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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 2
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 18, 1998
APACHE CORPORATION
(Exact name of registrant as specified in Charter)
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<S> <C> <C>
DELAWARE 1-4300 41-0747868
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
</TABLE>
2000 POST OAK BOULEVARD
SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (713) 296-6000
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ITEM 5. OTHER EVENTS
On June 26, 1998, Apache Corporation ("Apache") filed a Registration
Statement (the "Registration Statement") on Form S-3 (Registration No.
333-57785) with the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement,
which was declared effective by the SEC on July 6, 1998, covers one or more
series of unsecured senior debt securities and/or one or more series of
preferred stock, no par value, of Apache, for delayed or continuous offering
pursuant to Rule 415 under the Act for an aggregate initial offering price not
to exceed $500 million. Reference is made to the Registration Statement for
further information concerning the terms of such debt securities and/or
preferred stock and the offering thereof.
Pursuant to a Terms Agreement dated August 20, 1998 and the
Underwriting Agreement Basic Terms incorporated by reference therein
(collectively, the "Underwriting Agreement"), between Apache and Salomon Smith
Barney (the "Underwriter"), Apache will issue to the Underwriter for offering
to the public, one million (1,000,000) Depositary Shares (the "Depositary
Shares") each representing 1/10th of a share of Apache's 5.68% Cumulative
Preferred Stock Series B, no par value per share ("Series B Preferred Stock").
The offering is expected to close on August 25, 1998. The Underwriting
Agreement Basic Terms are listed under Item 7 as Exhibit 1.1 and are
incorporated herein by reference.
The shares of Series B Preferred Stock will be issued under a
Certificate of Designations, Preferences and Rights (the "Certificate of
Designation") and will be deposited with Norwest Bank Minnesota, National
Association (the "Depositary") under a Deposit Agreement among Apache, the
Depositary, and the holders from time of the depositary receipts (the
"Depositary Receipts") issued by the Depositary thereunder. The Depositary
Receipts will evidence the Depositary Shares. The Certificate of Designation,
the form of Preferred Stock Certificate and the form of Deposit Agreement,
including the form of Depositary Receipt, are listed under Item 7 as Exhibits
4.1, 4.2 and 4.3, respectively, and are incorporated herein by reference.
Apache's press release relating to the Series B Preferred Stock is
listed under Item 7 as Exhibit 99.3 and is incorporated herein by reference.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(C) EXHIBITS.
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EXHIBIT NO. DESCRIPTION
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**1.1 Form of Underwriting Agreement Basic Terms, among Apache Corporation and the Underwriters.
*4.1 Form of Certificate of Designations, Preferences and Rights of Series B Preferred Stock.
*4.2 Form of Preferred Stock Certificate.
**4.3 Form of Deposit Agreement, with form of Depositary Receipt.
**23.1 Consent of general counsel relating to opinion of general counsel concerning Registration
Statement on Form S-3 (Reg. No. 333-57785).
**99.1 Preliminary Prospectus Supplement dated August 17, 1998, to Prospectus dated June 26, 1998.
**99.2 Statement of computation of ratio of earnings to combined fixed charges and preferred stock
dividends.
*99.3 Press release dated August 20, 1998 "Apache Offers $100 Million of 5.68% Nonconvertible
Preferred"
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_________________
* filed herewith
** previously filed
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Amendment No. 2 on Form 8-K/A to be signed on
its behalf by the undersigned thereunto duly authorized.
APACHE CORPORATION
Date: August 24, 1998 /s/ Z. S. Kobiashvili
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Z. S. Kobiashvili
Vice President and General Counsel
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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**1.1 Form of Underwriting Agreement Basic Terms, among Apache Corporation and the Underwriters.
*4.1 Form of Certificate of Designations, Preferences and Rights of Series B Preferred Stock.
*4.2 Form of Preferred Stock Certificate.
**4.3 Form of Deposit Agreement, with form of Depositary Receipt.
**23.1 Consent of general counsel relating to opinion of general counsel concerning Registration
Statement on Form S-3 (Reg. No. 333-57785).
**99.1 Preliminary Prospectus Supplement dated August 17, 1998, to Prospectus dated June 26, 1998.
**99.2 Statement of Computation of ratio of earnings to combined fixed charges and preferred stock
dividends.
*99.3 Press release dated August 20, 1998 "Apache Offers $100 Million of 5.68% Nonconvertible
Preferred"
</TABLE>
_________________
* filed herewith
** previously filed
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EXHIBIT 4.1
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
OF
5.68% CUMULATIVE PREFERRED STOCK, SERIES B
OF
APACHE CORPORATION
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Apache Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance
with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in accordance
with the provisions of the Restated Certificate of Incorporation of the
Corporation, which authorizes the issuance by the Corporation of up to five
million (5,000,000) shares of no par value preferred stock, which authority was
delegated by the Board of Directors to a committee of the Board of Directors
(the "Committee") pursuant to resolutions adopted by unanimous written consent
dated June 18, 1998, the Committee by unanimous written consent dated August
20, 1998, adopted the following resolution creating and providing for the
issuance of a series of preferred stock of the Corporation:
RESOLVED: That, pursuant to the authority delegated by the Board of
Directors of the Corporation, the Committee hereby creates a series of
preferred stock of the Corporation and hereby states the designation
and number of shares, and fixes the relative rights, preferences and
limitations thereof (in addition to the provisions set forth in the
Restated Certificate of Incorporation of the Corporation, which are
applicable to all series of the Corporation's preferred stock) as
follows:
5.68% CUMULATIVE PREFERRED STOCK, SERIES B
1. Number of Shares and Designation. One hundred thousand
(100,000) shares of the five million (5,000,000) authorized shares of no par
value preferred stock of the Corporation are hereby constituted as a series of
preferred stock, no par value per share, designated as "5.68% Cumulative
Preferred Stock, Series B" (hereinafter called the "Series B Preferred Stock").
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2. Ranking. The Series B Preferred Stock shall rank prior and
superior to all of the Common Stock of the Corporation now or hereafter
outstanding, and the Series A Junior Participating Preferred Stock of the
Corporation as to payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of the Corporation.
3. Dividends.
(i) General. Cumulative cash dividends shall be payable on
each share of Series B Preferred Stock when, as and if declared by the Board of
Directors of the Corporation or a duly authorized committee thereof, out of the
assets of the Corporation legally available therefor.
The initial dividend for the dividend period commencing on
August 25, 1998, to but excluding October 30, 1998, will be $10.26 per share
and shall be payable on October 30, 1998. Thereafter, dividends on the Series B
Preferred Stock shall be payable quarterly, when, as and if declared by the
Board of Directors of the Corporation or a duly authorized committee thereof on
the last business day of January, April, July and October of each year (each a
"Dividend Payment Date") at the annual rate of 5.68% or $56.80 per share. The
amount of dividends payable on each share of Series B Preferred Stock for each
full quarterly period shall be computed by dividing the annual dividend rate by
four. The amount of dividends payable for any other period that is shorter or
longer than a full quarterly dividend period will be computed on the basis of a
360-day year consisting of twelve 30-day months.
If a Dividend Payment Date is not a business day, dividends
(if declared) on the Series B Preferred Stock shall be paid on the next
business day, without interest. As used herein, the term "business day" means
any day other than a Saturday or Sunday or any other day on which banks in The
City of New York are authorized or required by law or executive order to close.
A dividend period with respect to a Dividend Payment Date is the period
commencing on the preceding Dividend Payment Date and ending on the day
immediately prior to the next Dividend Payment Date. Dividends payable, if
declared, on a Dividend Payment Date shall be payable to holders of record as
they appear on the stock books of the Corporation on the record date, which
shall be the fifteenth day of the calendar month in which the applicable
Dividend Payment Date falls (each, a "Dividend Record Date").
Dividends on the Series B Preferred Stock shall be cumulative
if the Corporation fails to declare one or more dividends on the Series B
Preferred Stock in any amount, whether or not the earnings or financial
condition of the Corporation were sufficient to pay such dividends in whole or
in part.
Holders of shares of Series B Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full dividends (including accrued dividends, if any) on shares of Series B
Preferred Stock. No interest or sum of money in lieu of interest shall be
payable in respect of any dividend or payment which may be in arrears.
Dividends in arrears on the Series B Preferred Stock payable,
if declared, but not declared for payment or paid on any Dividend Payment Date
may be declared by the Board of Directors of the Corporation or a duly
authorized committee thereof and paid on any date fixed by the Board of
Directors of the Corporation or a duly authorized committee thereof, whether or
not a Dividend Payment Date, to
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the holders of record of the shares of Series B Preferred Stock, as they appear
on the stock register of the Corporation on such record date, which shall be
not less than ten nor more than 30 days prior to the payment date therefor, as
shall be fixed by the Board of Directors of the Corporation or a duly
authorized committee thereof.
(ii) Changes in the Dividends Received Percentage. If,
prior to 18 months after the date of the original issuance of the Series B
Preferred Stock, one or more amendments to the U. S. Internal Revenue Code of
1986, as amended (the "Code"), are enacted which change the percentage of the
dividends received deduction as specified in Section 243(a)(1) of the Code or
any successor provision (the "Dividends Received Percentage"), the amount of
each dividend on each share of the Series B Preferred Stock for dividend
payments made on or after the date of enactment of such change shall be
adjusted by multiplying the amount of the dividend payable determined as
described above (before adjustment) by a factor, which shall be the number
determined in accordance with the following formula (the "DRD Formula"), and
rounding the result to the nearest cent (with one-half cent and above rounded
up):
1-[.35 (1-.70)]
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1-[.35 (1-DRP)]
For the purposes of the DRD Formula, "DRP" means the Dividends
Received Percentage applicable to the dividend in question; provided however,
that if the Dividends Received Percentage applicable to the dividend in
question shall be less than 50%, then the DRP shall equal .50. No amendment to
the Code, other than a change in the percentage of the dividends received
deduction set forth in Section 243(a)(1) of the Code or any successor
provision, shall give rise to such an adjustment. Notwithstanding the
foregoing provisions, in the event that, with respect to any such amendment,
the Corporation receives either an unqualified opinion from a nationally
recognized independent tax counsel selected by the Corporation or a private
letter ruling or similar form of authorization from the U.S. Internal Revenue
Service ("IRS") to the effect that such an amendment does not apply to
dividends payable on the Series B Preferred Stock, then any such amendment
shall not result in the adjustment provided for pursuant to the DRD Formula.
The opinion referenced in the previous sentence shall be based upon a specific
exception in the legislation amending the DRP or upon a published pronouncement
of the IRS addressing such legislation. Unless the context otherwise requires,
references to dividends herein shall mean dividends as adjusted by the DRD
Formula. The Corporation's calculation of the dividends payable as so
adjusted, and as certified accurate as to calculation and reasonable as to
method by the independent certified public accountants then regularly engaged
by the Corporation, shall be final and not subject to review.
If any amendment to the Code which reduces the Dividends
Received Percentage is enacted after a Dividend Record Date and before the next
Dividend Payment Date, the amount of dividend payable on such Dividend Payment
Date shall not be increased; but instead, an amount equal to the excess of (x)
the product of the dividends paid by the Corporation on such Dividend Payment
Date and the DRD Formula (where the DRP used in the DRD Formula would be equal
to the greater of the Dividends Received Percentage applicable to the dividend
in question and .50) over (y) the dividends paid by the Corporation on such
Dividend Payment Date, shall be payable (if declared) to holders of record on
the next succeeding Dividend Payment Date in addition to any other amounts
payable on such date.
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In addition, if any such amendment to the Code is enacted that
reduces the Dividends Received Percentage and such reduction retroactively
applies to a Dividend Payment Date as to which the Corporation previously paid
dividends on the Series B Preferred Stock (each an "Affected Dividend Payment
Date"), the Corporation shall pay (if declared) additional dividends (the
"Additional Dividends") on the next succeeding Dividend Payment Date (or if
such amendment is enacted after the dividend payable on such Dividend Payment
Date has been declared, on the second succeeding Dividend Payment Date
following the date of enactment) to holders of record on such succeeding
Dividend Payment Date in an amount equal to the excess of (x) the product of
the dividends paid by the Corporation on each Affected Dividend Payment Date
and the DRD Formula (where the DRP used in the DRD Formula would be equal to
the greater of the Dividends Received Percentage and .50 applied to each
Affected Dividend Payment Date) over (y) the dividends paid by the Corporation
on each Affected Dividend Payment Date.
Notwithstanding the foregoing, Additional Dividends shall not
be paid as a result of the enactment of any amendment to the Code 18 months or
more after the date of original issuance of the Series B Preferred Stock which
retroactively reduces the Dividends Received Percentage, or if such amendment
would not result in an adjustment due to the Corporation having received either
an opinion of counsel or tax ruling referred to in the third preceding
paragraph. The Corporation shall make only one payment of Additional
Dividends.
In the event that the amount of dividend payable per share of
the Series B Preferred Stock shall be adjusted pursuant to the DRD Formula
and/or Additional Dividends are to be paid, the Corporation will cause notice
of each adjustment and, if applicable, any Additional Dividends, to be sent to
the holders of the Series B Preferred Stock with the payment of dividends on
the next Dividend Payment Date after the date of such adjustment.
In the event that, prior to 18 months after the date of the
original issuance of the Series B Preferred Stock, the Dividends Received
Percentage is reduced to 50% or less, the Corporation may, at its option,
redeem the Series B Preferred Stock in whole, but not in part, as described
below.
(iii) Payment Restrictions. The Corporation may not
declare or pay any dividend or make any distribution of assets (other than
dividends paid or other distributions made in stock of the Corporation ranking
junior to the Series B Preferred Stock as to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up) on, or
redeem, purchase or otherwise acquire (except upon conversion or exchange for
stock of the Corporation ranking junior to the Series B Preferred Stock as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up), shares of Common Stock, of Series A Preferred Stock
or of any other stock of the Corporation ranking junior to the Series B
Preferred Stock as to the payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, unless all accrued and unpaid
dividends on the Series B Preferred Stock for all prior dividend periods have
been or contemporaneously are declared and paid and the full quarterly dividend
on the Series B Preferred Stock for the current dividend period has been or
contemporaneously is declared and set apart for payment.
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Whenever all accrued dividends on the Series B Preferred Stock
are not paid in full, the Corporation may not declare or pay dividends or make
any distribution of assets (other than dividends paid or other distributions
made in stock of the Corporation ranking junior to the Series B Preferred Stock
as to the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) on any other stock of the Corporation ranking on a
parity with the Series B Preferred Stock as to the payment of dividends unless
(i) all accrued and unpaid dividends on the Series B Preferred Stock for all
prior dividend periods are contemporaneously declared and paid or (ii) all
dividends declared and paid or set apart for payment or other distributions
made on the Series B Preferred Stock and any other stock of the Corporation
ranking on a parity with the Series B Preferred Stock as to the payment of
dividends are declared and paid or set apart for payment or made pro rata so
that the amount of dividends declared and paid or set apart for payment or
other distributions made per share on the Series B Preferred Stock and such
other stock of the Corporation will bear the same ratio that accrued and unpaid
dividends per share on the Series B Preferred Stock and such other stock of the
Corporation bear to each other.
Whenever all accrued dividends on the Series B Preferred Stock
are not paid in full, the Corporation may not redeem, purchase or otherwise
acquire (except upon conversion or exchange for stock of the Corporation
ranking junior to the Series B Preferred Stock as to the payment of dividends
and the distribution of assets upon liquidation, dissolution or winding up)
other stock of the Corporation ranking on a parity with the Series B Preferred
Stock as to the payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up unless (i) all outstanding shares of the
Series B Preferred Stock are contemporaneously redeemed or (ii) a pro rata
redemption is made of shares of Series B Preferred Stock and such other stock
of the Corporation, with the amount allocable to each series of such stock
determined on the basis of the aggregate liquidation preference of the
outstanding shares of each series and the shares of each series being redeemed
only on a pro rata basis.
4. Liquidation Preference. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of Series B Preferred Stock shall be entitled to receive out
of the assets of the Corporation available for distribution to stockholders,
before any distribution of assets is made on the Common Stock of the
Corporation or any other class or series of stock of the Corporation ranking
junior to the Series B Preferred Stock, upon liquidation, a liquidating
distribution in the amount of $1,000 per share, plus an amount equal to the sum
of all accrued and unpaid dividends including any increase in dividends payable
due to changes in the Dividends Received Percentage and Additional Dividends
(whether or not earned or declared) for the then-current dividend period and
all dividend periods prior thereto.
Neither the sale of all or substantially all of the property
or business of the Corporation, nor the merger, conversion or consolidation of
the Corporation into or with any other corporation, nor the merger, conversion
or consolidation of any other corporation into or with the Corporation shall
constitute a liquidation, dissolution or winding up, voluntary or involuntary,
for the purposes of the foregoing paragraph. After the payment to the holders
of the shares of Series B Preferred Stock of the full preferential amounts
provided for above, the holders of the shares of Series B Preferred Stock as
such shall have no right or claim to any of the remaining assets of the
Corporation.
In the event the assets of the Corporation available for
distribution to the holders of the shares of Series B Preferred Stock upon any
liquidation, dissolution or winding up of the Corporation,
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whether voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled as provided above, no such
distribution shall be made on account of any other stock of the Corporation
ranking on a parity with the Preferred Stock as to the distribution of assets
upon such liquidation, dissolution or winding up unless a pro rata distribution
is made on the Series B Preferred Stock and such other stock of the
Corporation, with the amount allocable to each series of such stock determined
on the basis of the aggregate liquidation preference of the outstanding shares
of each series and distributions to the shares of each series being made on a
pro rata basis.
5. Voting Rights.
(i) The holders of shares of Series B Preferred Stock
will not be entitled to vote, except as set forth below or as expressly
required by applicable law. In exercising any such vote, each outstanding share
of Series B Preferred Stock shall be entitled to one vote.
(ii) If the equivalent of six quarterly dividends
payable on the Series B Preferred Stock or any other class or series of
preferred stock ranking on a parity with the Series B Preferred Stock as to the
payment of dividends have not been paid, the Corporation has resolved to
increase the number of directors of the Corporation by two (without duplication
of any increase made pursuant to the terms of any other series of preferred
stock of the Corporation), and the holders of the Series B Preferred Stock,
voting as a single class with the holders of shares of any other class of the
preferred stock of the Corporation ranking on a parity with the Series B
Preferred Stock either as to dividends or distribution of assets and upon which
like voting rights have been conferred and are exercisable, will be entitled to
elect two directors at any meeting of stockholders of the Corporation at which
directors are to be elected held during the period such dividends remain in
arrears. Each class or series of preferred stock entitled to vote for the
additional directors shall have a number of votes proportionate to the
aggregate liquidation preference of its outstanding shares. Such voting right
shall continue until full cumulative dividends for all past dividend periods on
all such preferred stock of the Corporation, including any shares of the Series
B Preferred Stock, have been paid or declared and set apart for payment. Any
such elected directors shall serve until the Corporation's next annual meeting
of stockholders (notwithstanding that prior to the end of such term the right
to elect directors shall cease to exist) or until their respective successors
shall be elected and qualify.
(iii) Whenever such right shall vest, it may be exercised
initially either at a special meeting of holders of Series B Preferred Stock or
at any annual stockholders' meeting, but thereafter it shall be exercised only
at annual stockholders' meetings. Any director who shall have been elected by
the holders of Series B Preferred Stock as a class pursuant to this
subparagraph (iii) may be removed at any time, either for or without cause by,
and only by, the affirmative votes of the holders of record of a majority of
the outstanding shares of Series B Preferred Stock given at a special meeting
of such stockholders called for such purpose, and any vacancy created by such
removal may also be filled at such meeting. Any vacancy caused by the death or
resignation of a director who shall have been elected by the holders of Series
B Preferred Stock as a class pursuant to this subparagraph (iii) may be filled
only by the holders of all outstanding Series B Preferred Stock at a meeting
called for such purpose.
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Any meeting of the holders of all outstanding Series B
Preferred Stock entitled to vote as a class for the election or removal of
directors shall be held at the place at which the last annual meeting of
stockholders was held. At such meeting, the presence in person or by proxy of
the holders of a majority of the outstanding shares of all outstanding Series B
Preferred Stock shall be required to constitute a quorum; in the absence of a
quorum, a majority of the holders present in person or by proxy shall have the
power to adjourn the meeting from time to time without notice, other than
announcement at the meeting, until a quorum shall be present.
(iv) So long as any Series B Preferred Stock is
outstanding, the affirmative vote or consent of the holders of at least 80% of
the outstanding shares of the Series B Preferred Stock will be required for any
amendment of the Restated Certificate of Incorporation of the Corporation (or
any certificate supplemental thereto) which will adversely affect the powers,
preferences, privileges or rights of the Series B Preferred Stock. The
affirmative vote or consent of the holders of at least 80% of the outstanding
shares of the Series B Preferred Stock and any other series of the preferred
stock of the Corporation ranking on a parity with the Series B Preferred Stock
either as to dividends or upon liquidation, voting as a single class without
regard to series, will be required to issue, authorize or increase the
authorized amount of, or issue or authorize any obligation or security
convertible into or evidencing a right to purchase, any additional class or
series of stock ranking prior to the Series B Preferred Stock as to dividends
or upon liquidation, or to reclassify any authorized stock of the Corporation
into such prior shares, but such vote will not be required for the Corporation
to take any such actions with respect to any stock ranking on a parity with or
junior to the Series B Preferred Stock.
The affirmative vote or consent of the holders of a majority
of all the outstanding shares of Series B Preferred Stock, voting or consenting
separately as a class, shall be required to approve any merger, conversion,
consolidation or compulsory share exchange to which the Corporation is a party,
unless (i) the terms of such merger, conversion, consolidation or compulsory
share exchange do not provide for a change in the terms of the Series B
Preferred Stock and (ii) the Series B Preferred Stock is on a parity with or
prior to (in respect of the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up) any other class or series of
capital stock authorized by the surviving corporation, other than any class or
series of stock of the Corporation ranking senior as to the Series B Preferred
Stock either as to the payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of the Corporation and previously
authorized with the consent of holders of Series B Preferred Stock as described
herein (or other than any capital stock into which such prior stock is
converted as a result of such merger, consolidation or compulsory share
exchange).
In addition, if the holders of the shares of the Series B
Preferred Stock are entitled to vote upon or consent to a merger,
consolidation, conversion or compulsory share exchange of the Corporation, and
if the Corporation offers to purchase all of the outstanding shares of the
Series B Preferred Stock (the "Offer"), then each holder of the Series B
Preferred Stock who does not sell its shares of Series B Preferred Stock
pursuant to the Offer shall be deemed irrevocably to have voted or consented
all shares of Series B Preferred Stock owned by such holder in favor of the
merger or consolidation of the Corporation without any further action by the
holder. The Offer shall be at a price of $1,000 per share, together with
accrued and unpaid dividends (whether or not declared) to the date fixed for
repurchase including any increase in dividends payable due to changes in the
Dividends Received
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Percentage and Additional Dividends. The Offer shall remain open for acceptance
for a period of at least 30 days.
6. Redemption. Prior to August 25, 2008, the Series B Preferred
Stock is not redeemable, except as set forth herein. On or after such date,
each share of Series B Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation, at any time and from time to time, out
of funds legally available therefor, at a redemption price of $1,000 per share,
plus accrued and unpaid dividends (whether or not declared) to the date fixed
for redemption, including any increase in dividends payable due to changes in
the Dividends Received Percentage and Additional Dividends. If fewer than all
the outstanding shares of Series B Preferred Stock are to be redeemed, the
Corporation will select those to be redeemed by lot or pro rata or by any other
method as may be determined by the Board of Directors to be equitable.
If, prior to 18 months after the date of the original issuance of the
Series B Preferred Stock, one or more amendments to the Code are enacted which
result in a reduction of the Dividend Received Percentage to 50% or less, the
Corporation, at its option may redeem all, but not less than all, of the
outstanding shares of Series B Preferred Stock provided that, within 60 days of
the date on which an amendment to the Code is enacted which changes the
Dividend Received Percentage to 50% or less, the Corporation sends notice to
holders of the Series B Preferred Stock of such redemption. Any redemption of
the Series B Preferred Stock pursuant to this paragraph will take place on the
date specified in the notice, which date shall not be less than 30 or more than
60 days from the date such notice is sent to holders of the Series B Preferred
Stock. Any redemption of the Series B Preferred Stock in accordance with this
paragraph shall be at a redemption price equal to the greater of (i) $1,000 per
share of the Series B Preferred Stock (the "Liquidation Value") to be redeemed
or (ii) the sum of the present values of the Remaining Scheduled Dividends
prior to August 25, 2028 and the Liquidation Value assuming payment on August
25, 2028, discounted to the redemption date on a quarterly basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield plus
zero basis points, excluding any increase in dividends payable due to changes
in the Dividend Received Deduction Percentage, if any, plus in the case of (i)
or (ii) accrued and unpaid dividends (whether or not declared) to the date
fixed for redemption.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Rate for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity of August 25,
2028 that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities maturing on or about August 25, 2028. "Independent Investment
Banker" means Smith Barney Inc. or, if such firm is unwilling or unable to
select the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Corporation.
"Comparable Treasury Rate" means, as of any date of determination, the
yield to maturity implied by (i) the yields reported, as of 10:00 A.M. (New
York City time) on the second business day preceding such date of determination
on the display designated as "Page 678" on the Telerate
8
<PAGE> 9
Access Service (or such other display as may replace Page 678 on Telerate
Access Service) for actively traded U.S. Treasury securities having a 30-year
maturity as of such date of determination, or (ii) if such yields are not
reported as of such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported, for the
latest day for which such yields have been so reported as of the second
business day preceding the date of determination in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a 30-year constant maturity as of such
date of determination.
"Remaining Scheduled Dividends" means cumulative cash dividends at a
rate of 5.68% of the Liquidation Value per share of Series B Preferred Stock
equivalent to $56.80 per annum per share of Series B Preferred Stock from the
date specified in the notice until August 25, 2028.
Not more than 60 nor less than 30 days prior to the redemption date,
notice by first class mail, postage prepaid, shall be given to the holders of
record of the Series B Preferred Stock to be redeemed, addressed to such
stockholders at their last addresses as shown on the books of the Corporation.
Each such notice of redemption shall specify the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made
upon presentation and surrender of the shares of Series B Preferred Stock and
that on and after the redemption date, dividends will cease to accumulate on
such shares.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of Series B
Preferred Stock receives such notice; and failure to give such notice by mail,
or any defect in such notice, to the holders of any shares designated for
redemption shall not affect the validity of the proceedings for the redemption
any other shares of Series B Preferred Stock. On or after the date fixed for
redemption as stated in such notice, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. If less than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares. If, on the date
fixed for redemption, funds necessary for the redemption shall be available
therefor and shall have been irrevocably deposited or set aside, then,
notwithstanding that the certificates evidencing any shares so called for
redemption shall not have been surrendered, the dividends with respect to the
shares so called shall cease to accumulate after the date fixed for redemption,
the shares shall no longer be deemed outstanding, the holders thereof shall
cease to be stockholders with respect to such shares, and all rights whatsoever
with respect to the shares so called for redemption (except the right of the
holders to receive the redemption price without interest upon surrender of
their certificates therefor) shall terminate.
The Series B Preferred Stock is not subject to any mandatory
redemption, sinking fund or other similar provisions.
7. Outstanding Shares. For purposes of this Certificate of
Designations, all shares of Series B Preferred Stock shall be deemed
outstanding, except (i) from the date fixed for redemption pursuant to Section
6 hereof, all shares of Series B Preferred Stock that have been so called for
redemption under
9
<PAGE> 10
Section 6; and (ii) from the date of registration of transfer, all shares of
Series B Preferred Stock held of record by the Corporation or any subsidiary of
the Corporation.
8. Preemptive Rights. The Series B Preferred Stock is not entitled to
any preemptive or subscription rights in respect of any securities of the
Corporation.
9. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid
under applicable law.
10. Fractional Shares. The Series B Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of
holders of Series B Preferred Stock.
11. Reversion to Corporation. Subject to applicable escheat laws, any
monies set aside by the Corporation in respect of any payment with respect to
shares of the Series B Preferred Stock, or dividends thereon, and unclaimed at
the end of two years from the date upon which such payment is due and payable
shall revert to the general funds of the Corporation, after which reversion the
holders of such shares shall look only to the general funds of the Company for
the payment thereof. Any interest accrued on funds so deposited shall be paid
to the Corporation from time to time.
10
<PAGE> 11
This Certificate shall be effective as of August 21, 1998.
IN WITNESS WHEREOF, said Apache Corporation has caused this Certificate to be
signed by Raymond Plank, its Chairman and Chief Executive Officer, and attested
by Cheri L. Peper, its Corporate Secretary, this 20th day of August, 1998.
<TABLE>
<S> <C>
ATTEST: APACHE CORPORATION
/s/ Cheri L. Peper /s/ Raymond Plank
- --------------------------------------------------- ---------------------------------------------------
Name: Cheri L. Peper Name: Raymond Plank
Title: Corporate Secretary Title: Chairman and Chief Executive Officer
</TABLE>
11
<PAGE> 1
EXHIBIT 4.2
Countersigned:
NORWEST BANK MINNESOTA, N.A.,
South St. Paul, Minnesota Transfer Agent and Registrar
By: ____________________________________
Authorized Signature
Incorporated under the Laws of the State of Delaware
[APACHE LOGO]
5.68% CUMULATIVE PREFERRED STOCK SERIES B
NUMBER ______________ ____________ SHARES
CUSIP 037411 50 1
See reverse for certain definitions
This Certifies That _____________________________________________________
is the owner of _________________________________________________________
fully paid and non-assessable shares of the 5.68% Cumulative Preferred Stock
Series B, no par value per share, of Apache Corporation, transferable only on
the books of the corporation by the holder hereof in person or by attorney upon
surrender of this certificate properly endorsed.
A statement of the relative rights, preferences and restrictions of the shares
of stock which the corporation is authorized to issue will be furnished without
charge to each stockholder upon request therefor.
IN WITNESS WHEREOF, the said corporation has caused this certificate to be
signed by its duly authorized officers and to be sealed with the seal of the
corporation.
Dated ______________________________, 1998
____________________________ _______________________________
Cheri L. Peper, Secretary G. Steven Farris, President
[Apache Corporation Seal]
<PAGE> 2
APACHE CORPORATION
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C> <C>
TEN COM --- as tenants in common UNIF TRF MIN ACT --- _____ Custodian _______
(cust) (minor)
TEN ENT --- as tenants by the entireties Under Uniform Transfers to Minors
JT TEN --- as joint tenants with right of Act __________________
survivorship and not as tenants (State)
in common
</TABLE>
Additional abbreviations may also be used though not in the above list
For value received, ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
_______________________________________
Please Print or Typewrite Name and Address Including Postal Zip Code of
Assignee
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _____________________________________________
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated: ________________________________
_____________________________________
NOTICE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS WRITTEN UPON THE FACE OF THE --->
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER. _____________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY ELIGIBLE GUARANTOR INSTITUTION,
(Banks, Stockbrokers, Savings And
Loan Associations And Credit Unions)
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM
PURSUANT TO S.E.C. RULE 17 AD-15.
<PAGE> 1
EXHIBIT 99.3
[Apache Corporation Letterhead]
APACHE OFFERS $100 MILLION OF 5.68% NONCONVERTIBLE PREFERRED
CONTACTS:
(Media): Tony Lentini (713) 296-6227
Bill Mintz (713/296-7276)
(Investor): Robert Dye (713) 296-6662
Houston (August 20, 1998) - Apache Corporation (NYSE: APA) today announced the
offering of $100 million of 5.68 percent Series B Cumulative Preferred Stock.
These perpetual preferred shares are not convertible into other securities of
the Company.
Net proceeds of the issue will be used to repay debt outstanding under several
money market lines of credit and to reduce outstanding borrowings under the
Canadian portion of Apache's global credit facility.
Salomon Smith Barney is the underwriter for the offering, which is expected to
close on August 25, 1998.
The shares are redeemable at the company's option on or after August 25, 2008,
or earlier under certain other conditions related to changes in existing tax
law. Dividends will be paid quarterly, commencing on October 30, 1998.
"This offering enables Apache to raise capital at an extremely favorable rate
without issuing additional common shares and diluting shareholders' equity,"
said Roger B. Plank, chief financial officer.
Apache Corporation is a large oil and gas independent with operations in North
America, Egypt, Western Australia, Poland, People's Republic of China, Cote
d'Ivoire and Indonesia. Its shares are traded on the New York and Chicago stock
exchanges.
-end-
