation by reference in the Prospectus forming a part of this Registration Statement on Form S-8 of references to our firm contained in Santa Fe Energy Resources, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994. RYDER SCOTT COMPANY PETROLEUM ENGINEERS Houston, Texas April 13, 1995 EX-99.1 6 1ST AMENDMENT TO SANAT FE 1 EXHIBIT 99.1 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (FIRST AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this First Amendment to the Plan is hereby adopted effective as of May __, 1991: 1. Section 2.13 of the Plan is amended by adding thereto the following paragraph: "In addition, a U.S. citizen or resident employed by a foreign affiliate of the Company with respect to which the Company has entered into an agreement with the Internal Revenue Service pursuant to Section 3121(l) of the Code (a "Covered Foreign Affiliate") shall be deemed to be in the Eligible Class (and shall be treated as an Employee of the Company) during the period he remains continuously employed by a Covered Foreign Affiliate, provided he was a Participant in the Eligible Class immediately prior to his employment with the Covered Foreign Affiliate or he is employed in a classification or position with a Covered Foreign Affiliate that has been designated in writing as being in the Eligible Class by the Plan Administrator, and provided further, that (1) no contributions under a funded plan of deferred compensation are made by any person other than the Company with respect to the remuneration paid to the employee by such Covered Foreign Affiliate and (2) such period of deemed Eligible Class employment shall not cover any period of employment during which the Section 3121(l) agreement with the Internal Revenue Service is not in effect." 2. All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. 2 3. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. 4. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument which may be evidenced by any one counterpart. IN WITNESS WHEREOF, this First Amendment has been executed on this May__, 1991, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By: ------------------------------------ Chairman EX-99.2 7 3RD AMENDMENT TO SANTA FE 1 EXHIBIT 99.2 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (THIRD AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this Third Amendment to the Plan is hereby adopted effective as of November 1, 1990, the Plan's effective date: 1. Section 2.19 of the Plan is amended to read as follows: "'Highly Compensated Employee' shall mean any Employee who performs service for the Employer or an Affiliated Company during the determination year and who, during the look-back year: (i) received compensation from the Employer or an Affiliated Company in excess of $75,000 (as adjusted pursuant to section 415(d) of the Code); (ii) received compensation from the Employer or an Affiliated Company in excess of $50,000 (as adjusted pursuant to section 415(d) of the Code) and was a member of the top-paid group for such year; or (iii) was an officer of the Employer or an Affiliated Company and received compensation during such year that is greater than 50% of the dollar limitation in effect under section 415(d)(1)(A) of the Code. The term highly compensated employee also includes: (i) employees who are both described in the preceding sentence if the term 'determination year' is substituted for the term 'look-back year' and the employee is one of the 100 employees who received the most compensation from the employer during the determination year; and (ii) employees who are 5% owners at any time during the look-back year or determination year. If no officer has satisfied the compensation requirement of (iii) above during either a determination year or look-back year, the highest paid officer for such year shall be treated as a highly compensated employee. 2 For this purpose, the determination year shall be the plan year. The look-back year shall be the twelve-month period immediately preceding the determination year. A highly compensated former employee includes any employee who separated from service (or was deemed to have separated) prior to the determination year, performs no service for the employer during the determination year, and was a highly compensated active employee for either the separation year or any determination year ending on or after the employee's 55th birthday. If an Employee is, during a determination year or look-back year, a family member of either a 5 percent owner who is an active or former employee or a highly compensated employee who is one of the 10 most highly compensated employees ranked on the basis of compensation paid by the Employer or an Affiliated Company during such year, then the family member and the 5 percent owner or top-ten highly compensated employee shall be aggregated. In such case, the family member and 5 percent owner or top-ten highly compensated employee shall be treated as a single employee receiving compensation and plan contributions or benefits equal to the sum of such compensation and contributions or benefits of the family member and 5 percent owner or top-ten highly compensated employee. For purposes of this section, family member includes the spouse, lineal ascendants and descendants. The determination of who is a highly compensated employee, including the determinations of the number and identity of employees in the top-paid group, the top 100 employees, the number of employees treated as officers and the compensation that is considered, will be made in accordance with section 414(q) of the Code and the regulations thereunder." 2. Section 2.29 is amended to read as follows: "'Qualified Joint and Survivor Annuity' shall mean an immediate annuity for the life of the Participant with a survivor annuity of 50% for the life of his spouse, as his contingent annuitant, as described in Option 2 in Section 8.1." 3. Section 4.3 is amended to read as follows: "I. Excess Deferrals (a) A Participant's Deferred Contributions shall in no event exceed $7,979 for the 1990 taxable year of the Participant. This dollar limitation shall be adjusted annually as provided in Code Section 415(d) pursuant to regulations. The adjusted limitation shall be effective as of January 1 of each calendar year. -2- 3 (b) In the event that the dollar limitation provided for in (a) is exceeded, the Plan Administrator shall direct the Trustee to distribute such excess amount, and any income (or loss) allocable to such amount (as provided in (d) below), to the Participant not later than the first April 15 following the close of the Participant's taxable year. (c) In the event that a Participant is also a participant in (1) another qualified cash or deferred arrangement (as defined in Code Section 401(k)), (2) a simplified employee pension (as defined in Code Section 408(k)), or (3) a salary reduction arrangement (within the meaning of Code Section 3121(a)(5)(D)) and the elective deferrals, as defined in Code Section 402(g)(3), made under such other arrangement(s) and this Plan cumulatively exceed $7,979 for 1990 (or such amount adjusted annually as provided in Code Section 415(d) pursuant to regulations) for such Participant's taxable year, the Participant may, not later than March 1 following the close of his taxable year, notify the Plan Administrator in writing of such excess and request that his 401(k) contributions under this Plan be reduced by an amount specified by the Participant. Such amount shall then be distributed in the same manner as provided in (b). And, to the extent Employer matching contributions have been made with respect to an excess deferral, such matching amount (and income or loss) shall be forfeited. (d) The income (or loss) allocable to returnable excess deferrals for a Plan Year shall be determined by the Plan Administrator in a reasonable manner and need not include any gain or loss for the period between the end of the Plan Year and the date of distribution. Income includes all earnings and appreciation, including such items as interest, dividends, rent, royalties, gains from the sale of property, appreciation in the value of stocks, bonds, annuity and life insurance contracts, and other property, without regard to whether such appreciation has been realized. Unless the Plan Administrator elects otherwise for a Plan Year, the income (or loss) allocable to returnable contributions for the Plan Year shall be determined by multiplying the income (or loss) for the Plan Year allocable to employee contributions, matching contributions, and amounts treated as matching contributions (whichever is applicable) by a fraction. The numerator of the fraction shall be the amount of returnable contributions made on behalf of the employee for the Plan Year. The denominator of the fraction shall be the total account balance of the employee attributable to employee contributions, matching contributions and amounts treated as matching contributions as of the end of the Plan Year, reduced by the gain allocable to such total amount for the Plan Year and increased by the loss allocable to such total amount for the Plan Year. II. Actual Deferral Percentage. For purposes of this Section, "Actual Deferral Percentage" ("ADP") means, with respect to the Highly Compensated Employee group and Non-Highly Compensated Employee group for a plan year, the average of the ratios, calculated -3- 4 separately for each member in such group, of the amount of Deferred Contributions allocated to each member's Deferred Contribution Account (unreduced by distributions made pursuant to I(b) and (d) above) for such Plan Year, to such Participant's Section 415 Compensation for such Plan Year. In the case of a Highly Compensated Employee who is either a 5% owner or one of the ten most highly compensated employees, the actual deferral percentage (ADP) for the Family Member group (which is treated as one Highly Compensated Employee) is the ADP determined by combining the elective contributions, compensation and amounts treated as elective contributions of all eligible Family Members. Except to the extent taken into account in the preceding sentence, the contributions, compensation and amounts treated as elective contributions of all Family Members are disregarded in determining the ADP for the groups of Highly Compensated Employees and Non-Highly Compensated Employees. In the case of a Highly Compensated Employee whose ADP is determined under the family aggregation rules, the ADP is reduced in accordance with the "leveling" method described in the regulations and the excess contributions for the family unit are allocated among the Family Members in proportion to the contributions of each Family Member that have been combined. For purposes of this Section 4.3, a Family Member is an Employee's spouse, lineal ascendants or descendants or a spouse of such lineal ascendant or descendent. III. Actual Deferral Percentage Test. (a) Maximum Annual Allocation: For each Plan Year, the annual allocation derived from Deferred Contributions to a Participant's Deferred Contribution Account shall satisfy one of the following tests: (1) The "Actual Deferral Percentage" for the Highly Compensated Employee group shall not be more than the "Actual Deferral Percentage" of the Non-Highly Compensated Employee group multiplied by 1.25, or (2) The excess of the "Actual Deferral Percentage" for the Highly Compensated Employee group over the "Actual Deferral Percentage" for the Non-Highly Compensated Employee group shall not be more than two percentage points. Additionally, the "Actual Deferral Percentage" for the Highly Compensated Employee group shall not exceed the "Actual Deferral Percentage" for the Non-Highly Compensated Employee group multiplied by two. This alternative limitation test cannot be used to satisfy the Actual Deferral Percentage test and the Matching Contribution Percentage Test set forth below except as otherwise provided by Treasury Regulation Section 1.401(m)-2(b), the provisions of which are hereby incorporated by reference. If multiple use occurs, the Employer shall reduce -4- 5 the actual contribution ration for all Highly Compensated Employees in the manner provided in the regulations. (b) For the purposes of Sections II(a) and III, a Highly Compensated Employee and a Non-Highly Compensated Employee shall include any Employee eligible to make a Deferred Contribution, whether or not such contribution was made. (c) For the purposes of this Section, if two or more plans which include cash or deferred arrangements are considered one plan for the purposes of Code Section 401(a)(4) or 410(b), the cash or deferred arrangements included in such plans shall be treated as one arrangement. The aggregated plans must also satisfy Code Sections 401(a)(4) and 410(b) as though they were a single plan. (d) For purposes of this Section, if a Highly Compensated Employee is a member under two or more cash or deferred arrangements of the Employer, all such cash or deferred arrangements (other than those that may not be permissively aggregated as a single arrangement) shall be treated as one cash or deferred arrangement for the purpose of determining the deferral percentage with respect to such Highly Compensated Employee. IV. Adjustments As A Result of Actual Deferral Percentage Test. In the event that the initial allocations of the contributions made pursuant to the Plan do not satisfy one of the tests set forth in Section III(a), then on or before the 15th day of the third month following the end of the Plan Year, but in no event later than the close of the following Plan Year, each Highly Compensated Employee, beginning with the member having the highest "Actual Deferral Percentage," shall have his portion of excess Deferred Contributions (and any income or loss allocable to such portion as provided in Section I(d) distributed to him, with such progress repeated, until one of the tests set forth in Section III(a) is satisfied. Excess contributions to be distributed for a Plan Year shall be reduced by any excess contributions previously distributed for such Plan Year. In lieu of a corrective distribution, the Employer may make a special contribution to the Employer Accounts of Non-Highly Compensated Employees in a manner sufficient to satisfy one of the tests set forth in Section III(a). Such contribution shall be fully vested and subject to the same restrictions on withdrawal as apply to Deferred Contributions. V. Maximum Matching Contribution Percentage. (a) The "Matching Contribution Percentage" for the Highly Compensated Employee group shall not exceed the greater of: (1) 125% of such percentage for the Non-Highly Compensated Employee group; or -5- 6 (2) the lesser of 200% of such percentage for the Non-Highly Compensated Employee group, or such percentage for the Non-Highly Compensated Employee group plus two percentage points. (b) For the purposes of this Section V and Section VI, "Matching Contribution Percentage" for a Plan Year means, with respect to the Highly Compensated Employee group and Non-Highly Compensated Employee group, the average of the ratios (calculated separately for each member in each group) of: (1) the sum of the Employer matching contributions contributed under the Plan on behalf of each such member for such Plan Year; to (2) the Participant's Section 415 Compensation for such Plan Year. (c) In the case of a Highly Compensated Employee who is either a 5% owner or one of the ten most highly compensated employees, the actual contribution ratio (ACR) for the family group (which is treated as one Highly Compensated Employee) is the ACR determined by combining the contributions and compensation of all eligible Family Members. Except to the extent taken into account in the preceding sentence, the contributions, compensation of all Family Members are disregarded in determining the actual contribution percentages for the groups of Highly Compensated Employees and Non-Highly Compensated Employees. In all cases the determination and treatment of the "Matching Contribution Percentage" of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. (d) For purposes of this Section, if two or more plans of the Employer to which matching contributions, Employee contributions, or elective deferrals are made are treated as one plan for purposes of Code Section 410(b), such plans shall be treated as one plan for purposes of this Section V. In addition, if a Highly Compensated Employee participates in two or more plans described in Code Section 401(a) or arrangements described in Code Section 401(k) which are maintained by the Employer to which such contributions are made, all such contributions shall be aggregated for purposes of this Section V. (e) For purposes hereof, Highly Compensated Employee and Non-Highly Compensated Employee shall include any Employee eligible to have matching contributions allocated to his account for the Plan Year. -6- 7 VI. Adjustments for Excessive Contribution Percentage. (a) In the event that the "Matching Contribution Percentage" for the Highly Compensated Employee group exceeds the "Matching Contribution Percentage" for the Non-Highly Compensated Employee group pursuant to Section V(a), the Plan Administrator (on or before the 15th day of the third month following the end of the Plan Year, but in no event later than the close of the following Plan Year) shall direct the Trustee to proportionately distribute to the Highly Compensated Employee group the vested amount of "Excess Aggregate Contributions" (and any income allocable to such contributions as provided in (d) of Section I and forfeit such "Excess Aggregate Contributions" that are not vested (including income or loss as determined under Section I). Employer contributions and employee after-tax contributions shall be returned pro rata as necessary to satisfy this Section. Such distribution or forfeiture shall be made on behalf of the Highly Compensated Employee group in the order of their "Matching Contribution Percentages," beginning with the highest of such percentages. Forfeitures of "Excess Aggregate Contributions" shall not be allocated to a Highly Compensated Employee whose contributions are reduced pursuant to this Section. In lieu of a corrective distribution, the Company may make a special contribution to the Deferred Contribution Accounts of Non-Highly Compensated Employees in a manner sufficient to satisfy one of the tests set forth in Section V(a). Such contribution shall be fully vested and subject to the same restrictions on withdrawal as apply to Participant Deferred Contributions. (b) For the purposes of this Section, "Excess Aggregate Contributions" means, with respect to any Plan Year, the excess of: (1) the aggregate amount of contributions pursuant to Sections VI(b)(1) and VI(c) actually made on behalf of the Highly Compensated Employee group for such Plan Year, over (2) the maximum amount of such contributions permitted under the limitations of Section VI(a). (c) The determination of the amount of "Excess Aggregate Contributions" with respect to any Plan Year shall be made after: (1) first determining the excess contributions pursuant to Section I, and (2) then determining the excess annual allocations pursuant to Section III(a). (d) In the case of a Highly Compensated Employee whose actual contribution ratio (ACR) is determined under the family aggregation rules, the ACR is reduced in accordance with the "leveling" method described in section 1.401(m)-1(e)(2) of the -7- 8 regulations and the excess aggregate contributions for the family unit are allocated among the Family Members in proportion to the contributions of each Family Member that have been combined." 4. Section 4.8 is amended by deleting the first paragraph thereof and substituting therefor the following: "Notwithstanding anything contained herein to the contrary, the total annual additions (as defined below) allocated to the Accounts of a Participant for any Plan Year shall not exceed the lesser of (i) $30,000, or, if greater, the dollar limitation in effect under Code Section 415(b)(1)(A), or ((i) 25% of the Participant's Section 415 Compensation (as defined below). Annual additions means the sum of the following amounts credited to a Participants Accounts for the limitation year: (a) employer contributions, (b) employee contributions, (c) forfeitures, and (d) amounts allocated, after March 31, 1984, to an individual medical account, as defined in section 415(1)(2) of the Code, which is part of a pension or annuity plan maintained by the employer. Also amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits, allocated to the separate account of a key employee, as defined in section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the employer shall be treated as annual additional. Section 415 Compensation means wages, salaries, and fees for professional services and other amounts received (without regard to whether or not an amount is paid in cash) for personal services actually rendered by the employee in the course of employment with the employer maintaining the plan to the extent that the amounts are includable in gross income (including, but not limited to, commissions paid salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, reimbursements, and expense allowances), and excluding the following: (a) employer contributions to a plan of deferred compensation which are not includable in the employee's gross income for the taxable year in which contributed, or employer contributions under a simplified employee pension plan to the extent such contributions are deductible by the employee, or any distributions from a plan of deferred compensation; (b) amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by the -8- 9 employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture; (c) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and (d) other amounts which received special tax benefits, or contributions made by the employer (whether or not under a salary reduction agreement) towards the purchase of an annuity described in section 403(b) of the Internal Revenue Code (whether or not the amounts are actually excludable from the gross income of the employee). For purposes of applying these limitations, compensation for a limitation year is the compensation actually paid or includable in the employee's gross income during such limitation year." 5. Section 9.2 is amended by adding to the end thereof the following two paragraphs: "The Plan Administrator shall provide each Participant, within the applicable period for such Participant (as defined below), a written explanation of the qualified preretirement survivor annuity provided in Section 9.1 above in such terms and in such a manner as would be comparable to the explanation provided for meeting the requirements of Section 8.2 applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant is whichever of the following periods ends last: (i) the period beginning with the first day of the plan year in which the Participant attains age 32 and ending with the close of the Plan Year preceding the Plan Year in which the Participant attains age 35; or (ii) a reasonable period ending after the individual becomes a Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation of service in case of a Participant who separates from service before attaining age 35. Notwithstanding anything above in this Section 9.2 to the contrary, a designation of a beneficiary other than the Participant's spouse by a Participant who has not attained age 35 will not be valid unless the Participant receives a written explanation of the qualified preretirement survivor annuity provided by Section 9.1 in such terms as are comparable to the explanation required under Section 8.2. Further, the qualified preretirement survivor annuity coverage of Section 9.1 will be automatically reinstated, i.e., the Participant's spouse will automatically again become his sole beneficiary entitled to the annuity provided in Section 9.1, as of the first day of the Plan Year in which the Participant attains age 35 unless a new beneficiary designation is filed by the Participant on or after such date, which new designation complies in full with the above requirements of this Section 9.2 concerning spousal consent." -9- 10 6. Section 13.11(b) is amended by changing the fourth sentence thereof to read as follows: "A permissive aggregation group is the required aggregation group of plans plus any other plan or plans of the Employer which, when considered as a group with the required aggregation group, would continue to satisfy the requirements of Code Section 401(a)(4) and 410." 7. Section 14.3(b) is amended to read as follows: "The promissory note shall provide for the payment of equal monthly installments of principal and interest on the unpaid balance of principal at the fixed annual rate set forth in Section 14.2(c) on the date the note is executed. The note shall further provide, with respect to a person who is an Employee, that the payments shall be through payroll deductions." All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, this Third Amendment has been executed on this ____________, 1992, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By: ------------------------------ Chairman -10- EX-99.3 8 4TH AMENDMENT TO SANTA FE 1 EXHIBIT 99.3 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (FOURTH AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this Fourth Amendment to the Plan is hereby adopted effective as of March 1, 1992: 1. Section 2.13 of the Plan is amended to read as follows: "'Eligible Class' shall mean an Employee of a Participating Company assigned to a permanent position other than (1) a nonresident alien, (2) a 'leased employee' within the meaning of Section 414(n) of the Code, (3) an Employee who is included in a bargaining unit that has a collective bargaining agreement with the Participating Company, unless the agreement provides for participating in the Plan by an Employee employees in such unit, or (4) an hourly paid Employee or an Employee in a class or group designated by the Employer as not being eligible to participate. If the merger of Adobe Resources Corporation into the Company is consummated and the Adobe 401(k) plan is terminated prior to such merger, the employees of Adobe and its subsidiaries who were eligible to participate in the Adobe 401(k) plan at the time of its termination shall not be 'Employees in the Eligible Class' for purposes of this Plan until the first Entry Date that is more than 12 months after the final distribution of all assets from the terminated Adobe 401(k) Plan." 2. Section 2.23 of the Plan is amended by adding a sentence thereto to read as follows: "'Participant' shall also include an Employee who makes a rollover contribution to the Plan pursuant to Section 4.9." 2 3. Section IV of the Plan is amended by adding thereto a new Section 4.9 to read as follows: "4.9. An Employee who is in the Eligible Class but elects not to make contributions to the Plan pursuant to Section 4.1 shall be eligible to make a rollover contribution to the Plan in cash or by check acceptable to the Plan, provided such contribution satisfies the requirements of Section 402(a) of the Code as being a 'qualified rollover,' and the Employee satisfies such other administrative requirements concerning such rollover contributions as may be required, including designating the investment fund(s) for such contribution. Rollover contributions are not subject to a Company matching contribution." 4. Section 5.1 of the Plan is amended to read as follows: "For the purpose of investing contributions under this Plan, the Company shall establish one or more trusts or enter into one or more group annuity contracts with one or more insurers, or may establish a combination of one or more trusts or insurance contracts. The Plan Administrator shall have the responsibility for selecting the investment funds offered hereunder and may, from time-to-time, select substitute funds, establish additional funds, or delete funds for the purpose of investing amounts derived from contributions hereunder. Until changed as provided above, contributions to the Plan shall be invested in Funds 1 through 5, in accordance with Section 5.2, as provided below: Fund 1 or 'Fixed Interest Fund' is a fund derived from contributions which shall be invested by the Trustee on a fixed income basis, which may include guaranteed interest contracts issued by one or more insurance companies or banks, a mutual fund and/or a bank or trust company collective trust fund that invests primarily in similar assets and/or in money market types of investments. Such investment shall generally provide for a guarantee of the principal amount of the Fund and a guaranteed fixed interest rate, which rate may be subject to modification from time-to-time. Fund 2 or 'S&P Index Fund' is a fund derived from contributions which shall be invested by the Trustee in an equity account consisting of investments that attempt to mirror the performance of the Standard & Poors' Composite Stock Index ('S&P 500'). Fund 3 or 'Company Stock Fund' is a fund derived from contributions which shall be invested by the Trustee in the common stock of the Company ('Company Stock'). Common Stock may be purchased by the Trustee and/or the Company or any Participating Company may make a contribution of -2- 3 Common Stock in kind with respect to all or a portion of the contribution which is to be invested in Fund 3. Dividends and other distributions or amounts received in respect of Company Stock held by the Trustee in Fund 3 shall be reinvested in such stock, and each such Participant's account shall be credited with a proportionate number of such 'new' shares determined on the basis of the number of such 'old' shares in each Participant's account on the prior Valuation Date. Fund 8 or 'Equity Growth Fund' is a fund derived from contributions which shall be invested by the Trustee primarily in common stocks, with this fund's objective being long-term capital appreciation. Fund 4 or 'Balanced Fund' is a fund derived from contributions which shall be invested by the Trustee in a diversified and balanced mix of bonds and common stocks, with this fund's objective being the preservation of principal, achievement of a reasonable income, and capital appreciation without significant risk. Notwithstanding the foregoing, the Trustee may invest such portion of a fund in cash or short term cash equivalents for liquidity purposes under the Plan. The Plan Administrator shall obtain descriptions of the investment choices available for the purpose of informing Participants with respect thereto. To the extent the Plan gives a Participant investment discretion with respect to this Accounts, the selection of investment choices is the sole responsibility of each Participant, and no Employee or representative of the Company or any Participating Company is authorized to make any recommendation to any Participant with respect to his investment choices. If elected by the Participants, 100% of the Plan's assets may be invested in Company Stock. In addition to the above, the Plan Administrator shall cause to be maintained the following separate funds with respect to those Participants whose Transferred SFP Plan Accounts included SFP Stock or Realty Stock: Fund 5 or 'SFP Stock Fund,' which shall consist of the shares of common stock of Santa Fe Pacific Corporation ('SFP Stock') allocated to such Participant's transferred accounts. No additional shares of SFP Stock shall be purchased under the SFP Stock Fund after the transfer date and all distributions with respect to the SFP Stock therein, other than SFP Stock, shall be automatically reinvested in the Company Stock Fund. Fund 6 or 'Realty Fund,' which shall consist of the shares of common stock of Catellus Development Corporation ('Realty Stock') allocated to such Participant's transferred accounts as of the transfer date. No additional Realty Stock shall be -3- 4 purchased under the Realty Fund after the transfer date and all distributions with respect to the Realty Stock, other than Realty Stock, shall be automatically reinvested in the Company Stock Fund. The continuation of the SFP Stock Fund and Realty Fund under the Plan shall be at the discretion of the Plan Administrator, who may, upon giving reasonable notice to the effected Participants, eliminate either or both of such Funds. If the event the Funds are eliminated and the Participant has not made a reinvestment election with respect to the proceeds of such Funds upon their elimination, such liquidation proceeds shall be automatically reinvested in Fund 1." 5. Section 5.2 of the Plan is amended to read as follows: "5.2 Prior to the date the Employee becomes a Participant hereunder, he must make an investment election which will apply to the investment of all his Deferred Contributions. If a Participant wishes to utilize more than one Fund, he shall notify the Company in writing as to the percentage of the contributions to be invested in each Fund. Such percentage must be either 25% or an exact multiple of 25%, e.g., 25%, 50% or 100%. All Employer Contributions and Employer Bonus Contributions made by a Participating Company on behalf of a Participant shall be automatically invested 100% in Fund 3, the Company Stock Fund." 6. Section 5.3 is amended to read as follows: "5.3 A Participant may change his investment election with respect to his future Deferred Contributions to be made under the Plan as of any future Entry Date. Such change shall be limited to the investment choices described in Section 5.2, other than the transferred SFP Stock Fund and Realty Fund. The Participant's election to change his investment election must be made in writing to the Company and, if the Participant wishes to utilize more than one Fund, he must specify the percentage of the Accounts to be invested in each Fund with such percentage being either 25% or an exact multiple of 25%, e.g., 25%, 50% or 100%. Elections shall be processed by the Company as soon as reasonably practicable after its receipt, but will always be effective on an Entry Date." -4- 5 7. Section 5.5 is amended to read as follows: "5.5 The value of a Participant's Accounts which are held in Fund 2, 4, or 8 maintained hereunder shall be determined as of each Valuation Date by: (a) First, allocating the Net Gains or Losses of such Fund since the preceding Valuation Date to each Participant's Accounts within such Fund in the same proportion as such Accounts for each Participant bore to the sum of all such Accounts for all Participants as of the preceding Valuation Date, (b) Second, crediting the monthly Participant's Deferred Contributions and Company Contributions designated for investment in such Fund and any transfers from the other investment funds to the respective Participant's Accounts within such Fund since the preceding Valuation Date, and (c) Last, deducting transfers to the other investment funds from the Participant's Accounts maintained within such Fund and any withdrawals and distributions (including loans) from his respective Accounts maintained within such Fund since the preceding Valuation Date." 8. Section 5.6(b) of the Plan is amended to read as follows: "(b) 'Net Gains or Losses' shall mean, with respect to Fund 2, 4 or 8, the fair market value of the assets as of the most recent date preceding or coinciding with the current Valuation Date hereunder, over such which was utilized for the prior Valuation Date, less the sum of any deposits plus the sum of any withdrawals, loans, distributions or other deductions, if any, made to pay any expenses incurred with respect to the operations of such Fund." 9. Section 5.10 is amended to read as follows: "5.10 A Participant may elect to transfer all or a portion of the value of his Accounts from one Fund to another (other than to the SFP Stock Fund or Realty Fund); provided, however, that separate elections to transfer separate Participant Accounts within a Fund may not be made. The Participant's election to transfer must be made in writing to the Company and must specify the percentage of his Accounts to be transferred from the Fund in multiples of 25% and must further specify the percentage of such transferred amount that is to be reinvested in one or more other Funds as designated by the Participant also in multiples of 25%. Any such change shall be made operative as of the first Valuation Date which is at least seven working days after the date such election is received by the Company." -5- 6 All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, this Fourth Amendment has been executed on this ____________, 1992, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By:___________________________ Chairman -6- EX-99.4 9 5TH AMENDMENT TO SANTA FE 1 EXHIBIT 99.4 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (FIFTH AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this Fifth Amendment to the Plan is hereby adopted effective as of August 1, 1993: Section 14.2(g) of the Plan is amended to read as follows: "The Plan Administrator shall establish rules concerning the frequency with which loans may be made under the Plan. Such rules, as changed from time to time, shall be applied in a uniform and nondiscriminatory manner and shall be communicated in writing to all eligible Participants." All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument. 2 IN WITNESS WHEREOF, this Fifth Amendment has been executed on this August 10, 1993, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By:________________________________ Chairman -2- EX-99.5 10 6TH AMENDMENT TO SANTA FE 1 EXHIBIT 99.5 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (SIXTH AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this Sixth Amendment to the Plan is hereby adopted effective as provided below: 1. Section 2.8 of the Plan is amended as of January 1, 1994 by adding thereto the following: "In addition to other applicable limitations set forth in the Plan, and notwithstanding any other provision of the Plan to the contrary, for Plan Years beginning on or after January 1, 1994, the annual compensation of each employee taken into account under the Plan shall not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit is $150,000, as adjusted by the Commissioner for increases in the cost of living in accordance with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12. For Plan Years beginning on or after January 1, 1994, any reference in this plan to the limitation under section 401(a)(17) of the Code shall mean the OBRA '93 annual compensation limit set forth in this provision. If compensation for any prior determination period is taken into account in determining an employee's benefits accruing in the current Plan Year, the compensation for that prior determination period is subject to the OBRA '93 annual 2 compensation limit in effect for that prior determination period. For this purpose, for determination periods beginning before the first day of the first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual compensation limit is $150,000." 2. Section VIII of the Plan is amended as of January 1, 1993 by adding thereto a new Section 8.7 to read as follows: "8.7 This Section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this Section, a distributee may elect, at the time and in the manner prescribed by the plan administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. Eligible rollover distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under section 401(a)(9) of the Code; and the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). Eligible retirement plan: An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. Distributee: A distributee includes an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. -2- 3 Direct rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee." All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, this Sixth Amendment has been executed on this December 20, 1994, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By: /s/ [ILLEGIBLE] ________________________________ Chairman -3- EX-99.6 11 7TH AMENDMENT TO SANTA FE 1 EXHIBIT 99.6 SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN (SEVENTH AMENDMENT) WHEREAS, there is reserved to the Employee Benefits Committee of the Company as the Plan Administrator of the Santa Fe Energy Resources Savings Investment Plan (the "Plan") in Section 11.1 of the Plan the right to amend the Plan, subject to certain restrictions set forth therein; and WHEREAS, the Employee Benefits Committee deems it advisable to amend the Plan in the manner hereafter set forth; NOW, THEREFORE, this Seventh Amendment to the Plan is hereby adopted effective as of January 1, 1992, except Item 2 below which shall be effective as of the 1990 Plan Year: 1. The first sentence of Section 4.1 is amended to read as follows: "Each Employee who is eligible to participate in the Plan must, in order to participate, elect to have his Compensation reduced each payroll period by either a whole percentage (not to exceed 12%) or a dollar amount equal to the maximum dollar amount permitted by Section 402(g) of the Code for such Plan Year divided by the number of payroll periods in the Plan Year or, upon a Participant's initial participation following his date of hire or rehire, the number of payroll periods remaining in the Plan Year, and to have the amount by which his Compensation is reduced contributed to the Plan by his Employer on his behalf as before-tax Deferred Contributions." 2. The sixth line of the first paragraph of Section 4.8 is amended by inserting "1/4 of" before "the dollar limitation" on said line. 3. The third paragraph of Section 4.8 is amended to read as follows: "If, as a result of the allocation of forfeitures, a reasonable error in estimating a Participant's compensation, a reasonable error in determining the amount of 401(k) contributions that may be made by a Participant, or such other facts and circumstances as 2 the Commissioner approves, the annual additions exceed the applicable limitations set forth above, the unmatched 401(k) contributions of the Participant shall first be returned to the extent necessary, then the Employer contributions for the Plan Year beginning first with matching contributions which cause the excess (and the income thereon) shall be placed in a suspense account and used to reduce Employer contributions for that Participant for the next Plan Year (and succeeding Plan Years, as necessary) if that Participant is covered by the Plan as of the end of the Plan Year. If the Participant is not covered by the Plan as of the end of the Plan Year, the amount in the suspense account shall be reallocated the next Plan Year to the remaining Participants as additional Employer contributions, subject to the limits of this Section." 4. Subclauses (1) and (3) of the third paragraph of Section 7.2 are amended to read as follows: "(1) Expenses for medical care described in Section 213(d) of the Code incurred by the Participant, the Participant's spouse, or any dependents of the Participant (as defined in Section 152 of the Code) or necessary for such persons to obtain such medical care; . . . . (3) Payment of tuition and related educational expenses for the next 12 months of post-secondary education for the Participant, his spouse, children, or dependents;" 5. Subclause (3) of the fourth paragraph of Section 7.2 is amended to read as follows: "(3) If a withdrawal is to be made from the Participant's Deferred Contributions Account, the Participant's contributions under the Plan and all other plans of the employers (other than welfare benefit plans) will be suspended for 12 months after receipt of the hardship withdrawal and the Participant may not elect Deferred Contributions for the Participant's taxable year immediately following the taxable year of the hardship withdrawal in excess of the applicable limit under Section 402(g) of the Code for such taxable year less the amount of such Participant's Deferred Contributions for the taxable year of the hardship withdrawal; and" 6. The second sentence of the last paragraph of Section 7.2 is amended to read as follows: -2- 3 "The total amount to be so withdrawn shall be that specified in such written notice (which, with respect to a hardship withdrawal, may include any amounts (other than from earnings) necessary to pay any taxes or penalties reasonably anticipated to result from the withdrawal) and such withdrawal shall be made pro rata from the respective investment Funds in which such Account is invested." All terms used herein that are defined in the Plan shall have the same meanings given to such terms in the Plan, except as otherwise expressly provided herein. Except as amended and modified hereby, the Plan shall continue in full force and effect and the Plan and this amendment shall be read, taken and construed as one and the same instrument. This amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, this Seventh Amendment has been executed on this November 10, 1994, effective for all purposes as provided above. PLAN ADMINISTRATOR, SANTA FE ENERGY RESOURCES SAVINGS INVESTMENT PLAN By: /s/ ---------------------------------- Chairman -3- -----END PRIVACY-ENHANCED MESSAGE-----