EXHIBIT 10.16
AMENDMENT AND TRANSFER AGREEMENT
PLAINS RESOURCES INC. 401(k) PLAN AND TRUST AND THE
PLAINS ALL AMERICAN 401(k) PLAN AND TRUST
THIS AGREEMENT by Plains Resources Inc., a Delaware corporation (the
"Sponsor"), Plains All American Inc., a Delaware corporation (the "Employer"),
and Plains All American GP LLC, a Delaware limited liability company (the
"Company"),
W I T N E S S E T H:
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WHEREAS, the Sponsor previously established the Plains Resources Inc.
401(k) Plan for the benefit of its eligible employees and their beneficiaries
(the "Plan");
WHEREAS, the Plan provides that any business organization may, with
the approval of the Sponsor, adopt the Plan for all or any classification of its
employees;
WHEREAS, the Employer previously adopted the Plan for the benefits of
its eligible employees and their beneficiaries;
WHEREAS, the Company shall establish the Plains All American 401(k)
Plan for the benefit of its eligible former employees and their beneficiaries
(the "PAA Plan");
WHEREAS, in connection with the transactions contemplated by multiple
Unit Transfer and Contribution Agreements, dated as of May 8, 2001 or
thereafter, each as amended from time to time (collectively, the "Contribution
Agreement"), prior to the Closing Date of the Contribution Agreement, all of the
property used in the trade or business of the Employer as general partner of
Plains All American Pipeline, L.P. (the "MLP") will be transferred to the
Company;
WHEREAS, in connection with the Contribution Agreement, the Company
will succeed to the management and business activities formerly performed by the
Employer;
WHEREAS, in connection with the Contribution Agreement, the Sponsor,
the Employer and the Company will enter into a Pension and Employee Benefits
Assumption and Transition Agreement, effective as of June 8, 2001 (the
"Transition Agreement"); and
WHEREAS, the Sponsor, the Employer and the Company have agreed to
transfer certain assets and liabilities from the Plan and the Plains Resources
Inc. 401(k) Trust (the "Trust") to the PAA Plan and the Plains All American
401(k) Trust (the "PAA Trust") which represent 100 percent of the account
balances of Transferred Employees, as defined in the Transition Agreement, who
are participants in the Plan on the last day of the Transition Period, as
defined in the Transition Agreement (the "Plan Participants");
NOW, THEREFORE, effective as of the last day of the Transition Period,
as defined in the Transition Agreement (the "Transfer Date"), the parties agree
as follows:
(1) As soon as practicable after the date hereof, the Company agrees
to establish or designate, and maintain the PAA Plan, a defined
contribution plan, to provide benefits to the Plan Participants which are
substantially equivalent to the benefits provided to participants under the
Plan (provided, however, that all matching contributions will be paid in
cash). The PAA Plan shall be qualified under sections 401(a) and 401(k) of
the Internal Revenue Code of 1986, as amended (the "Code") and shall
provide the Plan Participants credit for service with the Sponsor and its
affiliates (including the Employer) and their respective predecessors prior
to the Transfer Date for all purposes for which service was recognized
under the Plan.
(2) As soon as practicable after the filing of the determination
letter request described in paragraph (3) below, the Sponsor shall cause
Xxxxx Fargo Bank (Texas), N.A. ("Xxxxx Fargo"), as trustee of the Trust, to
transfer to the PAA Trust cash or assets in which the Plan Participants are
currently invested (or with respect to participant loans granted prior to
the Transfer Date, if any, such loans and any promissory notes or other
documents evidencing such loans) in an amount equal to the account balances
of Plan Participants as of a valuation date (the "Valuation Date") not more
than 60 days preceding the date of transfer, increased by any contributions
due for periods prior to and including the Transfer Date and not made as of
the Valuation Date, reduced by any benefits paid during the period
following such Valuation Date to the Transfer Date, and adjusted for any
investment earnings or losses during the period following such Valuation
Date to the Transfer Date (the "Transferred Assets"). All Section
411(d)(6) protected benefits attributable to the Transferred Assets shall
continue to be available under the PAA Plan. The Sponsor, the Employer,
the Plan, the Company and the PAA Plan hereby agree to comply with all
requirements under the Employee Retirement Income Security Act of 1974, as
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amended, and the Code, including but not limited to section 411 of the
Code, that are applicable to such transfers.
(3) No later than 60 days after the Transfer Date, the Company shall
file a request for a determination letter with the Internal Revenue Service
(the "IRS") that the PAA Plan and Trust satisfy the requirements for
qualification under sections 401(a) and 401(k) of the Code. The Company
agrees that it shall amend the PAA Plan in any respect as may be required
by the IRS in order to receive a favorable determination letter from the
IRS that the PAA Plan and Trust satisfy the requirements for qualification
under sections 401(a) and 401(k) of the Code. No transfer shall be made
until the Company files with the IRS the request for determination letter
referred to in this paragraph (3).
(4) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which will constitute
one and the same Agreement and will be binding on the respective successors
and assigns of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed this 8th day of June 2001.
PLAINS RESOURCES INC.
By /s/ XXXXX X. XXXXXX
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Title Chairman and Chief Executive Officer
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PLAINS ALL AMERICAN INC.
By /s/ XXXX X. XXXXXXXXX
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Title Chief Executive Officer
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PLAINS ALL AMERICAN GP LLC by
PLAINS ALL AMERICAN INC., its Sole
Member
By /s/ XXXX X. XXXXXXXXX
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Title Chief Executive Officer
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