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EXHIBIT 4.5
APACHE CORPORATION
DEFERRED DELIVERY PLAN
As Amended and Restated July 20, 2000
Effective as of May 3, 2000
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APACHE CORPORATION
DEFERRED DELIVERY PLAN
AS AMENDED AND RESTATED JULY 20, 2000
EFFECTIVE AS OF MAY 3, 2000
Apache Corporation ("Apache"), a Delaware corporation (hereinafter
referred to, together with its Affiliated Entities (as defined below), as the
"Company" except where the context otherwise requires), established the Apache
Corporation Deferred Delivery Plan effective as of February 10, 2000. The Plan
(as defined below) provides Participants (as defined below) with an opportunity
to defer income and permits the grant of Stock Bonus Awards (as defined below)
to Participants selected by the Committee (as defined below), in consideration
of the valuable past services provided by Participants to the Company.
The Plan is intended to provide Participants with added incentives and
to induce them to remain in the employ of the Company. The Company intends that
the Plan shall not be treated as a "funded" plan for purposes of either the Code
or the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
Defined terms used in this Plan shall have the meanings set forth
below:
1.01 Account
"Account" means the memorandum account maintained for each Participant
to which shall be credited all Deferred Amounts (including any Stock
Bonus Award), all Company Match made on behalf of a Participant, and
all adjustments thereto.
1.02 Affiliated Entity
"Affiliated Entity" means any corporation or other legal entity
(including but not limited to a partnership) which is affiliated with
Apache through stock ownership or otherwise and is treated as a common
employer under the provisions of Sections 414(b) and (c) or any
successor sections of the Code.
1.03 Code
"Code" means the Internal Revenue Code of 1986, as amended.
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1.04 Committee
"Committee" means the Stock Option Plan Committee of Apache's Board of
Directors.
1.05 Company Match
"Company Match" means the allocations to a Participant's Account made
pursuant to Section 3.02.
1.06 Compensation
"Compensation" shall mean the one-time 1999 discretionary award and/or
income from any Stock Bonus Award and/or future exercises of
non-qualified employee stock options granted to the Participants
pursuant to Apache's 1990 Stock Incentive Plan, 1995 Stock Option Plan,
1998 Stock Option Plan, 2000 Stock Option Plan or any future plan under
which employee stock options may be granted. The Committee and/or the
Board of Directors may from time to time designate other forms of
remuneration that are available for deferral into the Plan.
1.07 Deferred Amounts
"Deferred Amounts" means the amounts of a Participant's Compensation,
which are deferred and credited to the Participant's Account pursuant
to Section 3.01.
1.08 Election Agreement
"Election Agreement" means an application for participation in the
Plan, execution of which by an eligible employee is required under
Article II for the Participant to elect or acknowledge Deferred
Amounts.
1.09 Fair Market Value
"Fair Market Value" means the closing price of the Stock as reported on
The New York Stock Exchange, Inc. Composite Transactions Reporting
System for a particular date. If there are no Stock transactions on
such date, the Fair Market Value shall be determined as of the
immediately preceding date on which there were Stock transactions.
1.10 Participant
"Participant" means any eligible employee selected to participate in
this Plan pursuant to Section 2.01.
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1.11 Plan
"Plan" means the Apache Corporation Deferred Delivery Plan as set forth
herein, including Annex A.
1.12 Plan Year
"Plan Year" means the period during which the Plan records are kept.
The Plan Year shall be the calendar year.
1.13 Stock
"Stock" means the $1.25 par value common stock of Apache.
1.14 Stock Bonus Award
"Stock Bonus Award" means any grant of Stock Units made pursuant to
Annex A.
1.15 Stock Units
"Stock Units" means investment units, each of which is deemed to be
equivalent to one share of Stock.
1.16 Trust
"Trust" means the trust or trusts, if any, created by the Company to
provide funding for the distribution of benefits in accordance with the
provisions of the Plan. The assets of any such Trust shall remain
subject to the claims of the Company's general creditors in the event
of the Company's insolvency.
1.17 Trust Agreement
"Trust Agreement" means the written instrument pursuant to which each
separate Trust is created.
1.18 Trustee
"Trustee" means one or more banks, trust companies or insurance
companies designated by the Company to hold the Trust fund and to pay
benefits and expenses as authorized by the Committee in accordance with
the terms and provisions of the Trust Agreement.
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1.19 Headings; Gender and Number
The headings contained in the Plan are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Plan.
Except when otherwise indicated by the context, the masculine gender
shall also include the feminine gender, and the definition of any term
herein in the singular shall also include the plural.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility and Participation
The Committee shall from time to time in its sole discretion select
those employees of the Company who are eligible to participate in the
Plan from among a select group of key employees.
2.02 Election
Employees who have been selected by the Committee to participate in the
Plan shall complete the election procedure specified by the Committee.
The election procedure may include form(s) for the employee to (a)
designate a beneficiary (pursuant to Article V), (b) elect or
acknowledge Deferred Amounts by entering into an Election Agreement
with the Company (pursuant to Section 3.01), (c) select a payment
option for the eventual distribution of his Account (pursuant to
Article V), and (d) provide such other information as the Committee may
reasonably require.
2.03 Failure of Eligibility
The Committee shall have the authority to determine that a Participant
is no longer eligible to participate in the Plan. No Company Match or
Stock Bonus Award shall be made, no Deferred Amounts withheld from a
Participant's Compensation, and no dividend amounts credited to a
Participant's Account after he ceases to be eligible to participate in
the Plan. The determination of the Committee with respect to the
termination of participation in the Plan shall be final and binding on
all parties affected thereby. Except as provided in Section 5.01, any
benefits vested hereunder, at the time the Participant becomes
ineligible to continue participation, shall be distributable in
accordance with the provisions of the Plan.
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ARTICLE III
CONTRIBUTION DEFERRALS
3.01 Participant Deferrals
(a) General. A Participant may elect to defer a portion of his
Compensation and/or acknowledge the deferral of income from the
grant of a Stock Bonus Award by filing the appropriate Election
Agreement with the Committee's designee. Deferred Amounts related
to the one-time 1999 discretionary award, and to such other
remuneration as may be designated from time to time, shall be
deducted through payroll withholding from the Participant's cash
Compensation payable by the Company, and shall be credited to the
Participant's Account on or about the date the amounts are
deducted. Deferred Amounts from the deferral of income from the
exercise of non-qualified stock option grants or from the grant of
a Stock Bonus Award shall be credited to the Participant's Account
on or about the date of the stock option exercise or the grant
date of the Stock Bonus Award.
(b) Initial Enrollment. When an employee first is selected to
participate in the Plan, pursuant to Section 2.01, the Committee's
designee shall provide him with an election form, which, when
properly completed and timely returned to the Committee's designee
shall constitute an Election Agreement. To be effective, the
Election Agreement must be completed and returned to the
Committee's designee by the deadline established by the Committee.
The employee may elect to defer (i) up to 100 percent of the
one-time 1999 discretionary award, and (ii) such percentage up to
100 percent of income from stock options exercised in the Plan
Year indicated, divisible into such increments as may be
designated by the Committee; however, 100 percent of income from
the grant of any Stock Bonus Award shall be deferred. The Election
Agreement shall be effective immediately upon receipt by the
Committee's designee; however, Election Agreements related to the
deferral of income from stock option exercises must be completed
and returned not less than six months in advance of the
Participant's intended exercise date. Each Election Agreement
shall be irrevocable for the deferral of the one-time 1999
discretionary award, or the deferral of income from (i) stock
options exercised in the Plan Year indicated or (ii) from the
grant of any Stock Bonus Award.
(c) Continuing Election. A Participant shall enter into a separate
Election Agreement for (i) the deferral of income from stock
options exercises in the Plan Year indicated, (ii) the deferral of
income from the grant of any Stock Bonus Award, or (iii) any other
deferral opportunity offered by the Committee. To be effective,
the Election Agreement must be completed and returned to the
Committee's designee by the deadline established by the Committee;
however, Election Agreements related to the deferral of income
from stock option exercises must be completed and returned not
less than six months in advance of the Participant's intended
exercise date. Each Election Agreement shall be irrevocable.
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(d) Participant Becomes Ineligible. A Participant's Election
Agreement(s) shall be canceled immediately if and when the
Participant becomes ineligible to participate in the Plan.
3.02 Company Match
The Company shall credit to a Participant's Account matching
contributions equal to the Participant's Deferred Amount related to the
1999 one-time discretionary award. The Committee may from time to time
in its sole discretion designate such other forms of remuneration that
are available for deferral into the Plan, as well as such other
matching contributions as the Committee deems appropriate. The Company
Match shall be invested as specified in Article IV.
ARTICLE IV
INVESTMENT OF DEFERRALS AND ACCOUNTING; VOTING
4.01 Investments
(a) All amounts credited to a Participant's Account shall be invested
in Stock Units, with the number of Stock Units determined using
the Fair Market Value of one share of the Stock for the date on
which the amount is credited to the Participant's Account. Amounts
equal to any cash dividends declared on the Stock shall be
credited to the Participant's Account as of the payment date for
such dividend in proportion to the number of Stock Units in the
Participant's Account as of the record date for such dividend.
Such dividend amounts shall be invested in Stock Units, with the
number of Stock Units determined using the Fair Market Value of
the Stock on the dividend payment date, and such Stock Units shall
vest pursuant to Section 5.01.
(b) Nothing contained in this Section shall be construed to give any
Participant any power or control to make investment decisions or
otherwise influence in any manner the investment and reinvestment
of assets contained within any investment alternative, such
control being at all times retained in the full discretion of the
Committee. Nothing contained in this Section shall be construed to
require the Company or the Committee to fund any Participant's
Account.
4.02 Voting
Participants shall have no right to vote any Stock Units prior to the
date on which such Stock Units are subject to distribution and shares
of Stock are issued therefor.
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ARTICLE V
DISTRIBUTIONS
5.01 Vesting
(a) The portion of a Participant's Account attributable to Deferred
Amounts from the one-time 1999 discretionary award and related to
stock option exercises shall be fully vested; however, the portion
of a Participant's Account attributable to Deferred Amounts
related to the grant of any Stock Bonus Award or to such other
remuneration as may be designated from time to time shall vest on
such terms as may from time to time be determined by the
Committee.
(b) A Participant shall vest in the portion of his Account that is
attributable to the Company Match for the 1999 one-time
discretionary award as follows: 50 percent on the date six months
following the date of deferral and the remaining 50 percent on the
date twelve months following the date of deferral.
(c) If a Participant retires or becomes disabled (as defined by the
Company's Long Term Disability Plan) while still employed by the
Company, no vesting occurs subsequent to the date of retirement or
disability and all unvested portions of the Participant's Account
shall be forfeited immediately.
(d) If a Participant dies while still employed by the Company, any
unvested portion of the Participant's Account shall be immediately
vested.
(e) If a Participant's employment is terminated other than for cause
as defined herein, no further vesting of unvested portions of the
Participant's Account shall occur and all unvested portions
thereof shall be forfeited immediately.
(f) If the employment of the Participant is terminated for cause as
determined by the Company, the Participant's entire Account
balance (including any Deferred Amounts) shall be forfeited
immediately. As used in this subsection, "cause" shall mean a
gross violation, as determined by the Company, of the Company's
established policies and procedures. The effect of this subsection
shall be limited to determining the consequences of a termination
and nothing in this subsection shall restrict or otherwise
interfere with Company's discretion with respect to termination of
any employee.
(g) Stock Units attributable to dividend amounts credited to a
Participant's Account pursuant to Section 4.01 shall vest as the
corresponding Stock Units vest. As used in this subsection,
"corresponding Stock Units" shall mean those Stock Units on which
the dividend amounts are calculated.
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5.02 Distribution During Employment
(a) While a Participant is employed by the Company, the only available
distribution is a distribution pursuant to the terms of the
applicable Election Agreement beginning five years after the date
of deferral pursuant to the Election Agreement(s) on file for the
Participant. Any distribution shall be paid in whole shares of
Stock, delivered in the number of installments designated by the
Participant in the applicable Election Agreement and, coincident
with delivery of the last such installment, any fractional shares
shall be paid in cash.
(b) If a Participant has elected to take his distribution in
installments, the first installment shall be delivered within 90
days after the corresponding date five years after the date of
deferral, and each subsequent installment shall be delivered not
later than March 31st of the following calendar year.
(c) If a Participant remains employed by the Company, a Participant
may elect to further defer for an additional five years his
distribution by executing a new Election Agreement at least six
months prior to the first installment due pursuant to the
Participant's previous election.
5.03 Distributions After Employment
Distributions after the Participant's death are discussed in Section
5.04. All other distributions shall be made as set forth below:
(a) Timing. The Participant's vested Account shall be distributed
after the Participant terminates employment with the Company and
the distribution shall be made pursuant to the Participant's
Election Agreement(s). If a Participant has elected to take his
distribution in installments, the first installment shall be
delivered within 90 days after the Participant's termination date
and each subsequent installment shall be delivered not later than
March 31st of the following calendar year.
(b) Form of Distribution. The Participant's entire vested Account
shall be paid in whole shares of Stock, delivered in the number of
installments designated pursuant to the Election Agreement(s)
executed by the Participant and, coincident with delivery of the
last such installment, any fractional shares shall be paid in
cash.
(c) Minimum Distribution. If, as of the Participant's termination
date, the value of his entire vested Account is $50,000 or less,
the Participant's vested Account balance shall be distributed in
one lump sum and such distribution shall be made within 90 days of
the Participant's termination date.
(d) Reemployment. If a Participant is reemployed by the Company before
his entire vested Account balance is paid, installments from the
Plan shall be suspended.
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Installments will resume after the Participant again terminates
employment. The number of remaining installments shall be the
number of annual installments originally designated pursuant to
the Election Agreement(s) executed by the Participant, less the
number of installments received before the Participant was
re-employed. If the Participant dies before receiving all
installments, Section 5.04 shall apply.
5.04 Distributions After Participant's Death
(a) Each Participant shall designate one or more persons, trusts or
other entities as his beneficiary (the "Beneficiary") to receive
any amounts distributable hereunder at the time of the
Participant's death. In the absence of an effective Beneficiary
designation as to part or all of a Participant's interest in the
Plan, such amount shall be distributed to the Participant's
surviving spouse, if any, otherwise to the personal representative
of the Participant's estate.
(b) A Beneficiary designation may be changed by the Participant at any
time and without the consent of any previously designated
Beneficiary. However, if the Participant is married, his spouse
shall be his Beneficiary unless such spouse has consented to the
designation of a different Beneficiary. To be effective, the
spouse's consent must be in writing, witnessed by a notary public,
and filed with the Committee's designee. If a Participant has
designated his spouse as a Beneficiary or as a contingent
Beneficiary, and the Participant and that spouse subsequently
divorce, then such Beneficiary designation shall be void and of no
effect with respect to such spouse on and after the day such
divorce is final.
(c) When a Participant dies, his remaining vested Account balance
shall be distributed to his Beneficiary in one lump sum as soon as
administratively possible after his death, regardless of the
payment schedule the Participant elected, and regardless of
whether installment payments had begun. Such distribution shall be
paid in whole shares of Stock, with any fractional shares paid in
cash.
5.05 Withholding
At the time of distribution, the Plan shall withhold from such
distribution any taxes or other amounts that are required to be
withheld pursuant to any applicable law or such greater amount as
requested by the Participant. The Committee may direct the Plan to
withhold additional amounts from any payment to repay the Participant's
debt or obligation to the Company or at the request of the Participant.
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ARTICLE VI
ADMINISTRATION
6.01 Committee to Administer and Interpret Plan
The Plan shall be administered by the Committee. The Committee shall
have all discretion and powers necessary for administering the Plan,
including, but not by way of limitation, full discretion and power to
interpret the Plan, to determine the eligibility, status and rights of
all persons under the Plan and, in general, to decide any dispute. The
Committee shall direct the Company, the Trustee, or both, as the case
may be, concerning distributions in accordance with the provisions of
the Plan. The Committee's designee shall maintain all Plan records
except records of any Trust.
6.02 Organization of Committee
The Committee shall adopt such rules as it deems desirable for the
conduct of its affairs and for the administration of the Plan. It may
appoint designees and/or agents (who need not be members of the
Committee) to whom it may delegate such powers as it deems appropriate,
except that the Committee shall determine any dispute. The Committee
may make its determinations with or without meetings. The Committee may
authorize one or more of its members, designees or agents to sign
instructions, notices and determinations on its behalf. The action of a
majority of the Committee's members shall constitute the action of the
Committee.
6.03 Agent for Process
Apache's Vice President and General Counsel and Apache's Corporate
Secretary shall each be an agent of the Plan for service of all
process.
6.04 Determination of Committee Final
The decisions made by the Committee shall be final and conclusive on
all persons.
ARTICLE VII
TRUST
7.01 Trust Agreement
The Company may, but shall not be required to, adopt a separate Trust
Agreement for the holding and administration of the funds contributed
to Accounts under the Plan. The Trustee shall maintain and allocate
assets to a separate account for each Participant under the Plan. The
assets of any such Trust shall remain subject to the claims of the
Company's general creditors in the event of the Company's insolvency.
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7.02 Expenses of Trust
The parties expect that any Trust created pursuant to Section 7.01 will
be treated as a "grantor" trust for federal and state income tax
purposes and that, as a consequence, such Trust will not be subject to
income tax with respect to its income. However, if the Trust should be
taxable, the Trustee shall pay all such taxes out of the Trust. All
expenses of administering any such Trust shall be a charge against and
shall be paid from the assets of such Trust.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.01 Amendment
(a) The Plan may be amended at any time and from time to time,
retroactively or otherwise; however, no amendment shall reduce any
vested benefit that has accrued on the effective date of such
amendment. Each Plan amendment shall be in writing and shall be
approved by the Committee and/or Apache's Board of Directors. An
officer of Apache to whom the Committee and/or Apache's Board of
Directors has delegated the authority to execute Plan amendments
shall execute each such amendment or the Plan document restated to
include all such Plan amendment(s).
(b) The Committee shall have the authority to adopt such
modifications, procedures and subplans as may be necessary or
desirable to comply with the provisions of the laws (including,
but not limited to, tax laws and regulations) of countries other
than the United States in which the Company may operate, so as to
assure the viability of the benefits of the Plan to Participants
employed in such countries.
8.02 Successors and Assigns; Termination of Plan
The Plan is binding upon Apache and its successors and assigns. The
Plan shall continue in effect from year to year unless and until
terminated by Apache's Board of Directors. Any such termination shall
operate only prospectively and shall not reduce any vested benefit that
has accrued on the effective date of such termination.
ARTICLE IX
STOCK SUBJECT TO THE PLAN
9.01 Number of Shares
Subject to Section 4.01 and Annex A, and to adjustment pursuant to
Section 9.03 hereof, one million (1,000,000) shares of Stock are
authorized for issuance under the Plan in accordance with the
provisions of the Plan and subject to such restrictions or other
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provisions as the Committee may from time to time deem necessary. This
authorization may be increased from time to time by approval of the
Board and the stockholders of Apache if, in the opinion of counsel for
the Company, such stockholder approval is required. Shares of Stock
distributed under the terms of the Plan and shares of Stock equal to
the number of Stock Units credited to Participants' Accounts maintained
under the Plan shall be applied to reduce the maximum number of shares
of Stock remaining available for use under the Plan; however, shares of
Stock represented by any Stock Units related to the exercise of stock
options shall retain their authorization under the applicable stock
option plan and shall not be applied to reduce the number of shares of
Stock remaining available for use under the Plan. Apache, at all times
during the existence of the Plan and while any Stock Units are credited
to Participants' Accounts maintained under the Plan, shall retain as
Stock in Apache's treasury at least the number of shares from time to
time required under the provisions of the Plan, or otherwise assure
itself of its ability to perform its obligations hereunder.
9.02 Other Shares of Stock
The shares of Stock represented by any Stock Units that are forfeited,
and any shares of Stock that for any other reason are not issued to a
Participant or are forfeited, shall automatically become available for
use under the Plan.
9.03 Adjustments for Stock Split, Stock Dividend, Etc.
If Apache shall at any time increase or decrease the number of its
outstanding shares of Stock or change in any way the rights and
privileges of such shares by means of the payment of a Stock dividend
or any other distribution upon such shares payable in Stock, or through
a Stock split, subdivision, consolidation, combination,
reclassification or recapitalization involving the Stock, then in
relation to the Stock that is affected by one or more of the above
events, the numbers, rights and privileges of the following shall be
increased, decreased or changed in like manner as if they had been
issued and outstanding, fully paid and nonassessable at the time of
such occurrence: (i) the shares of Stock remaining available for use
under the Plan; and (ii) the shares of Stock then represented by Stock
Units credited to Participants' Accounts maintained under the Plan.
9.04 Dividend Payable in Stock of Another Corporation, Etc.
If Apache shall at any time pay or make any dividend or other
distribution upon the Stock payable in securities or other property
(except money or Stock), a proportionate part of such securities or
other property shall be set aside for Stock Units credited to
Participants' Accounts maintained under the Plan and delivered to any
Participant upon distribution pursuant to the terms of the Plan. Prior
to the time that any such securities or other property are delivered to
a Participant in accordance with the foregoing, Apache shall be the
owner of such securities or other property and shall have the right to
vote the securities, receive any dividends payable on such securities,
and in all other respects shall
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be treated as the owner. If securities or other property which have
been set aside by Apache in accordance with this Section are not
delivered to a Participant because all or part of his Stock Units are
forfeited pursuant to the terms of the Plan, then the applicable
portion of such securities or other property shall remain the property
of Apache and shall be dealt with by Apache as it shall determine in
its sole discretion.
9.05 Other Changes in Stock
In the event there shall be any change, other than as specified in
Sections 9.03 and 9.04 hereof, in the number or kind of outstanding
shares of Stock or of any stock or other securities into which the
Stock shall be changed or for which it shall have been exchanged, and
if the Committee shall in its discretion determine that such change
equitably requires an adjustment in the number or kind of shares (i)
remaining available for use under the Plan and/or (ii) represented by
Stock Units credited to Participants' Accounts maintained under the
Plan, then such adjustments shall be made by the Committee and shall be
effective for all purposes of the Plan.
9.06 Rights to Subscribe
If Apache shall at any time grant to the holders of its Stock rights to
subscribe pro rata for additional shares thereof or for any other
securities of Apache or of any other corporation, there shall be
reserved with respect to the Stock Units credited to Participants'
Accounts maintained under the Plan the Stock or other securities which
the Participant would have been entitled to subscribe for if
immediately prior to such grant the shares of Stock represented by such
Stock Units had been issued and outstanding. If, at the time of
distribution under the terms of the Plan, the Participant subscribes
for the additional shares or other securities, the price that is
payable by the Participant for such additional shares or other
securities shall be withheld from such distribution pursuant to Section
5.05 hereof.
9.07 Change in Control
(a) In the event of a change in control of Apache as defined below,
then the Committee may, in its sole discretion, if it so elects,
take any of the following actions: (i) accelerate the vesting of
all unvested Stock Units credited to Participants' Accounts so
that such unvested stock Units become fully vested and payable,
which acceleration may be conditional upon the occurrence of
subsequent events including, without limitation, a change in
control, and may be irrevocable, either conditionally or
unconditionally; and (ii) make any other adjustments or amendments
to the unvested Stock Units as the Committee deems appropriate.
(b) For purposes of this Plan, a "change in control" shall mean any of
the events specified in Apache's Income Continuance Plan or any
successor plan which constitute a change in control within the
meaning of such plan.
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9.08 General Adjustment Rules
No adjustment or substitution provided for in this Article IX shall
require Apache to sell or otherwise issue a fractional share of Stock.
All benefits payable under the Plan shall be distributed in whole
shares of Stock, with any fractional shares paid in cash.
9.09 Determination by the Committee, Etc.
Adjustments under this Article IX shall be made by the Committee, whose
determinations with regard thereto shall be final and binding upon all
parties thereto.
ARTICLE X
REORGANIZATION OR LIQUIDATION
In the event that Apache is merged or consolidated with another corporation and
Apache is not the surviving corporation, or if all or substantially all of the
assets or more than 20 percent of the outstanding voting stock of Apache is
acquired by any other corporation, business entity or person, or in case of a
reorganization (other than a reorganization under the United States Bankruptcy
Code) or liquidation of the Company, and if the provisions of Section 9.07
hereof do not apply, the Committee, or the board of directors of any corporation
assuming the obligations of the Company, shall, as to the Plan and any Stock
Units credited to Participants' Accounts maintained under the Plan, either (i)
make appropriate provision for the adoption and continuation of the Plan by the
acquiring or successor corporation and for the protection of any Stock Units
credited to Participants' Accounts maintained under the Plan by the substitution
on a equitable basis of appropriate stock of Apache or of the merged,
consolidated or otherwise reorganized corporation which will be issuable with
respect to the Stock, provided that no additional benefits shall be conferred
upon the Participants with respect to such Stock Units as a result of such
substitution or (ii) upon written notice to the Participants, provide that all
distributions from the Plan shall be made within a specified number of days of
the date of such notice. In the latter event, the Committee shall accelerate the
vesting of all unvested Stock Units credited to Participants' Accounts so that
all such Stock Units become fully vested and payable prior to any such event.
ARTICLE XI
MISCELLANEOUS
11.01 Funding of Benefits -- No Fiduciary Relationship
Benefits shall be paid either out of the Trust or, if no Trust is in
existence or if the assets in the Trust are insufficient to provide
fully for such benefits, then such benefits shall be distributed by the
Company out of its general assets. Nothing contained in the Plan shall
be deemed to create any fiduciary relationship between the Company and
the Participants. Notwithstanding anything herein to the contrary, to
the extent that any
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person acquires a right to receive benefits under the Plan, such right
shall be no greater than the right of any unsecured general creditor of
the Company, except to the extent provided in the Trust Agreement, if
any.
11.02 Right to Terminate Employment
The Company may terminate the employment of any Participant as freely
and with the same effect as if the Plan were not in existence.
11.03 Inalienability of Benefits
No Participant shall have the right to assign, transfer, hypothecate,
encumber or anticipate his interest in any benefits under the Plan, nor
shall the benefits under the Plan be subject to any legal process to
levy upon or attach the benefits for payment for any claim against the
Participant or his spouse. If, notwithstanding the foregoing provision,
any Participant's benefits are garnished or attached by the order of
any court, the Company may bring an action for declaratory judgment in
a court of competent jurisdiction to determine the proper recipient of
the benefits to be distributed pursuant to the Plan. During the
pendency of the action, any benefits that become distributable shall be
paid into the court, as they become distributable, to be distributed by
the court to the recipient it deems proper at the conclusion of the
action.
11.04 Claims Procedure
(a) The Participant, his spouse or the authorized representative of
the claimant shall file all claims in writing, by completing such
procedures as the Committee shall require. Such procedures shall
be reasonable and may include the completion of forms and the
submission of documents and additional information.
(b) If a claim is denied, notice of denial shall be furnished by the
Committee to the claimant within 90 days after the receipt of the
claim by the Committee, unless special circumstances require an
extension of time for processing the claim, in which event
notification of the extension shall be provided to the Participant
or beneficiary and the extension shall not exceed 90 days.
(c) The Committee shall provide adequate notice, in writing, to any
claimant whose claim as been denied, setting forth the specific
reasons for such denial, specific reference to pertinent Plan
provisions, a description of any additional material or
information necessary for the claimant to perfect his claims and
an explanation of why such material or information is necessary,
all written in a manner calculated to be understood by the
claimant. Such notice shall include appropriate information as to
the steps to be taken if the claimant wishes to submit his claim
for review. The claimant or the claimant's authorized
representative may request such review within the reasonable
period of time prescribed by the Committee. In no event shall such
a period of time be less than 60 days. A decision on review
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<PAGE> 17
shall be made not later than 60 days after the Committee's receipt
of the request for review. If special circumstances require a
further extension of time for processing, a decision shall be
rendered not later than 120 days following the Committee's receipt
of the request for review. If such an extension of time for review
is required, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension. The
decision on review shall be furnished to the claimant. Such
decision shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood
by the claimant, as well as specific references to the pertinent
Plan provisions on which the decision is based.
11.05 Disposition of Unclaimed Distributions
Each Participant must file with the Company from time to time in
writing his post office address and each change of post office
address. Any communication, statement or notice addressed to a
Participant at his last post office address on file with the
Company, or if no address is filed with the Company, then at his
last post office address as shown on the Company's records, will
be binding on the Participant and his spouse for all purposes of
the Plan. The Company shall not be required to search for or
locate a Participant or his spouse.
11.06 Distributions Due Infants or Incompetents
If any person entitled to a distribution under the Plan is an
infant, or if the Committee determines that any such person is
incompetent by reason of physical or mental disability, whether or
not legally adjudicated an incompetent, the Committee shall have
the power to cause the distributions becoming due to such person
to be made to another for his benefit, without responsibility of
the Committee to see to the application of such distributions.
Distributions made pursuant to such power shall operate as a
complete discharge of the Company, the Trustee, if any, and the
Committee.
11.07 Governing Law
The Plan and all Election Agreements shall be construed in
accordance with the Code and, to the extent applicable, the laws
of the State of Texas excluding any conflicts-of-law provisions.
July 20, 2000
ATTEST: APACHE CORPORATION
/s/ Cheri L. Peper /s/ Daniel L. Schaeffer
---------------------------- ----------------------------------
Cheri L. Peper Daniel L. Schaeffer
Corporate Secretary Vice President, Human Resources
16 of 16
<PAGE> 18
ANNEX A
APACHE CORPORATION DEFERRED DELIVERY PLAN
STOCK BONUS AWARD PROVISIONS
From time to time, grants of stock bonus awards for specified numbers of Stock
Units (each a "Stock Bonus Award") may be made to Participants under the terms
of the Plan. Capitalized terms used in this Annex A shall have the meaning set
forth in the Plan or herein, as the case may be.
Grants of Stock Bonus Awards shall be made by the Committee. The Stock Units
covered by each Stock Bonus Award shall be credited to the Participant's Account
maintained under the Plan.
In accordance with the provisions of the Plan, the Committee shall, in its sole
discretion, select the Participants to receive Stock Bonus Awards. For each
stock Bonus Award, the Committee shall:
- specify the date of grant and number of Stock Units granted;
- designate the vesting provisions; and
- establish such other terms and requirements as deemed necessary or
desirable and consistent with the Plan.
Each Stock Bonus Award shall be evidenced by a written agreement containing the
particular provisions of such award and in such form as the Committee shall
determine.
Upon the grant and/or vesting of each Stock Bonus Award, the Participant shall
make appropriate arrangements with the Company to provide for the amount of all
applicable federal, state and local income and other tax withholding
requirements. As used in the Plan, the phrase "income from the grant of a Stock
Bonus Award" shall mean the amount calculated by multiplying (a) the number of
Stock Units covered by the Stock Bonus Award, times (b) the per share closing
price of the Stock as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for the date of grant. If there are no Stock
transactions on such date of grant, the per share closing price of the Stock
shall be determined as of the immediately preceding date on which there were
Stock transactions.
Except as set forth in this Annex A and/or in the applicable written agreement,
each Stock Bonus Award and the Stock Units related thereto shall be subject to
all other terms and conditions set forth in the Plan.
A-1
<PAGE> 19
--------------------------------------
THIS DOCUMENT CONSTITUTES PART OF A
PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED
UNDER THE U. S. SECURITIES
ACT OF 1933, AS AMENDED
--------------------------------------
APACHE CORPORATION
DEFERRED DELIVERY PLAN
ACKNOWLEDGEMENT OF STOCK BONUS AWARD
MAY 3, 2000
PARTICIPANT:
-------------------------------------------------
NUMBER OF STOCK UNITS:
-------------------------------------------------
VESTING PROVISIONS:
-------------------------------------------------
All of the terms, conditions and provisions contained in the Apache Corporation
Deferred Delivery Plan (the "Plan") to which this Acknowledgement is attached
are herein incorporated by reference in their entirety and shall be deemed to be
a part of this Acknowledgement to the same extent as if such terms, conditions
and provisions had been set forth in full herein.
The term "Election Agreement", as used in the Plan, shall include this
Acknowledgement. Capitalized terms used herein shall have the meaning set forth
in the Plan.
Executed as of the day and year set forth above.
APACHE CORPORATION PARTICIPANT
By: Daniel L. Schaeffer
-------------------------------- ------------------------------------
Its: Vice President, Human Resources [Participant Name]
------------------------------------
Social Security Number
------------------------------------
Address
------------------------------------
City, State, Zip Code
<PAGE> 20
APACHE CORPORATION DEFERRED DELIVERY PLAN
DEFERRAL OF INCOME FROM STOCK OPTION EXERCISE(S)
ANNUAL IRREVOCABLE ELECTION FORM - US CITIZEN
(BECOMES EFFECTIVE SIX MONTHS AFTER DATE OF ELECTION)
Participant Social Security Number/
Name: Employee Number:
-------------------------------------- ---------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Complete Parts I and II
I. STOCK OPTION INCOME - I elect to defer receipt of all or a portion of my
Income from Stock Option Exercise(s)
Note: This is an annual election and elections to defer Income from Stock
Option Exercise(s) must be completed each year. An election for income
deferral MUST be completed 6 months prior to a stock option exercise.
Each December 31 the deferral election for that year expires and a new
election must have been made and be in place to continue income
deferrals. Even if an exercise does not occur, the deferral election
remains in place for the remainder of the calendar year.
Choose A, B or C and fill in the Blank(s)
<TABLE>
<S> <C> <C>
__________ A. I elect to defer 100% of my Income from Stock Option Exercise(s) in __________(year)
__________ B. I elect to defer _____ % of my Income from Stock Option Exercise(s) in __________(year)
Designate the percent you wish to defer in increments of 1% up to 100%
__________ C. I do not wish to defer any of my Income from Stock Option Exercise(s) in _________(year)
(If you do not wish to defer income, proceed to signature section.)
</TABLE>
II. ACCOUNT DISTRIBUTION
IF you have already made an election to have your account distributed at
termination and you want the income deferred from this election to be
distributed at termination, there is no need to complete this section.
Proceed to Signature Section.
IF you want to have the income from this election deferred for 5 years, complete
Sections A and B below.
A. 5 YEAR DEFERRAL
__________ 1. I elect to have the income from this deferral distributed after
5 years - Can be renewed for another 5 years, if election made
6 months prior to distribution date.
B. 5 Year Deferral - Number of Annual Installments:
Choose 1 or 2
__________ 1. I elect to receive my account in one lump sum distribution
__________ 2. I elect to receive my account in 5 annual installments
------------------------------------- -----------------------------
Participant Signature Date
<PAGE> 21
APACHE CORPORATION
DEFERRED DELIVERY PLAN
IRREVOCABLE DISTRIBUTION ELECTION FORM - US CITIZEN
Participant Social Security Number/
Name: Employee Number:
-------------------------------------- ---------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
All income in your Account is recorded in stock units and distributions will be
made in whole shares of Apache Common Stock. Any fractional shares will remain
in your Account until final distribution and will be converted to and paid in
cash on the final distribution.
ACCOUNT DISTRIBUTION
You must make two elections about your Account distribution -
When to start Distribution & the Number of Annual Installments
A. When to Start Distribution
Choose 1 or 2
__________ 1. I elect to receive my Account distribution in 5 years -
Can be renewed for another 5 years, if election made 6
months prior to distribution date.
__________ 2. I elect to receive my Account distribution after I am no longer
employed by Apache.
B. 5 YEAR DEFERRAL - NUMBER OF ANNUAL INSTALLMENTS - COMPLETE THIS
SECTION IF YOU CHOSE A.1. ABOVE
(Annual installments will begin during the first quarter after the
fifth year of deferral)
Choose 1 or 2
__________ 1. I elect to receive my Account in one lump sum distribution.
__________ 2. I elect to receive my Account 5 annual installments.
C. Termination Deferral - Number of Annual Installments - complete
this section if you chose A.2. above (The first installment will
be paid within 90 days of termination; each subsequent
installment will be paid during the first calendar quarter of
each year thereafter) IF you elect annual installments, your full
Account will be distributed, as per this election and no
additional distribution elections will need to be made.
Choose 1, 2 or 3
__________ 1. I elect to receive my Account in one lump sum distribution.
(If Account balance is less than $5,000, full Account will be
distributed in lump sum regardless of election)
__________ 2. I elect to receive my Account in 5 annual installments.
__________ 3. I elect to receive my Account in 10 annual installments.
------------------------------------- -----------------------------
Participant Signature Date
<PAGE> 22
APACHE CORPORATION DEFERRED DELIVERY PLAN (THE "PLAN")
BENEFICIARY DESIGNATION
Participant Social Security Number/
Name: Employee Number:
-------------------------------------- ---------------------------------
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
I understand that if I am survived by a spouse, my spouse is the beneficiary and
is entitled to receive upon my death my vested Account balance distributable
under the terms of the Plan. However, if I am not married or if my spouse
consents on the Spousal Consent Form below, my vested Account balance
distributable under the terms of the Plan may be paid to another beneficiary or
beneficiaries. I understand that this designation may be changed or revoked by
me upon receipt by [Apache Corporation] of a new designation of beneficiary or
beneficiaries or notice of revocation.
[ ] I am married. [ ] I am not married.
Pursuant to the provisions of the Plan, I hereby designate the following
beneficiary or beneficiaries to receive, upon my death, my vested Account
balance distributable under the terms of the Plan:
THIS DESIGNATION IS SUBJECT TO THE CONDITIONS SHOWN BELOW*
Name Relationship Percentage
Primary:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Contingent:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
*CONDITIONS APPLICABLE TO DESIGNATION OF BENEFICIARY:
Except as otherwise provided below or by the provisions of the Plan, my vested
Account balance distributable under the terms of the Plan paid by reason of my
death is subject to the following conditions:
(a) If I am married at my death, my vested Account balance
distributable under the terms of the Plan shall be paid to my
surviving spouse unless my spouse consents on the Spousal Consent
Form below;
(b) If (a) does not apply, my vested Account balance distributable
under the terms of the Plan shall be paid in equal shares, unless
otherwise specified above, to such of the Primary Beneficiaries as
survive me;
(c) If no Primary Beneficiary survives me, my vested Account balance
distributable under the terms of the Plan shall be paid in equal
shares, unless otherwise specified above, to such of the
Contingent Beneficiaries as survive me; and
(d) If any Primary Beneficiary or Contingent Beneficiary is my spouse
at the time this beneficiary designation is made but ceases to be
such prior to my death, such spouse shall be deemed to have
predeceased me.
-------------------------------------- ---------------------------
Participant's Signature Date
SPOUSAL CONSENT FORM TO BENEFICIARY DESIGNATION
I, _______________, am the spouse of ______________, who is a Participant in the
Plan. I understand that under the provisions of the Plan, I am the primary
beneficiary and I am entitled to receive upon the death of my spouse's vested
Account balance distributable under the terms of the Plan, unless I consent to
the designation of another as primary beneficiary. I hereby waive my rights as
primary beneficiary and consent to the above designation of primary and
contingent beneficiaries.
-------------------------------------- ---------------------------
Signature of Participant's Spouse Date
STATE OF _______________
COUNTY OF ______________
The foregoing instrument was acknowledged before me this _______ day of
_______________, 200__ by ______________ who personally appeared before me.
My commission expires: -------------------------------
Notary Public Signature
