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EXHIBIT 4.1
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
SECTION 1. Purposes.
1.01 Pursuant to that certain Agreement and Plan of Merger among The
Xxxxxxxx Companies, Inc., Resources Acquisition Corp and Xxxxxxx Resources
Corporation dated as of May 7, 2001 ("Merger Agreement") the Company agreed to
assume, effective at the Merger Date (as defined below) certain options granted
under certain option plans maintained prior to the Merger Date (as defined
below) by Xxxxxxx Resources Corporation, which options would become and
represent options ("Substitute Options") to purchase Shares (as defined below),
and to assume the Xxxxxxx Plans (as defined below), with the result that all the
obligations of Xxxxxxx Resources Corporation under the Xxxxxxx Plans would
become obligations of the Company following the Merger Date.
The purpose of The Xxxxxxxx Companies, Inc. 2001 stock Option Plan (the
"Plan") as set forth herein, is to implement the provisions of the Merger
Agreement by amending and restating the Xxxxxxx Plans as the Plan to reflect
their assumption by the Company, and to provide for the grant of the Substitute
Options pursuant to the Merger Agreement.
SECTION 2. Definitions; Construction.
2.01 Definitions. In addition to the terms defined elsewhere in the
Plan, the following terms as used in the Plan shall have the following meanings
when used with initial capital letters:
2.01.1 "Affiliate" means any entity other than the Company in
which the Company owns, directly or indirectly, at least twenty percent
(20%) of the combined voting power of all classes of stock of such
entity or at least twenty percent (20%) of the ownership interests in
such entity.
2.01.2 "Xxxxxxx Award Agreement" means any written agreement,
contract or other instrument or document evidencing a Xxxxxxx Option.
2.01.3 "Xxxxxxx Option" means an option (including an
incentive stock option under Code Section 422) granted under a Xxxxxxx
Plan, to the extent such option (after effectuation of the adjustment
contemplated by Section 7.2(a) of the Merger Agreement) was outstanding
immediately prior to the Merger Date.
2.01.4 "Xxxxxxx Plan" means any of the following plans as in
effect immediately prior to the Merger Date: Xxxxxxx Resources
Corporation 2000 Stock Option Plan; Xxxxxxx Resources Corporation 1999
Stock Option Plan; Xxxxxxx Resources Corporation 1997 Stock Option
Plan; Xxxxxxx Resources Corporation Non-Discretionary Stock Option Plan
as Amended March 20, 1997; Xxxxxxx Resources Corporation 1994 Stock
Option Plan, Plains Petroleum Company 1992 Stock Option Plan, Plains
Petroleum Company 1989 Stock Option Plan, and Plains Petroleum Company
1985 Stock Option Plan for Non-
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Employee Directors. A copy of each Xxxxxxx Plan is respectively
attached hereto as Exhibits A through H.
2.01.5 "Board means the Company's Board of Directors.
2.01.6 "CEO" means the Chief Executive Officer of the Company,
as designated by the Board.
2.01.7 "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
2.01.8 "Company" means The Xxxxxxxx Companies, Inc. together
with any successor thereto.
2.01.9 "Exchange Act" means the Securities Exchange Act of
1934, as amended.
2.01.10 "Fair Market Value" means, as of any date, with
respect to Shares at any time that Shares are listed on the New York
Stock Exchange, the mean between the highest and lowest selling prices
in the consolidated transaction reporting system as of that date or
nearest preceding date on which a sale was reported; and, with respect
to Shares at any time that Shares are not listed on the New York Stock
Exchange, or property other than Shares, the Fair Market Value of such
Shares or other property determined by such methods or procedures as
shall be established from time to time by the CEO.
2.01.11 "Merger" means the merger among the Company, Resources
Acquisition Corp., and Xxxxxxx Resources Corporation, as defined and
described in the Merger Agreement.
2.01.12 "Merger Date" means the time at which the Merger
becomes effective (defined in the Merger Agreement as the "Effective
Time").
2.01.13 "Merger Agreement" means such term as defined in
Section 1.01.
2.01.14 "Participant" means a Person holding a Replacement
Option.
2.01.15 "Person" shall have the meaning assigned in the
Exchange Act.
2.01.16 "Replacement Option" means a right, granted under
Section 6.02 hereof, to purchase Shares at a specified price during
specified time periods.
2.01.17 "Replacement Option Agreement" means the agreement
evidencing a Replacement Option.
2.01.18 "Shares" means the common stock of the Company, $1.00
par value, and such other securities of the Company as may be
substituted for Shares pursuant to Section 8.01 hereof.
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2.01.19 "Xxxxxxxx Grantee" means any Person who, immediately
prior to the Merger Date, held a Xxxxxxx Option.
2.02 Construction. For purposes of the Plan, the following
rules of construction shall apply:
2.02.1 The word "or" is disjunctive but not necessarily
exclusive.
2.02.2 Words in the singular include the plural; words in the
plural include the singular; and words in the neuter gender include the
masculine and feminine genders and words in the masculine or feminine
gender include the other and neuter genders.
SECTION 3. Administration.
3.01 The Plan shall be administered by the CEO or, if the Board so
designates, by a committee of the Board. (If the Board designates such a
committee, references in the Plan to the CEO shall be deemed to be references to
such committee.). The CEO shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions of
the Merger Agreement and the Plan, including but not limited to Section 6.02:
(i) to designate Participants;
(ii) to determine the type or types of Replacement Options to be
granted to each Participant;
(iii) to determine the number of Replacement Options to be granted,
the number of Shares to which a Replacement Option will
relate, the terms and conditions of any Replacement Option
(including, but not limited to, any exercise price, xxxxx
xxxxx or purchase price, any limitation or restriction, any
schedule for lapse of limitations, forfeiture restrictions or
restrictions on exercisability or transferability, and
accelerations or waivers thereof, based in each case on such
considerations as the CEO shall determine), and all other
matters to be determined in connection with a Replacement
Option;
(iv) to determine whether, to what extent and under what
circumstances a Replacement Option may be settled in, or the
exercise price of a Replacement Option may be paid in, cash,
Shares, other Replacement Options or other property, or a
Replacement Option may be accelerated, vested, canceled,
forfeited, exchanged or surrendered;
(v) to determine whether, to what extent and under what
circumstances cash, Shares, other Replacement Options, other
property and other amounts payable with respect to a
Replacement Option shall be deferred either at the election of
the CEO or at the election of the Participant;
(vi) to prescribe the form of each Replacement Option Agreement,
which need not be identical for each Participant;
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(vii) to adopt, amend, suspend, waive and rescind such rules and
regulations and appoint such agents as the CEO may deem
necessary or advisable to administer the Plan;
(viii) to correct any defect or supply any omissions or reconcile any
inconsistency; and to construe and interpret the Plan, the
rules and regulations, any Replacement Option Agreement or
other instrument entered into or relating to a Replacement
Option made under the Plan; including but not limited to the
authority to correct any defect, supply any omission and
reconcile any inconsistency between the Plan and the
applicable Xxxxxxx Plan and the Replacement Option Agreement
and the applicable Xxxxxxx Award Agreement; and
(ix) to make all other decisions and determinations as may be
required under the terms of the Plan or as the CEO may deem
necessary or advisable for the administration of the Plan.
Any action of the CEO with respect to the Plan shall be final,
conclusive and binding on all Persons, including the Company, Affiliates,
Participants, any Person claiming any rights under the Plan from or through any
Participant, and stockholders. The express grant of any specific power to the
CEO, and the taking of any action by the CEO, shall not be construed as limiting
any power or authority of the CEO. The CEO may delegate to officers or managers
of the Company or of any Affiliate the authority, subject to such terms as the
CEO shall determine, to take such actions and perform such functions under the
Plan as the CEO may specify, including, but not limited to, administrative
functions. The CEO shall be entitled to, in good faith, rely or act upon any
report or other information furnished to it by any officer, manager or other
employee of the Company or any Affiliate, the Company's independent certified
public accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration of the
Plan. Any and all powers, authorizations and discretions granted by the Plan to
the CEO (or delegated by the CEO) shall likewise be exercisable at any time by
the Board.
SECTION 4. Shares Subject to the Plan.
4.01 An aggregate number of Shares is hereby made available and is
reserved for delivery on account of the exercise of Replacement Options equal to
the number of Shares determined pursuant to the formulas set forth in Section
6.02 to be required to replace Xxxxxxx Options held by Xxxxxxxx Grantees as of
the Merger Date; provided that, subject to adjustment as provided in Section
8.01 hereof, the total number of Shares reserved and available for distribution
under the Plan shall not exceed 2,200,000 Shares.
Any Shares distributed pursuant to a Replacement Option may consist, in
whole or in part, of authorized and unissued Shares or of treasury Shares,
including Shares repurchased by the Company for purposes of the Plan; provided,
however, that if, at the time Shares are to be distributed under the Plan to a
Participant (including upon exercise of a Replacement Option), the Shares are
listed on the New York Stock Exchange and such Participant is a "director" or
"officer" of the Company within the meaning of Sections 312.03 and 703.09 of the
Listed Company Manual of the New York Stock Exchange, such that the
Participant's acquisition of Stock originally issued by the Company would be
subject to the requirement of stockholder
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approval under applicable Exchange rules, the Shares to be distributed to such
Participant shall consist only of treasury Shares then held by the Company. The
Company shall use its best efforts to obtain and have available, at any time
that the such treasury Shares are required to be distributed in connection with
a Replacement Option, a sufficient number of treasury Shares, not reserved for
other uses, to be able to make prompt delivery in connection with any such
Replacement Option.
SECTION 5. Eligibility.
5.01 Replacement Options may be granted only to Xxxxxxxx Grantees.
SECTION 6. Specific Terms of Replacement Options.
6.01 General. Subject to the terms of the Plan and any applicable
Replacement Option Agreement, Replacement Options shall be granted as provided
in this Section 6 to replace and in substitution for those opportunities and
benefits (under the Xxxxxxx Plans) of Xxxxxxxx Grantees. Immediately prior to
such grant, the Xxxxxxx Option it replaces shall terminate and be of no further
effect.
6.02 Replacement Options. Effective as of immediately after the Merger
Date, the CEO shall grant Replacement Options to each Xxxxxxxx Grantee, on the
following terms and conditions:
(i) Exercise Price. The exercise price per Share of a Replacement
Option shall be the quotient obtained by dividing the exercise
price per share under the Xxxxxxx Option it replaces by 1.767,
with such quotient rounded up to the nearest one-tenth of one
cent, as determined by the CEO.
(ii) Number of Shares. The number of Shares subject to the
Replacement Option shall be the product of the number of
shares of common stock of Xxxxxxx Resources Corporation, par
value $0.01 per share subject to the Xxxxxxx Option it
replaces, multiplied by 1.767, with such product rounded to
the nearest full share, or if there shall not be a nearest
share, the next greater full share, as determined by the CEO.
(iii) Replacement Option Terms. Each Replacement Option shall have
substantially the same terms and conditions as the Xxxxxxx
Option it replaces (other than the exercise price and the
number of shares and the fact that it is exercisable for
Shares, but including but not limited to the remaining option
term, vesting, (including, if applicable, accelerated
vesting), conditions of exercisability), employment
requirements, directorship requirement, requirements for
acknowledgements and warranties from the Participant, sale
restrictions on the Shares, and the methods of and limits on
exercise of the Replacement Option), and not give the
Participant any additional benefits he or she did not have,
under the corresponding Xxxxxxx Option, as determined by the
CEO. Subject to the foregoing, the CEO shall determine the
time or times at which a Replacement Option may be exercised,
the methods by which such exercise price may be paid or deemed
to be paid, and the permitted form of such payment.
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(iv) Grant of Replacement Incentive Stock Options. At the time of
the grant of any Replacement Option, the CEO shall, if such
Replacement Option replaces an incentive stock option granted
under a Xxxxxxx Plan ("ISO Replacement Option"), designate
that such Replacement Option shall be made subject to
additional restrictions to permit it to qualify insofar as
reasonably possible as an "incentive stock option" under the
requirements of Section 422 of the Code.
SECTION 7. General Terms of Replacement Options.
7.01 Limits on Transfer of Replacement Options, Beneficiaries. No right
or interest of a Participant in, or relating to, any Replacement Option shall be
pledged, encumbered or hypothecated to or in favor of any Person other than the
Company or an Affiliate, or shall be subject to any lien, obligation or
liability of such Participant to any Person other than the Company or an
Affiliate. Unless otherwise determined by the CEO or permitted under the
relevant Xxxxxxx Option, (consistent with Section 422 of the Code and the
requirements for registration of offers and sales of Shares under the Plan with
the Securities and Exchange Commission on a registration statement on Form S-8,
as then in effect, or such other such registration form as may then be
available), no Replacement Option shall be assignable or transferable by a
Participant otherwise than by will or the laws of descent and distribution;
provided, however, that, if so determined by the CEO, a Participant may, in the
manner established by the CEO, designate a beneficiary or beneficiaries to
exercise the rights of the Participant upon the death of the Participant. A
beneficiary, guardian, legal representative or other Person claiming any rights
under the Plan from or through any Participant shall be subject to all the terms
and conditions of the Plan and any Replacement Option Agreement applicable to
such Participant as well as any additional restrictions or limitations deemed
necessary or appropriate by the CEO. An ISO Replacement Option shall be
exercisable by the guardian, legal representative, beneficiary or other Person
only if a ruling from the Internal Revenue Service or an opinion of counsel is
obtained to the effect that neither the grant nor the exercise of such power is
violative of Section 422 of the Code. Any opinion of counsel must be acceptable
to the CEO both with respect to the counsel rendering the opinion and with
respect to the form of opinion.
7.02 Registration and Listing Compliance. The Company shall have no
obligation to make any payment or distribute Shares with respect to any
Replacement Option in a transaction subject to the registration requirements of
the Securities Act of 1933, as amended, or any state securities laws or subject
to a listing requirement under any listing agreement between the Company and any
national securities exchange, and no Replacement Option shall confer upon any
Participant any rights to such delivery or distribution, until such laws and
contractual obligations of the Company have been complied within all material
respects. The Company shall have no obligation to register Shares or the resale
of the Shares under the Securities Act of 1933, and in the absence of such
registration the Shares may not be sold unless they are subject to an exemption
from registration from the Security Act of 1933.
7.03 Stock Certificates. All certificates for Shares delivered under
the terms of the Plan shall be subject to such stop-transfer orders and other
restrictions as the CEO may deem advisable under federal or state securities
laws, rules and regulations thereunder, and the rules of any national securities
exchange or automated quotation system on which Shares are listed or quoted. The
CEO may cause a legend or legends to be placed on any such certificates to make
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appropriate reference to such restrictions or any other restrictions or
limitations that may be applicable to Shares. In addition, during any period in
which Replacement Options or Shares are subject to restrictions or limitations
under the terms of the Plan or any Replacement Option Agreement, or during any
period during which delivery or receipt of a Replacement Option or Shares has
been deferred by the CEO or a Participant, the CEO may require any Participant
to enter into an agreement providing that certificates representing Shares
issuable or issued pursuant to a Replacement Option shall remain in the physical
custody of the Company or such other Person as the CEO may designate.
SECTION 8. Adjustment Provisions.
8.01 In the event that the CEO shall determine that any dividend or
other distribution (whether in the form of cash, Shares, other securities or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, exchange of Shares or other securities of the Company, or other
similar corporate transactions or event affects the Shares such that an
adjustment is determined by the CEO to be appropriate in order to prevent
dilution or enlargement of Participants' rights under the Plan, then the CEO
shall, in such manner as it may deem equitable, adjust any or all of (i) the
number and kind of Shares which may thereafter be issued in connection with
Replacement Options; (ii) the number and kind of Shares issued or issuable in
respect of outstanding Replacement Options; and (iii) the exercise price, xxxxx
xxxxx or purchase price relating to any Replacement Option or, if deemed
appropriate, make provisions for a cash payment with respect to any outstanding
Replacement Option. In addition, the CEO is authorized to make adjustments in
the terms and conditions of, and the criteria in, Replacement Options in
recognition of unusual or nonrecurring event (including, without limitation,
events described in the preceding sentence) affecting the Company or any
Affiliate or the financial statements of the Company or any Affiliate, or in
response to changes in applicable laws, regulations or accounting principles.
SECTION 9. Amendments to and Termination of the Plan.
9.01 The Board may amend, alter, suspend, discontinue or terminate the
Plan without the consent of stockholders or Participants; provided, however,
that, without the consent of a Participant, no amendment, alteration,
suspension, discontinuation or termination of the Plan may materially and
adversely affect the rights of such Participant under any Replacement Option
theretofore granted to him. The CEO may waive any conditions or rights under,
amend any terms of, or amend, alter, suspend, discontinue or terminate any
Replacement Option theretofore granted, prospectively or retrospectively;
provided, however, that, without the consent of a Participant, no amendment,
alteration, suspension, discontinuation or termination of any Replacement Option
may materially and adversely affect the rights of such Participant under any
Replacement Option theretofore granted to him.
Unless earlier terminated by the Board, the Plan shall terminate on the
earlier of (1) the tenth (10th) anniversary of the effective date (set forth in
Section 11.01) or (2) when no Shares remain reserved and available for issuance
and the Company has no further obligation with respect to any Replacement Option
granted under the Plan.
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SECTION 10. General Provisions.
10.01 No Rights to Replacement Options; No Stockholder Rights. Except
as set forth in the Merger Agreement or in Section 6.02 of the Plan, no Xxxxxxxx
Grantee, Participant, director, or employee shall have any claim to be granted
any Replacement Option under the Plan, and there is no obligation for uniformity
of treatment of Xxxxxxxx Grantees, Participants, directors and employees, except
as provided in any other compensation arrangement. No Replacement Option shall
confer on any Participant any of the rights of a stockholder of the Company
unless and until Shares are in fact issued to such Participant in connection
with such Replacement Option.
10.02 Withholding. The Company or any Affiliate is authorized to
withhold from any Replacement Option granted or any payment due under the Plan,
including from a distribution of Shares, amounts of withholding taxes due with
respect to a Replacement Option, its exercise or any payment thereunder, and to
take such other action as the CEO may deem necessary or advisable to enable the
Company and Participants to satisfy obligations for the payment of such taxes.
This authority shall include authority to withhold or receive Shares,
Replacement Options or other property and to make cash payments in respect
thereof in satisfaction of such tax obligations. In no event shall the
repurchase of Shares for tax withholding exceed the number required to satisfy
the employer's minimum statutory withholding requirements.
10.03 No Right to Employment. Nothing contained in the Plan or any
Replacement Option Agreement shall confer, and no grant of a Replacement Option
shall be construed as conferring, upon any Xxxxxxxx Grantee Participant any
right continue in the service of the Company or any Affiliate or to interfere in
any way with the right of the Company or any Affiliate to terminate his
employment at any time or increase or decrease his compensation from the rate in
existence at the time of granting of a Replacement Option, except as provided in
any other compensation arrangement.
10.04 Unfunded Status of Replacement Options; Creation of Trusts. The
Plan is intended to constitute an "unfunded" plan for incentive and deferred
compensation. With respect to any payments not yet made to a Participant
pursuant to a Replacement Option, nothing contained in the Plan or any
Replacement Option shall give any such Participant any rights that are greater
than those of a general creditor of the Company; provided, however, that the CEO
may authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, Shares or other property
pursuant to any Replacement Option; which trusts or other arrangements shall be
consistent with the "unfunded" status of the Plan unless the CEO otherwise
determines.
10.05 No Limit on Other Compensatory Arrangements. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting other or
additional compensation arrangements (which relate to Replacement Options under
the Plan), and such arrangements may be either generally applicable or
applicable only in specific cases. Notwithstanding anything in the Plan to the
contrary, the terms of each Replacement Option shall be construed so as to be
consistent with such other arrangements in effect at the time of the Replacement
Option.
10.06 No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Replacement Option. The CEO shall
determine whether cash, other
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Replacement Options or other property shall be issued or paid in lieu of
fractional Shares or any rights thereto shall be forfeited or otherwise
eliminated.
10.07 Governing Law. The validity, interpretation, construction and
effect of the Plan and any rules and regulations relating to the Plan shall be
governed by the laws of the State of Delaware (without regard to the conflicts
of laws thereof), and applicable federal law.
10.08 Severability. If any provision of the Plan is or becomes or is
deemed invalid, illegal or unenforceable in any jurisdiction, or would
disqualify the Plan or any Replacement Option under any law deemed applicable by
the CEO, such provision shall be construed or deemed amended to conform to
applicable laws or if it cannot be construed or deemed amended without, in the
determination of the CEO, materially altering the intent of the Plan, it shall
be deleted and the remainder of the Plan shall remain in full force and effect;
provided, however, that, unless otherwise determined by the CEO, the provision
shall not be construed or deemed amended or deleted with respect to any
Participant whose rights and obligations under the Plan are not subject to the
law of such jurisdiction or the law deemed applicable by the CEO.
SECTION 11. Effective Date.
11.01 The Plan was approved by the Board on July 22, 2001 and became
effective on that date.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Sr. Vice President,
Human Resources & Administration
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EXHIBIT A
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
XXXXXXX RESOURCES CORPORATION 2000 STOCK OPTION PLAN
(filed as Exhibit 4.1 to Xxxxxxx Resources Corp.'s Registration Statement on
Form S-8 filed May 9, 2000)
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EXHIBIT B
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
XXXXXXX RESOURCES CORPORATION 1999 STOCK OPTION PLAN
(filed as Exhibit 99.1 to Xxxxxxx Resources Corp.'s Proxy Statement dated
March 25, 1999)
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EXHIBIT C
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
XXXXXXX RESOURCES CORPORATION 1997 STOCK OPTION PLAN
(filed as Exhibit 99.1 to Xxxxxxx Resources Corp.'s
Proxy Statement dated April 24, 1997)
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EXHIBIT D
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
XXXXXXX RESOURCES CORPORATION NON-DISCRETIONARY STOCK OPTION PLAN AS AMENDED
MARCH 20, 1997
(filed as Exhibit 99.2 to Xxxxxxx Resources Corp.'s
Proxy Statement dated April 24, 1997)
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EXHIBIT E
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
XXXXXXX RESOURCES CORPORATION 1994 STOCK OPTION PLAN
(filed as an Exhibit to Xxxxxxx Resources Corp.'s
Registration Statement on Form S-8 filed March 15, 1995)
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EXHIBIT F
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
PLAINS PETROLEUM COMPANY 1992 STOCK OPTION PLAN
(filed as an Exhibit to Plains Petroleum
Company's Registration Statement on
Form S-8 filed November 16, 1992)
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EXHIBIT G
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
PLAINS PETROLEUM COMPANY 1989 STOCK OPTION PLAN
(filed as an Exhibit to Plains Petroleum
Company's Registration Statement
on Form S-8 filed August 11, 1989)
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EXHIBIT H
THE XXXXXXXX COMPANIES, INC.
2001 STOCK PLAN
PLAINS PETROLEUM COMPANY 1985 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(filed as an Exhibit to Plains Petroleum Company's Registration Statement
on Form 10 filed August 21, 1985)
