-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EG7qOIp2RxqhOD8NCTv9RZtEubJU1DehjJAubFj+r+RBzCkxT02kYPXzLC091NQ1 +ZAZIWN3j88bFa2XWTo7Yg== /in/edgar/work/20001102/0000912057-00-046985/0000912057-00-046985.txt : 20001106 0000912057-00-046985.hdr.sgml : 20001106 ACCESSION NUMBER: 0000912057-00-046985 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001102 EFFECTIVENESS DATE: 20001102 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ESENJAY EXPLORATION INC CENTRAL INDEX KEY: 0000901611 STANDARD INDUSTRIAL CLASSIFICATION: [1311 ] IRS NUMBER: 731421000 STATE OF INCORPORATION: OK FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49192 FILM NUMBER: 752171 BUSINESS ADDRESS: STREET 1: 500 N WATER STREET STREET 2: SUITE 1100 CITY: CORPUS CHRISTI STATE: TX ZIP: 78471 BUSINESS PHONE: 5128837464 MAIL ADDRESS: STREET 1: 500 DALLAS STREET STREET 2: SUITE 2920 CITY: HOUSTON STATE: TX ZIP: 77002 FORMER COMPANY: FORMER CONFORMED NAME: FRONTIER NATURAL GAS CORP DATE OF NAME CHANGE: 19931006 S-8 1 a2029308zs-8.txt FORM S-8 As filed with the Securities and Exchange Commission on November 2, 2000. Registration No. 333-________ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ ESENJAY EXPLORATION, INC. (Exact Name of Registrant as Specified in its Charter) ------------------ DELAWARE 73-1421000 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 500 NORTH WATER STREET SUITE 1100 S. CORPUS CHRISTI, TEXAS 78471 (361) 883-7464 (Address of Principal Executive Offices) ------------------ ESENJAY EMPLOYEE SAVINGS PLAN (Full Title of the Plan) ------------------ Name, Address and Telephone Number of Agent for Service: Copy of Communications to: DAVID B. CHRISTOFFERSON SENIOR VICE PRESIDENT, SAMUEL N. ALLEN GENERAL COUNSEL AND CHIEF FINANCIAL OFFICER PORTER & HEDGES, L.L.P. ESENJAY EXPLORATION, INC. 700 LOUISIANA STREET 500 DALLAS, SUITE 2900 HOUSTON, TEXAS 77002-2764 HOUSTON, TEXAS 77002 (713) 226-0600 (713) 739-7100
CALCULATION OF REGISTRATION FEE ================================================================================================================== PROPOSED MAXIMUM PROPOSED AMOUNT TO BE OFFERING MAXIMUM AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.01 per share (3) 250,000 $3.3672 $841,800.00 $222.24 ==================================================================================================================
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate number of shares of Common Stock issuable as a result of the anti- dilution provisions of the Esenjay Employee Savings Plan. (2) Pursuant to Rule 457(h), the registration fee is calculated on the basis of the average of the high and low prices for the Common Stock on the NASDAQ Small-Cap Market on October 31, 2000. (3) Pursuant to Rule 416(c), this Registration Statement also registers an indeterminate amount of plan interests. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The following documents listed under this Part I and the documents incorporated by reference under Item 3 of Part II to this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act, and are incorporated herein by reference. ITEM 1. PLAN INFORMATION The information required to be provided pursuant to this Item to the participants in the Long-Term Incentive Plan is set forth in the Information Memorandum for the Esenjay Employee Savings Plan. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION The written statement required to be provided to participants in the Esenjay Employee Savings Plan pursuant to this Item is set forth in the Information Memorandum for Esenjay Employee Savings Plan referenced in Item 1 above. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The contents of the following documents filed by Esenjay Exploration, Inc., a Delaware corporation ("Esenjay" or the "Registrant"), with the Securities and Exchange Commission (the "Commission") are incorporated into this registration statement ("Registration Statement") by reference: (i) Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999 (as amended by the Annual Report on Form 10-KSB/A filed on May 1, 2000); (ii) Quarterly Report on Form 10-QSB for the quarter ended March 31, 2000; (iii) Quarterly Report on Form 10-QSB for the quarter ended June 30, 2000; and (iv) Current Report on Form 8-K filed on October 2, 2000. All documents filed by us with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the filing date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. We will provide without charge to each participant in the Esenjay Employee Savings Plan, upon written or oral request of such person, a copy (without exhibits, unless such exhibits are specifically incorporated by reference) of any or all of the documents incorporated by reference pursuant to this Item 3. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law ("DGCL") permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he 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 in connection with such action. In a suit brought to obtain a judgment in the corporation's favor, whether by the corporation itself or derivatively by a stockholder, the corporation may only indemnify for expenses, including attorney's fees, actually and reasonably incurred in connection with the defense or settlement of the case, and the corporation may not indemnify for amounts paid in satisfaction of a judgment or in settlement of the claim. In any such action, no indemnification may be paid in respect of any claim, issue or matter as to which such persons shall have been adjudged liable to the corporation except as otherwise provided by the Delaware Court of Chancery or the court in which the claim was brought. In any other type of proceeding, the indemnification may extend to judgments, fines 2 and amounts paid in settlement, actually and reasonably incurred in connection with such other proceeding, as well as to expenses (including attorneys' fees). The statute does not permit indemnification unless the person seeking indemnification has acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interest of the corporation and, in the case of criminal actions or proceedings, the person had no reasonable cause to believe his conduct was unlawful. There are additional limitations applicable to criminal actions and to actions brought by or in the name of the corporation. The determination as to whether a person seeking indemnification has met the required standard of conduct is to be made (i) by a majority vote of a quorum of disinterested members of the board of directors, or (ii) by independent counsel in a written opinion, if such a quorum does not exist or if the disinterested directors so direct, or (iii) by the stockholders. The Certificate of Incorporation and Bylaws of the Company require the Company to indemnify the Company's directors and officers to the fullest extent permitted under Delaware law. The Company's Certificate of Incorporation limits the personal liability of a director to the Company or its stockholders to damages for breach of the director's fiduciary duty. The Company has purchased insurance on behalf of its directors and officers against certain liabilities that may be asserted against, or incurred by, such persons in their capacities as directors or officers of the Registrant or that may arise out of their status as directors or officers of the registrant, including liabilities under the federal and state securities laws. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act, and will be governed by the final adjudication of such issue. The above discussion of the DGCL and our Articles and Bylaws is not intended to be exhaustive and is qualified in its entirety by the DGCL and our Articles and Bylaws. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. 3 ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION - ---------- ----------------------------------------------------------------------------------------------- 4(a)* Summary Plan Description for the Esenjay Employee Savings Plan. 5(a)* Opinion of Porter & Hedges, L.L.P. with respect to legality of securities. 23(a)* Consent of Deloitte & Touche LLP. 23(b)* Consent of Porter & Hedges, L.L.P. (included in Exhibit 5(a)). 24(a) Powers of Attorney (previously filed as Exhibit 24(a) to the Registration Statement on Form S-8 filed on September 29, 2000).
- --------------- * Filed herewith. ITEM 9. UNDERTAKINGS (a) UNDERTAKING TO UPDATE The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to: (i) include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) 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 in the Registration Statement; and (iii) include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4 (b) UNDERTAKING WITH RESPECT TO DOCUMENTS INCORPORATED BY REFERENCE The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act that is incorporated by reference in this 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. (c) UNDERTAKING WITH RESPECT TO INDEMNIFICATION Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on this 2nd day of November, 2000. ESENJAY EXPLORATION, INC. By: /s/ MICHAEL E. JOHNSON ----------------------------------- Michael E. Johnson CHIEF EXECUTIVE OFFICER In accordance with the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated and on this 2nd day of November, 2000.
SIGNATURE TITLE --------- ----- * Chief Executive Officer and Director ------------------------------------------ (principal executive officer) Michael E. Johnson /s/ DAVID B. CHRISTOFFERSON Senior Vice President, General Counsel ------------------------------------------ and Chief Financial Officer (principal David B. Christofferson financial officer) * Controller and Principal Accounting ------------------------------------------ Officer Angela D. Conway
5
SIGNATURE TITLE --------- ----- * Chairman and Director ------------------------------------------ David W. Berry ------------------------------------------ Director Alex B. Campbell * Director ------------------------------------------ William D. Dodge, III ------------------------------------------ Director Alex M. Cranberg * Director ------------------------------------------ Jeffery B. Pollicoff ------------------------------------------ Director Jack P. Randall * Director ------------------------------------------ Hobart A. Smith */s/ DAVID B. CHRISTOFFERSON ------------------------------------------ By: David B. Christofferson Attorney-in-Fact
6 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION - ---------- ------------------------------------------------------------------------------------------------- 4(a)* Summary Plan Description for the Esenjay Employee Savings Plan. 5(a)* Opinion of Porter & Hedges, L.L.P. with respect to legality of securities. 23(a)* Consent of Deloitte & Touche LLP. 23(b)* Consent of Porter & Hedges, L.L.P. (included in Exhibit 5(a)). 24(a) Powers of Attorney (previously filed as Exhibit 24(a) to the Registration Statement on Form S-8 filed on September 29, 2000).
- ---------------------- * Filed herewith. 7 EX-4.(A) 2 a2029308zex-4_a.txt EXHIBIT 4(A) EXHIBIT 4(a) ESENJAY EMPLOYEE SAVINGS PLAN SUMMARY PLAN DESCRIPTION OCTOBER 1, 1998 SUMMARY PLAN DESCRIPTION TABLE OF CONTENTS
PAGE ---- I INTRODUCTION...................................................................................1 II PLAN DATA......................................................................................1 Agent For Service Of Legal Process.............................................................1 Effective Date.................................................................................1 Employer.......................................................................................1 Plan Administrator.............................................................................1 Plan Year......................................................................................1 Trustee........................................................................................1 Type Of Administration.........................................................................1 III DEFINITIONS...................................................................................1 Break In Service...............................................................................1 Compensation...................................................................................2 Disability.....................................................................................2 Early Retirement...............................................................................2 Effective Date.................................................................................2 Elective Deferral..............................................................................2 Entry Date.....................................................................................2 Family Member..................................................................................2 Highly Compensated Employee....................................................................2 Hour Of Service................................................................................3 Maternity/Paternity Leave......................................................................3 Normal Retirement Age..........................................................................3 Spouse.........................................................................................3 Year Of Service................................................................................4 IV ELIGIBILITY REQUIREMENTS AND PARTICIPATION....................................................4 V EMPLOYEE CONTRIBUTIONS.........................................................................4 Elective Deferrals.............................................................................4 Voluntary Contributions........................................................................5 Rollover And Transfer Contributions............................................................5 VI EMPLOYER CONTRIBUTIONS.........................................................................5 Contribution Formula...........................................................................5 Eligibility For Allocation.....................................................................6 VII GOVERNMENT REGULATIONS.......................................................................6 VIII PARTICIPANT ACCOUNTS........................................................................7 i IX VESTING........................................................................................8 Determining Vested Benefit.....................................................................8 Payment Of Vested Benefit......................................................................8 Loss Of Benefits...............................................................................9 Timing Of Forfeitures..........................................................................9 Reemployment...................................................................................9 X TOP-HEAVY RULES...............................................................................10 XI RETIREMENT BENEFITS AND DISTRIBUTIONS.........................................................11 Retirement Benefits...........................................................................11 Distributions During Employment...............................................................11 Hardship Withdrawals..........................................................................11 Beneficiary...................................................................................12 Death Benefits................................................................................13 Form Of Payment...............................................................................13 Rollover of Payment...........................................................................13 Time Of Payment...............................................................................14 Joint and Survivor Annuity Rules..............................................................14 XII INVESTMENTS.................................................................................15 Trust Fund....................................................................................15 Investment Responsibility.....................................................................15 Employee Investment Direction.................................................................16 Participant Loans.............................................................................16 XIII ADMINISTRATION.............................................................................16 Plan Administrator............................................................................16 XIV AMENDMENT AND TERMINATION...................................................................17 XV LEGAL PROVISIONS..............................................................................18 Rights Of Participants........................................................................18 Fiduciary Responsibility......................................................................18 Employment Rights.............................................................................19 Benefit Insurance.............................................................................19 Claims Procedure..............................................................................19 Assignment....................................................................................19 Questions.....................................................................................20 Conflicts With Plan...........................................................................20
ii I. INTRODUCTION Your Employer has established a retirement plan to help supplement your retirement income. Under the program, the Employer makes contributions to a Trust Fund which will pay you a benefit at retirement. Details about how the Plan works are contained in this summary. While the summary describes the principal provisions of the Plan, it does not include every limitation or detail. If there is a discrepancy between this booklet and the official Plan document, the Plan document shall govern. You may obtain a copy of the Plan document from the Plan Administrator. The Plan Administrator may charge a reasonable fee for providing you with the copy. II. PLAN DATA A. AGENT FOR SERVICE OF LEGAL PROCESS: The Employer or Trustee. B. EFFECTIVE DATE: The Effective Date of the original Plan was April 1, 1994; the Effective Date of the amended Plan is October 1, 1998. C. EMPLOYER: Esenjay Exploration, Inc. Address: 500 Dallas, Suite 2920 One Allen Center Houston, Tx 77002 Telephone No.: (713)739-7100 Tax I.D. No.: 73-1421000 Plan No.: 001 D. PLAN ADMINISTRATOR: The Employer is the Plan Administrator. E. PLAN YEAR: The 12-month period beginning on January 1 and ending on December 31. F. TRUSTEE(S): Frost National Bank Address: P. O. Box 1315, Houston, Texas 77251 Telephone No.: (713) 652-7852 G. TYPE OF ADMINISTRATION: Trust Fund. III. DEFINITIONS A. BREAK IN SERVICE. A Plan Year during which you are not credited with or are not paid for more than 500 hours. If you go into the military service of the United States, you are not considered terminated as long as you return to work within the time required by law. If you separate from employment and incur a Break in 1 Service, all contributions to your various accounts are suspended. [See special rules relating to maternity and paternity leave below. Also, see Section VI(B) to determine your eligibility to share in the Employer's Contribution if you separate from employment, but do not incur a Break in Service.] If a Break in Service occurs and you return to full time employment with the Employer, your rights are explained in the section entitled "Vesting". B. COMPENSATION. Your total salary, pay, or earned income from the Employer, as reflected on tax Form W-2, even if not subject to withholding taxes when earned. Compensation will include amounts received by you during the calendar year. Compensation shall include amounts deferred under 401(k) plans and Section 125 cafeteria plans. Compensation shall be limited to $150,000 as adjusted for inflation. C. DISABILITY. A potentially permanent illness or injury, as certified to by a physician who is approved by the Employer, which prevents you from engaging in work for which you are qualified for a period of at least 12 months. D. EARLY RETIREMENT. You may retire early upon reaching age 55 and completion of 5 Years of Service. If you terminate employment after completing the required number of Years of Service, but before attaining the required age, you may elect Early Retirement after attaining the required age. E. EFFECTIVE DATE. The date on which the Plan starts or an amendment is effective. F. ELECTIVE DEFERRAL. Employer contributions made to the Plan at your election, instead of being given to you in cash as part of your salary. You can elect to defer a portion of your salary, instead of receiving it in cash, and your Employer will contribute it to the Plan on your behalf. G. ENTRY DATE. The date on which you enter the Plan. Your Entry Date will be the first day of the Plan Year, or the first day of the fourth month, the first day of the seventh month, or the first day of the tenth month of the Plan Year coinciding with or following the date you satisfy the eligibility requirements. H. FAMILY MEMBER. The Spouse or lineal ascendant or descendant (or Spouse thereof) of either a more than 5% owner of the Employer or one of the ten highest compensated Highly Compensated Employees of the Employer. 2 I. HIGHLY COMPENSATED EMPLOYEE. Any Employee who during the current or prior Plan Year (1) was a more than 5% owner, (2) received more than $75,000 in Compensation as adjusted for inflation (3) received more than $50,000 in Compensation as adjusted for inflation and was in the top 20% of Employees when ranked by Compensation, or (4) was an officer receiving more than $45,000 in Compensation as adjusted for inflation. Family Members of any 5% owner, or Highly Compensated Employee in the group of the ten Employees with the greatest Compensation, will be combined as if they were one person for purposes of Compensation and contributions. If you are not currently or never were Highly Compensated, or a Family Member of a Highly Compensated Employee, you are a Non-highly Compensated Employee. J. HOUR OF SERVICE. You will receive credit for each hour you are (1) paid for being on your job, (2) paid even if you are not at work (vacation, sickness, leave of absence, or disability), or (3) paid for back pay if hours were not already counted. A maximum of 501 hours will be credited in any year for periods during which you are not at work but are paid. Hours of Service will be calculated based on actual hours you are entitled to payment. Your Hours of Service with Esenjay Petroleum Corp. are included for eligibility and vesting in this Plan. K. MATERNITY/PATERNITY LEAVE. You may be eligible for additional Hours of Service if you leave employment, even if temporarily, due to childbirth or adoption. If this is the case, you will be credited with enough hours (up to 501) of service to prevent a Break in Service, either in the year you leave employment or the following year. For example, if you have 750 Hours of Service in the year that your child is born, you would not get any more hours credited for that Plan Year since you do not have a Break in Service. Therefore, if you do not return to employment the following year, you will get 501 Hours of Service so you will not have a Break in Service in that year. Alternatively, if you do return the following year, but work only 300 hours, you will receive an additional 201 hours in order to prevent a break. These Hours of Service for maternity or paternity leave must all be used in one Plan Year. They are used only to prevent a Break in Service and not for calculating your Years of Service for eligibility, vesting or benefits. L. NORMAL RETIREMENT AGE. The attainment of age 65, or, if later, the 5 anniversary of the first day of the Plan Year during which you entered the Plan. M. SPOUSE. The person to whom you are or were legally married, or your common law Spouse if common law marriage is recognized by the state in which you live. In order for your Spouse to receive a benefit under this Plan, he or she may not predecease you. A 3 former Spouse may be treated as a "Spouse" under this definition if recognized as such under a Qualified Domestic Relations Order as explained at Section XV(F) of this Summary Plan Description. N. YEAR OF SERVICE. ELIGIBILITY For purposes of determining your eligibility to participate in the Plan, a Year of Service is a 12-consecutive month period beginning on your date of hire during which you are credited with at least 1 Hours of Service. CONTRIBUTION For purposes of determining whether or not you are entitled to have a contribution allocated to your account, a Year of Service is a 12-consecutive month period, which is the same as the Plan Year, during which you are credited with at least 1 Hours of Service. VESTING For purposes of determining the extent to which you are vested in your account balance, a Year of Service is a 12-consecutive month period, which is the same as the Plan Year, during which you are credited with 1000 Hours of Service. IV. ELIGIBILITY REQUIREMENTS AND PARTICIPATION You are eligible to participate in this Plan upon completing 6 mos. Years of Service and attaining age 21. You are considered to have completed 1 Year of Service for purposes of eligibility on the aniversary of your first day of employment, provided that you worked at least 1 hours during that 12-month period. The subsequent measuring periods will be based on your employment year and anniversaries thereof. Your participation in the Plan will begin on the Entry Date defined at Section III. V. EMPLOYEE CONTRIBUTIONS A. ELECTIVE DEFERRALS You, as an eligible Employee, may authorize the Employer to withhold from 1% up to 10% of your Compensation plus up to 100% of any Employer paid cash bonus, not to exceed $7,000 as 4 adjusted for inflation, and to deposit such amount in the Plan fund. If you participate in a similar plan of an unrelated employer and your Elective Deferrals under this Plan and the other plan exceed the $7,000 limit, for a given year you must designate one of the Plans as receiving an excess amount. If you choose this Plan as the one receiving the excess, you must notify the Plan Administrator by March 1 of the following year so that the excess and any income thereon may be returned to you by April 15. You may terminate your Elective Deferrals at any time. You may increase or decrease your Elective Deferral percentage upon 30 days notice to the Employer. If you terminate contributions, you may not reinstate payroll withholding for a period of three(3) months. The Employer may also reduce or terminate your withholding if required to maintain the Plan's qualified status. B. VOLUNTARY CONTRIBUTIONS You may not make personal after-tax contributions to the Plan. C. ROLLOVER AND TRANSFER CONTRIBUTIONS Rollover and Transfer Contributions are permitted. You may make a Rollover or Transfer Contribution prior to becoming a Participant. A rollover or transfer of your retirement benefits may originate from another qualified retirement plan or special individual retirement arrangement (known as a `conduit' IRA) to this Plan. If you have already received a lump-sum payment from another qualified retirement plan, or if you received payment from another qualified plan and placed it in a separate `conduit' IRA, you may be eligible to redeposit that payment to this Plan. The last day you may make a Rollover Contribution to this Plan is the 60th day after you receive the distribution from the other plan or IRA. A transfer occurs when the trustee of the old plan transfers your assets to this Plan. If you believe you qualify for a transfer or rollover, see the Plan Administrator for more details. VI. EMPLOYER CONTRIBUTIONS A. CONTRIBUTION FORMULA ELECTIVE DEFERRALS: The Employer will contribute all Compensation which you elect to defer to the Plan within the limits outlined in Section V(A). 5 MATCHING CONTRIBUTIONS: The Employer may make a Matching Contribution to each Participant based on his or her Elective Deferrals in a percentage set by the Employer prior to the end of each Plan Year. The Employer shall not match your Elective Deferrals that are in excess of 10% of your Compensation. The time period which will be used for determining the amount of Matching Contributions owed shall be monthly. Employer Matching Contributions will only be made on Elective Deferrals made to the Plan. QUALIFIED NON-ELECTIVE CONTRIBUTIONS: The Employer may also contribute an additional amount determined in its sole judgement. This additional contribution, if any, will be allocated to only Non-highly Compensated Participants, in proportion to each eligible Employee's Compensation as a ratio of all eligible Employees' Compensation. These Contributions will be non-forfeitable and subject to withdrawal restrictions. DISCRETIONARY: The Employer may also contribute an additional amount determined in its sole judgement. Such additional contribution, if any, shall be allocated to each Participant in proportion to his or her Compensation for the calendar year. B. ELIGIBILITY FOR ALLOCATION The Employer's Contribution will be made to all Participants who are employed at the end of the Plan Year provided that the Participant has completed 1 Hours of Service during the Plan Year. The Employer shall also make matching and other related contributions as indicated below to Employees who terminate during the Plan Year as a result of: MATCHING OTHER x x Retirement. x x Disability. x x Death. x x Other termination of employment without regard to the number of Hours of Service the Participant has completed. 6 VII. GOVERNMENT REGULATIONS The federal government sets certain limitations on the level of contributions which may be made to a Plan such as this. There is also a "percentage" limitation which means that the percentage of Compensation which you may contribute (Elective Deferrals) depends on the average percentage of Compensation that the other Participants are contributing. Simply stated, all Participants are divided into 2 categories: Highly Compensated and Non-highly Compensated and the average for each group is calculated. The average contribution that the Highly Compensated may make is based on the average contribution that the Non-highly Compensated make. If a Highly Compensated Participant is contributing more than he or she is allowed, the excess, plus or minus any gain or loss, will be returned. Keep in mind that if you are a 5% owner of the business or one of the ten highest paid Highly Compensated employees, your Family Member's contribution percentages and Compensations will be combined with yours for purposes of determining your contributions under the Plan. VIII. PARTICIPANT ACCOUNTS The Employer will set up a record keeping account in your name to show the value of your retirement benefit. The Employer will make the following additions to your account: A. your allocated share of the Employer's Contribution (including your Elective Deferrals), B. your share of investment earnings and appreciation in the value of investments, C. the amount of your personal Transfer Contributions and Rollover Contributions, if any The Employer will make the following subtractions from your account: D. any withdrawals or distributions made to you, E. your share of investment losses and depreciation in the value of investments, and F. your share of administrative fees and expenses paid out of the Plan, if applicable, 7 The Employer will value the following types of contributions in your account as indicated below: TYPE OF CONTRIBUTION VALUATION DATE(S) Elective Deferrals ((i)) Matching ((i)) Qual. Non-Elective ((i)) Non-Elective ((i)) Valuation Date Options: (i) Daily (ii) Weekly (iii) Monthly (iv) Bi-Monthly (v) Quarterly (vi) Semi-Annually (vii) Annually The Employer will provide you with a statement of account activity at least once annually. IX. VESTING A. DETERMINING VESTED BENEFIT Vesting refers to your earning or acquiring a non-forfeitable right to the full amount of your account. Any Elective Deferrals, Qualified Non-Elective Contributions, Rollover Contributions, Transfer Contributions, plus or minus any earnings or losses, are always 100% vested and cannot be forfeited for any reason. Any contribution not listed in the previous sentence, and the earnings or losses thereon, will vest in accordance with the following table: YEARS OF SERVICE ------------------------------------------------------- 1 2 3 4 5 6 7 --- --- --- --- --- --- --- 20% 40% 60% 80% 100% You are considered to have completed 1 Year of Service for purposes of vesting upon the completion of 1000 Hours of Service at any time during a Plan Year. You automatically become fully vested, regardless of the vesting table, upon attainment of Normal Retirement Age, Early Retirement Age, upon retirement due to Disability, upon death, and upon termination of the Plan. B. PAYMENT OF VESTED BENEFIT If you separate from Service before your retirement, death or Disability, you may request early payment of your vested benefit by submitting a written request to the Plan Administrator. If your vested account balance at the time of termination or at the time of any prior distributions exceeds or exceeded $3,500, you may defer 8 the payment of your benefit until April 1 of the calendar year following the calendar year during which you attain age 70 1/2. The portion of your account balance to which you are not vested is called a `forfeiture' and remains in the Plan to pay Plan administration expenses. C. LOSS OF BENEFITS There are only two events which can cause the loss of all or a portion of your account. One is termination of employment before you are 100% vested according to the vesting provisions described at IX(A) and the other is a decrease in the value of your account from investment losses or administrative expenses and other costsof maintaining the Plan. D. TIMING OF FORFEITURES If you terminate employment and receive payment of the vested portion of your account the non-vested portion of your account will be forfeited at the time you receive your payment. If you have not received a distribution of your entire vested balance, your non-vested portion will be forfeited at the end of the Plan Year during which you incur your fifth consecutive 1-year Break in Service. E. REEMPLOYMENT If you terminate service with your Employer, then are later reemployed, you will become a Participant as of the earlier of the next Valuation Date or the next Entry Date [see Section III] following your return to employment. If you are not a member of a class of employees eligible to participate in the Plan and later become a member of the eligible class, you will participate immediately if you have satisfied the minimum age and service requirements. Should you become ineligible to share in future Contributions and forfeitures because you are no longer a member of an eligible class, you shall again share upon your return to an eligible class. All years of prior Service will be counted when calculating your vested percentage in your new account balance. The following rules apply in connection with reemployed Participants. TERMINATED PARTIALLY VESTED PARTICIPANTS. If you terminate employment and receive payment of the vested portion of your account the non-vested portion of your account will be forfeited at the time you receive your payment. If you are reemployed prior to incurring five consecutive 1-year Breaks in Service you may have the Plan restore your forfeiture by repaying the amount of the distribution you received attributable to Employer contributions. This repayment right applies only if you do not incur five 9 consecutive 1-year Breaks in Service. You must make this repayment within five years of your date of reemployment. If you do not repay the amount you received, the forfeited portion will not be restored to your account. Whether you repay or not, your prior Service will count toward vesting service for future Employer contributions. FOR EXAMPLE, assume that you terminate your job with your current Employer. At the time of termination you had accrued a total benefit of $10,000 under the retirement Plan. Although this amount had been allocated to your account, you were only 40% vested in that amount when you left. You decided to take a distribution of your vested account balance (40% of $10,000, or $4,000) when you quit. The non-vested balance of your account ($6,000) was forfeited. Three years later, you became reemployed by the same Employer. Since you were reemployed within 5 years, you have the right to repay the $4,000 distribution you received when you quit. You would have to repay the $4,000 within 5 years of being rehired. If you do so, the non-vested portion of your account ($6,000) will be restored to your account. After restoration, you will be vested in 40% of this account, but your vested percentage will increase based on your Years of Service after your reemployment. Your prior Service will ALWAYS count towards vesting of Employer Contributions which you receive after reemployment, whether or not you decide to repay and restore your prior account. TERMINATED NON-VESTED PARTICIPANTS. If you were not vested in any portion of your Employer Contribution account prior to your separation from service and are reemployed before incurring five consecutive one-year Breaks in Service, you will be credited for vesting with all pre-break and post-break service. Your prior unpaid account balance will automatically be restored and you will continue to vest in that account. If you are reemployed after incurring five consecutive one-year Breaks in Service, you will lose your prior account balance, but your pre-break Years of Service will count towards vesting, in your new account balance. X. TOP-HEAVY RULES A `top-heavy' plan is one in which more than 60% of the contributions or benefits are attributable to certain `key employees', such as owners, officers and stockholders. The Plan Administrator is responsible for determining each year if the Plan is `top-heavy'. If the Plan becomes top-heavy special rules apply to the allocation of the Employer's contribution. These special rules require that only Participants who are not key employees will generally receive an allocation of the Employer's contribution equal to 3% of compensation, or if less, the greatest percentage allocated to the account of any key employee. All participants are entitled to receive a minimum allocation upon completing at least one 10 Hour of Service in the top-heavy Plan Year provided they are employed on the last day of the Plan Year. The Employer's minimum contribution can be satisfied by another Employer sponsored retirement plan, if so elected by the Employer. The following vesting schedule shall apply for the Plan Year the Plan becomes top-heavy, for any type of Employer Contribution, unless the Employer has already elected a faster schedule: YEARS OF SERVICE ----------------------------------------------------- 1 2 3 4 5 6 ----- ----- ----- ----- ----- ----- 0% 20% 40% 60% 80% 100% XI. RETIREMENT BENEFITS AND DISTRIBUTIONS A. RETIREMENT BENEFITS The full value of your account balance is payable at your Normal Retirement Age, even if you continue to work, or you may defer payment until April 1 following the year you reach age 70-1/2. If you work beyonD your Normal Retirement Age, you will continue to fully participate in the Plan. B. DISTRIBUTIONS DURING EMPLOYMENT Upon attainment of age 59-1/2, benefits attributable to EmployeR contributions, allocated to your account(s) in excess of two years, are available for withdrawal if you are 100% vested in those benefits. If applicable, benefits attributable to your Voluntary Contributions under the Plan plus any rollovers are available for withdrawal upon request to the Plan Administrator. Transfer Contributions may be withdrawn only if they originate from plans meeting certain safe harbor provisions. C. HARDSHIP WITHDRAWALS You may file a written request for a hardship withdrawal of the portion of your account balance attributable to Elective Deferrals and certain Employer Contributions. Earnings on Elective Deferrals up to the last day of the Plan Year prior to July 1, 1989 may be included in any hardship withdrawal, but earnings on Elective Deferrals after that date may not be included. You must generally have your Spouse's written consent for a hardship withdrawal unless you are advised otherwise by the Plan Administrator. Prior to receiving a hardship distribution, you must take any other distribution and borrow the maximum non-taxable loan amount allowed under this and any other plans of the Employer. Note, however, that if the effect of the loan would be to increase the amount of your financial need, you are not required to 11 take the loan. For example, if you need funds to purchase a principal residence, and a plan loan would disqualify you from obtaining other necessary financing, you do not have to take the loan. Hardship withdrawals may be authorized by the Employer for the following reasons: 1. to assist you in purchasing a personal residence which is your primary place of residence (not including mortgage payments), 2. to assist you in paying tuition and any other educational expenses for you, your Spouse, or your dependents, for the next twelve months of post-secondary education, 3. to assist you in paying expenses incurred or necessary on behalf of you, your Spouse, or your dependents for hospitalization, doctor or surgery expenses which are not covered by insurance, or 4. to prevent your eviction from or foreclosure on your principal residence. Any hardship distribution is limited to the amount needed to meet the financial need. Hardship withdrawals must be approved by the Employer and will be administered in a non-discriminatory manner. Such withdrawals will not affect your eligibility to continue to participate in Employer Contributions to the Plan, although, your right to make Voluntary Contributions and Elective Deferrals will be suspended for twelve months. Any withdrawals you receive under these rules may not be recontributed to the Plan and may be subject to taxation, as well as an additional 10% penalty tax if the withdrawal is received before you reach age 59-1/2. These payments shall also be subject to a mandatory 20% withholding for income tax purposes. D. BENEFICIARY Every Participant or former Participant with Plan benefits may designate a person or persons who are to receive benefits under the Plan in the event of his or her death. The designation must be made on a form provided by and returned to the Plan Administrator. You may change your designation at any time. If you are married, your beneficiary will automatically be your Spouse. If you and your Spouse wish to waive this automatic designation, you must complete a beneficiary designation form. The form must be signed by you and, if applicable, your Spouse in front of a Plan representative or a Notary Public. 12 E. DEATH BENEFITS In the event of your death, the full value of your account is payable to your beneficiary in a lump sum, or in installments payable over any period which does not exceed the life expectancy of your beneficiary. The benefit may also be paid in the form of an annuity. If you die after benefit payments have started under an installment option and after the attainment of age 70-1/2, your beneficiary will continue tO receive payments in accordance with the payment option you selected. F. FORM OF PAYMENT When benefits become due, you or your representative should apply to the Employer requesting payment of your account and specifying the manner of payment. If you are married and your account balance exceeds $3,500, the normal or automatic form of payment is a joint and survivor annuity with a percentage of your benefit continuing to your Spouse upon your death. If you are not married, the normal form of benefit is a life annuity based on your life. If you do not wish to receive the normal form of payment whenyour payments are due to start, you may request to receive your benefit in any of the optional forms indicated: >> lump sum. >> installment payments. G. ROLLOVER OF PAYMENT If your benefits qualify as eligible rollovers, you have the option of having them paid directly to you, when they become due, or having them directly rolled over to another qualified plan or an IRA. If you do not choose to have the benefits directly rolled over, the Plan is required to automatically withhold 20% of your payment for tax purposes. If you do choose to have the payment made to you, you still have the option of rolling over the payment yourself to a qualified plan or an IRA within sixty days (first check with a tax advisor to make sure it is an eligible rollover). However, 20% of your payment will still be withheld. The following example illustrates how this works: For example, if you have $100,000 in your vested account balance and choose to have the payment of your benefits made directly to an IRA or another qualified plan, the entire $100,000 will be transferred to the trustee of the other plan or the IRA, and you will treat the entire amount as a rollover on your tax return so that you will not pay taxes on the entire amount. If you choose NOT to have the account transferred directly to an IRA or qualified plan, 20% or $20,000 will automatically be withheld from your payment. Thus, 13 you will receive only $80,000 as a distribution of your benefits. In order to roll the entire amount over into your IRA, you would have to come up with $20,000 out of your own pocket to make up the difference. If this is done, the $20,000 which was withheld may be returned when you file your taxes at the end of the year. However, if you are unable to produce the extra cash, the rollover amount will only be $80,000, and the other $20,000 which was withheld will be treated as taxable income to you. If you are under age 59 1/2 when you receive your benefit payment, the withheld amount will alSO be subject to the 10% early distribution penalty. Certain benefit payments are not eligible for rollover and therefore will also not be subject to the 20% mandatory withholding. They are as follows: 1. annuities paid over life; 2. installments for a period of at least 10 years; and 3. minimum required distributions at age 70 1/2. There are also several operational exceptions and a "de minimis" exception for payments of less than $200. Also Employee Voluntary contributions are not eligible for rollover. H. TIME OF PAYMENT If you retire, become disabled, or die, payments will start as soon as administratively feasible following the date on which a distribution is requested by you or is otherwise payable. If you terminate for a reason other than death, Disability, or retirement, payments will start as soon as administratively feasible following the date on which a distribution is requested by you or is otherwise payable. I. JOINT AND SURVIVOR ANNUITY RULES RETIREMENT BENEFITS If the benefit under the Plan is payable in the form of an annuity, the Plan is subject to the joint and survivor annuity rules. Under these rules, there are two automatic methods of payment for vested Participants depending on your marital status. If you do not choose another form of payment (such as a lump sum or installments), the normal form of payment is a straight life annuity if you are not married at the commencement of your benefit, or a qualified joint and survivor annuity if you are married. Under a straight life annuity, you will receive equal monthly payments for as long as you live. No further payments will be made after your death. Under a 14 qualified joint and survivor annuity, you will receive a reduced benefit each month for your lifetime. After you die, % of that amount will be paid each month to your Spouse for his or her lifetime. The amount of your monthly benefit is reduced under a joint and survivor annuity because it is expected that payments will be made over two lifetimes instead of one. You may choose another form of payment by filling out the proper form and returning it to the Plan Administrator. In order to choose another form of payment or a beneficiary other than your Spouse, you must make a proper election, with your Spouse's written consent. Your Spouse's consent must be witnessed by a Plan representative or Notary Public. Written notice of these rules will be provided to you on a timely basis. DEATH BENEFITS If you die while still employed by the Employer, or die after you retire or terminate employment but before benefit payments start, your surviving Spouse will be entitled to a life annuity based on the full value of your account. These payments will continue for your spouse's lifetime unless he or she chooses to accelerate such payments. Again, you and your Spouse can waive this coverage by obtaining the proper form from the Plan Administrator and completing it. XII. INVESTMENTS A. TRUST FUND The monies contributed to the Plan may be invested in any security or form of property considered prudent for a retirement plan. Such investments include, but are not limited to, common and preferred stocks, exchange traded put and call options, bonds, money market instruments, mutual funds, savings accounts, certificates of deposit, Treasury bills, or insurance contracts. An institutional Trustee may invest in its own deposits or those of affiliates which bear a reasonable interest rate, or in a group or collective trust maintained by such Trustee. B. INVESTMENT RESPONSIBILITY The Plan's assets are held by the Trustee who is identified in Section II of this Summary. The Trustee is responsible for the safekeeping of Plan assets and for the investment management of such assets unless the Employer elects to direct investments, appoints an outside investment manager or permits Participants to direct the investment of their individual accounts. 15 C. EMPLOYEE INVESTMENT DIRECTION Participants may direct the investments of their accounts among any allowable investments. The investment funds available to you and the procedures for making an election are shown in a separate Investment Election Form which can be obtained from the Plan Administrator. You may change your investment selection and move monies from one fund to another in accordance with the rules established by the Plan Administrator. D. PARTICIPANT LOANS Participant loans are permitted under the Plan. In order to get a loan from the Plan, you must make application to the Plan Administrator. Loans must be approved by the Plan Administrator and are subject to a strict set of rules established by law. The rules are covered in a separate Loan Application Form and Promissory Note Form. These Forms are available from the Plan Administrator. XIII. ADMINISTRATION The Plan will be administered by the following parties: A. PLAN ADMINISTRATOR 1. The Employer is the party who has established the Plan and who has overall control and authority over administration of the Plan. The Employer's duties as Plan Administrator include: 2. appointing the Plan's professional advisors needed to administer the Plan including, but not limited to, an accountant, attorney, actuary, or administrator, 3. directing the Trustee with respect to payments from the Fund, 4. communicating with Employees regarding their participation and benefits under the Plan, including the administration of all claims procedures and domestic relations orders, 5. filing any returns and reports with the Internal Revenue Service, Department of Labor, or any other governmental agency, 16 6. reviewing and approving any financial reports, investment reviews, or other reports prepared by any party appointed by the Employer, 7. establishing a funding policy and investment objectives consistent with the purposes of the Plan and the Employee Retirement Income Security Act of 1974, and 8. construing and resolving any question of Plan interpretation. The Plan Administrator's interpretation and application thereof is final. B. TRUSTEE The Trustee shall be responsible for the administration of investments held in the Fund. These duties shall include: 1. receiving contributions under the terms of the Plan, 2. investing Plan assets unless investment responsibility is delegated to another party by the Employer, 3. making distributions from the Fund in accordance with written instructions received from the Plan Administrator, 4. keeping accounts and records of the financial transactions of the Fund, and 5. rendering an annual report of the Fund showing the financial transactions for the Plan Year. XIV. AMENDMENT AND TERMINATION The Employer may amend the Plan at any time, provided that no amendment will divert any part of the Plan's assets to any purpose other than for the exclusive benefit of you and the other Participants in the Plan or eliminate an optional form of distribution. The Employer may also terminate the Plan. In the event of an actual Plan termination, all amounts credited to your account will be fully vested and will be paid to you. Depending on the facts and circumstances, a partial termination may be found to occur where a significant number of Employees are terminated by the Employer or excluded from Plan participation. In case of a partial termination, only those affected will become 100% vested. 17 XV. LEGAL PROVISIONS A. RIGHTS OF PARTICIPANTS As a Plan Participant, you have certain rights and protection under the Employee Retirement Income Security Act of 1974 (ERISA). The law says that you are entitled to: 1. Examine, without charge, all documents relating to the operation of the Plan and any documents filed with the U.S. Department of Labor. These documents are available for review in the Employer's offices during regular business hours. 2. Obtain copies of all Plan documents and other Plan information upon written request to the Employer. The Employer may impose a reasonable charge for producing the copies. 3. Receive from the Employer at least once each year a summary of the Plan's annual financial report. 4. Obtain, at least once a year, a statement of the total benefits accrued for you, and your non-forfeitable (vested) benefits, if any. The Plan provides that you will receive this statement automatically. If you are not vested, you may request a statement showing the date when your account will begin to become non-forfeitable. 5. File suit in a federal court, if any materials requested are not received within 30 days of your request, unless the materials were not sent because of matters beyond the control of the Employer. If you are improperly denied access to information you are entitled to receive, the Employer may be required to pay up to $100 for each day's delay until the information is provided to you. B. FIDUCIARY RESPONSIBILITY ERISA also imposes obligations upon the persons who are responsible for the operation of the Plan. These persons are referred to as "fiduciaries." Fiduciaries must act solely in your interest as a Plan Participant and they must exercise prudence in the performance of their duties. Fiduciaries who violate ERISA may be removed and required to reimburse any losses they have caused you or other Participants in the Plan. 18 C. EMPLOYMENT RIGHTS Participation in the Plan is not a guarantee of employment. However, the Employer may not fire you or discriminate against you to prevent you from becoming eligible for the Plan or from obtaining a benefit or exercising your rights under ERISA. D. BENEFIT INSURANCE Your benefits under this Plan are not insured by the Pension Benefit Guaranty Corporation since the law does not require plan termination insurance for this type of Plan. E. CLAIMS PROCEDURE If you feel you are entitled to a benefit under the Plan, mail or deliver your written claim to the Plan Administrator. The Plan Administrator will notify you, your beneficiary, or authorized representative of the action taken within 60 days of receipt of the claim. If you believe that you are being improperly denied a benefit in full or in part, the Employer must give you a written explanation of the reason for the denial. If the Employer denies your claim, you may, within 60 days after receiving the denial, submit a written request asking the Employer to review your claim for benefits. Any such request should be accompanied by documents or records in support of your appeal. You, your beneficiary, or your authorized representative may review pertinent documents and submit issues and comments in writing. If you get no satisfaction from the Employer, you have the right to request assistance from the U.S. Department of Labor or you can file suit in a state or federal court. Service of legal process may be made upon the Plan Trustee or the Plan Administrator. If you are successful in your lawsuit, the court may require the Employer to pay your legal costs, including your attorney's fees. If you lose, and the court finds that your claim is frivolous, you may be required to pay the Employer's legal fees. F. ASSIGNMENT Your rights and benefits under this Plan cannot be assigned, sold, transferred or pledged by you or reached by your creditors or anyone else except under a qualified domestic relations order or as provided by state law. A qualified domestic relations order (QDRO) is a court order issued under state domestic relations law relating to divorce, legal separation, custody, or support proceedings. The QDRO recognizes the right of someone other than you to receive your Plan benefits. You will be notified if a QDRO relating to your Plan benefits is received. Receipt of a qualified domestic relations order shall allow for an earlier than 19 normal distribution to the person(s) other than the Participant listed in the order. G. QUESTIONS If you have any questions about this statement of your rights under ERISA, please contact the Employer or the Pension and Welfare Benefits Administration, Room N-5644, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210. H. CONFLICTS WITH PLAN This booklet is not the Plan document, but only a Summary Plan Description of its principal provisions and not every limitation or detail of the Plan is included. Every attempt has been made to provide concise and accurate information. However, if there is a discrepancy between this booklet and the official Plan document, the Plan document shall prevail. 20 EX-5.(A) 3 a2029308zex-5_a.txt EXHIBIT 5(A) EXHIBIT 5(a) [P&H Letterhead] November 2 , 2000 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: ESENJAY EXPLORATION, INC. REGISTRATION STATEMENT ON FORM S-8; ESENJAY EMPLOYEE SAVINGS PLAN Ladies and Gentlemen: We have acted as counsel to Esenjay Exploration, Inc., a Delaware corporation ("Company"), in connection with the preparation for filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 ("Registration Statement") under the Securities Act of 1933, as amended. The Registration Statement relates to the registration of a total of 250,000 shares ("Shares") of the Company's common stock, par value $.01 per share ("Common Stock"), issuable pursuant to the Company's EMPLOYEE SAVINGS PLAN. We have examined the ESENJAY EMPLOYEE SAVINGS PLAN and such corporate records, documents, instruments and certificates of the Company, and have reviewed such questions of law as we have deemed necessary, relevant or appropriate to enable us to render the opinion expressed herein. In such examination, we have assumed without independent investigation the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons, and the conformity of any documents submitted to us as copies to their respective originals. As to certain questions of fact material to this opinion, we have relied without independent investigation upon statements or certificates of public officials and officers of the Company. Based upon such examination and review, we are of the opinion that the Shares have been duly and validly authorized and will, upon issuance and delivery as contemplated by the ESENJAY EMPLOYEE SAVINGS PLAN, be validly issued, fully paid and nonassessable outstanding shares of Common Stock. This Firm consents to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ PORTER & HEDGES, L.L.P. PORTER & HEDGES, L.L.P. EX-23.(A) 4 a2029308zex-23_a.txt EXHIBIT 23(A) EXHIBIT 23(a)* INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Esenjay Exploration, Inc. on Form S-8 of our report dated April 10, 2000, appearing in the Annual Report on Form 10-KSB of Esenjay Exploration, Inc. for the year ended December 31, 1999. /s/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Houston, Texas November 2, 2000 -----END PRIVACY-ENHANCED MESSAGE-----