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EXHIBIT 10.16
Amendment
To
Apache Corporation 401(k) Savings Plan
Apache Corporation ("Apache") maintains the Apache Corporation 401(k)
Savings Plan (the "Plan"). Pursuant to section 10.4 of the Plan, Apache has
retained the right to amend the Plan. Apache hereby exercises that right by
replacing subsection 6.6(b) of the Plan with the following, effective January 1,
1999.
(b) Definition of Eligible Rollover Distribution. For purposes
of this section only, an "eligible rollover distribution" is any
distribution or in-service withdrawal other than (i) distributions
required under Code section 401(a)(9), (ii) distributions of amounts
that have already been subject to federal income tax (such as defaulted
loans or after-tax voluntary contributions), (iii) installment payments
in a series of substantially equal payments made at least annually and
(A) made over a specified period of ten or more years, (B) made for the
life or life expectancy of the distributee, or (C) made for the joint
life or joint life expectancy of the distributee and his or her
designated beneficiary, (iv) a distribution to satisfy the limits of
Code section 415 or 402(g), (v) a distribution to satisfy ADP, ACP, or
multiple use tests, (vi) any other actual or deemed distribution
specified in the regulations issued under Code section 402(c); or (vii)
any hardship withdrawal by an Employee under age 59 1/2 pursuant to
subsection 7.1(c).
IN WITNESS WHEREOF, this Amendment has been executed the date set forth
below.
APACHE CORPORATION
By: /s/ Daniel L. Schaeffer
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Date: October 21, 1999 Title: Vice President, Human Resources
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Amendment
To
Apache Corporation 401(k) Savings Plan
Apache Corporation ("Apache") maintains the Apache Corporation 401(k)
Savings Plan (the "Plan"). Apache filed the Plan with the IRS on September 15,
1998 in order to obtain a favorable determination as to the qualified status of
the Plan. The IRS granted the Plan a favorable determination letter dated August
13, 1999, contingent on certain amendments being made to the Plan. In section
10.4 of the Plan, Apache reserved the right to amend the Plan from time to time.
Apache hereby exercises such right as follows.
1. Effective as of January 1, 1999, section 1.14 shall be replaced in
its entirety by the following.
1.14 "Covered Employee" means any Employee of the Company, with the
following exceptions.
(a) Any individual directly employed by an entity other than
the Company shall not be a Covered Employee, even if such individual is
considered a common-law employee of the Company or is treated as an
employee of the Company pursuant to Code section 414(n).
(b) A non-resident alien shall not be a Covered Employee.
(c) An Employee included in a unit of Employees covered by a
collective bargaining agreement shall not be a Covered Employee unless
the collective bargaining agreement specifically provides for such
Employee's participation in the Plan.
(d) An Employee whose job is classified as "temporary" shall
be a Covered Employee only after he or she has worked for the Company
and Affiliated Entities for six consecutive months.
(e) An Employee shall not be a Covered Employee while he or
she is classified as an "intern," a "consultant," or an "independent
contractor." An Employee may be classified as an "intern" only if he or
she is currently enrolled (or the Company expects him or her to be
enrolled within the next 12 months) in a high school, college, or
university. An Employee may be classified as an intern even if he or
she does not receive academic course credit from his or her school for
this employment with the Company.
(f) An individual who is employed pursuant to a written
agreement with an agency or other third party for a specific job
assignment or project shall not be a Covered Employee.
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2. Effective as of January 1, 1997, the last sentence of section 1.18
shall be replaced by the following sentence.
The term "Employee" shall also include any individual who provides
services to the Company or an Affiliated Entity pursuant to an
agreement between the Company or an Affiliated Entity and a third party
that employs the individual, but only if the individual has performed
such services for the Company or an Affiliated Entity on a
substantially full-time basis for at least one year and only if the
services are performed under the primary direction or control by the
Company or an Affiliated Entity; provided, however, that if the
individuals included as Employees pursuant to the first part of this
sentence constitute 20% or less of the Non-Highly Compensated Employees
of the Company and Affiliated Entities, then any such individuals who
are covered by a qualified plan that is a money purchase pension plan
that provides a nonintegrated employer contribution rate for each
participant of at least 10% of compensation, that provides for full and
immediate vesting, and that provides immediate participation for each
employee of the third party (other than those who perform substantially
all of their services for the third party and other than those whose
compensation from the third party during each of the four preceding
plan years was less than $1000) shall not be considered an Employee.
3. Effective as of January 1, 1997, section 1.23 shall be replaced in
its entirety by the following.
1.23 "Highly Compensated Employee" means, for each Plan Year, an
Employee who (a) had Compensation of $80,000 (as adjusted by the
Secretary of the Treasury) or more during the immediately preceding
Plan Year, or (b) is a Five-Percent Owner during the current Plan Year,
or (c) was a Five-Percent Owner during the immediately preceding Plan
Year. The term "Highly Compensated Employee" shall also include, where
the context so requires, any former Employee who was a Highly
Compensated Employee when he or she separated from service with the
Company and all Affiliated Entities, as well as any former Employee who
was a Highly Compensated Employee at any time after attaining age 55.
4. Effective as of January 1, 1999, the last sentence of subsection
3.5(b) shall be replaced in its entirety by the following.
The Committee may elect to exclude from the ADP test those Non-Highly
Compensated Employees who, at the end of the Plan Year, had not
attained age 21 and/or whose Period of Service was for less than one
year.
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5. Effective as of January 1, 1997, subsection 3.5(e) shall be replaced
in its entirety by the following two subsections.
(e) Order of Correction. The method described in subsection
(c) shall be employed first, during the Plan Year. If that method is
not used during the Plan Year, or if the net effect of such method was
insufficient for the ADP test to be satisfied, the Company has the
discretion to use any one or more of the methods described in
paragraphs (d)(i), (d)(ii), and (d)(iii). If the Company does not
choose to make the corrections described in paragraphs (d)(i), (d)(ii),
and (d)(iii), or if such corrections are insufficient to satisfy the
ADP test, then the correction method described in paragraph (d)(iv)
shall be used.
(f) Calculating the Amounts Returned. If the ADP test is not
satisfied, and Participant Before-Tax Contributions are returned
pursuant to paragraph (d)(iv) above, the Committee shall determine the
amount to be returned pursuant to paragraph (i) below, and shall then
allocate that amount among the Highly Compensated Employees pursuant to
paragraph (ii) below. The amount actually returned to each Highly
Compensated Employee shall be adjusted to reflect as nearly as possible
the actual investment gains or losses thereon for the Plan Year,
determined pursuant to Article IV, but shall not be adjusted to reflect
any subsequent gains or losses.
(i) Calculation of Amount of Excess Contributions.
The amount of Participant Before-Tax Contributions to be
returned to the group of Highly Compensated Employees as a
whole (the "excess contributions") shall be equal to the
hypothetical reduction in the Participant Before-Tax
Contributions that are subject to the ADP test pursuant to
subsection (b) (the "relevant Participant Before-Tax
Contributions") that would be made under the following
procedure. The Highly Compensated Employee(s) with the highest
"actual deferral ratio" has an amount hypothetically returned
until his or her actual deferral ratio is reduced to the
actual deferral ratio of the Highly Compensated Employee with
the next highest actual deferral ratio; this process is
repeated to the extent necessary for the ADP test to be
satisfied. The term "actual deferral ratio" is a fraction, the
denominator of which is equal to the Participant's
Compensation, and the numerator of which is equal to
(A)+(B)+(C)-(D)-(E), where
(A) is equal to the Participant's Participant
Before-Tax Contributions for the Plan Year.
(B) is equal to that portion of the Participant's
QNECs and QMACs that are allocated to the Participant
as of any date
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within the Plan Year, but only to the extent that the
Committee elects to include them in the ADP test.
(C) is equal to zero for a Non-Highly Compensated
Employee, and, for each Highly Compensated Employee
who participates in a cash or deferred arrangement
sponsored by the Company or an Affiliated Entity that
is permitted to be aggregated with this Plan, is
equal to the contributions to the other plan that are
subject to that plan's ADP test.
(D) is equal to any of the amounts in (A) that are
used in the ACP test pursuant to subsection (b).
(E) is equal to any of the amounts in (A) or (B) or
(C) that have been removed from the Participant's
Accounts pursuant to any other corrective mechanisms
described in this Article.
(ii) Allocation of Excess Contributions. The excess
contributions shall be allocated among the Highly Compensated
Employees as follows. The Highly Compensated Employee(s) with
the largest relevant Participant Before-Tax Contributions
shall have an amount returned until his or her remaining
employer contributions are equal to those of the Highly
Compensated Employee with the next largest relevant
Participant Before-Tax Contributions. This process is repeated
until the excess contributions have been completely returned
to the Highly Compensated Employees. For each Highly
Compensated Employee who receives a return of excess
contributions, the Plan shall first return his or her
unmatched Participant Before-Tax Contributions (if any) before
returning any of his or her matched Participant Before-Tax
Contributions. If a matched Participant Before-Tax
Contribution is returned, the corresponding Company Matching
Contribution shall be forfeited (unless returned to the
Participant pursuant to paragraph 3.6(c)(vi)).
6. Effective as of January 1, 1999, the last sentence of subsection
3.6(b) shall be replaced in its entirety by the following.
The Committee may elect to exclude from the ACP test those Non-Highly
Compensated Employees who, at the end of the Plan Year, had not
attained age 21 and/or whose Period of Service was for less than one
year.
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5. Effective as of January 1, 1997, subsection 3.6(d) shall be replaced
in its entirety by the following two subsections.
(d) Order of Correction. The method described in subsection
3.5(c) shall be employed first, during the Plan Year. If that method is
not used during the Plan Year, or if the net effect of such method was
insufficient for the ACP test to be satisfied, the Company has the
discretion to use any one or more of the methods described in
paragraphs (c)(i), (c)(ii), and (c)(iii). If the Company does not
choose to make the corrections described in paragraphs (c)(i), (c)(ii),
and (c)(iii), or if such corrections are insufficient to satisfy the
ACP test, then the correction method described in paragraph (c)(v)
shall be used if the Plan is top-heavy; if the Plan is not top-heavy,
or if the corrections pursuant to (c)(v) are insufficient, the
correction methods described in paragraphs (c)(iv), (c)(vi), and
(c)(vii) shall be used, as described in subsection (e).
(e) Calculating the Corrective Reduction in Participants'
Accounts. If the ACP test is not satisfied, and the correction methods
described in paragraphs (c)(iv), (c)(vi), and (c)(vii) are to be used,
the Committee shall determine the amount of the correction pursuant to
paragraph (i) below, and shall then allocate that amount among the
Highly Compensated Employees pursuant to paragraph (ii) below. The
amount of the correction shall be adjusted to reflect as nearly as
possible the actual investment gains or losses thereon for the Plan
Year, determined pursuant to Article IV, but shall not be adjusted to
reflect any subsequent gains or losses.
(i) Calculation of Amount of Excess Aggregate
Contributions. The term "aggregate contributions" means those
Participant Before-Tax Contributions and Company Matching
Contributions that are taken into account for the ACP test
pursuant to subsection (b). The amount of the excess aggregate
contributions shall be equal to the hypothetical reduction in
the aggregate contributions that would be made under the
following procedure. The Highly Compensated Employee(s) with
the highest "actual contribution ratio" has his or her
aggregate contributions hypothetically reduced until his or
her actual contribution ratio is lowered to the actual
contribution ratio of the Highly Compensated Employee with the
next highest actual contribution ratio; this process is
repeated to the extent necessary for the ACP test to be
satisfied. The term "actual contribution ratio" is a fraction,
the denominator of which is equal to the Participant's
Compensation, and the numerator of which is equal to
(A)+(B)+(C)+(D)-(E), where
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(A) is equal to the Participant's Company Matching
Contributions for the Plan Year.
(B) is equal to the Participant's Participant
Before-Tax Contributions that are used in the ACP
test pursuant to subsection (b).
(C) is equal to that portion of the Participant's
QNECs and QMACs that are allocated to the Participant
as of any date within the Plan Year, but only to the
extent that the Committee elects to include them in
the ACP test.
(D) is equal to zero for a Non-Highly Compensated
Employee, and, for each Highly Compensated Employee
who participates in a cash or deferred arrangement
sponsored by the Company or an Affiliated Entity that
is permitted to be aggregated with this Plan, is
equal to the contributions to the other plan that are
subject to that plan's ACP test.
(E) is equal to any of the amounts in (A) or (B) or
(C) or (D) that have been removed from the
Participant's Accounts pursuant to any other
corrective mechanisms described in this Article.
(ii) Allocation of Excess Aggregate Contributions.
The excess aggregate contributions shall be allocated among
the Highly Compensated Employees as follows. The Highly
Compensated Employee(s) with the largest aggregate
contributions shall have his or her aggregate contributions
reduced until his or her remaining aggregate contributions are
equal to those of the Highly Compensated Employee with the
next largest aggregate contributions. This process is repeated
until the excess aggregate contributions have been eliminated.
The reduction in aggregate contributions for each affected
Highly Compensated Employee shall be made in the following
order: unmatched Participant Before-Tax Contributions; then
matched Participant Before-Tax Contributions, together with
any associated Company Matching Contribution. Any reduction in
Company Matching Contributions shall be forfeited (to the
extent not vested) or paid to the Highly Compensated Employee
(to the extent vested).
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6. Effective as of January 1, 1997, subsection 3.7(b) shall be replaced
in its entirety by the following.
(b) Corrections to Satisfy Multiple Use Test. If the multiple
use test is not satisfied, the Company shall cause the contributions to
the Accounts of the Highly Compensated Employees to be adjusted as
follows. First, the Company may make certain contributions, or may
designate certain contributions as QNECs or QMACs pursuant to
subsections 3.5(d) and 3.6(c). Second, if additional correction is
necessary, and the Plan is top-heavy, the correction method specified
in paragraph 3.6(c)(v) shall be used. Third, if additional correction
is necessary, the Committee shall make the following corrections for
the appropriate Highly Compensated Employees: (i) return unmatched
Participant Before-Tax Contributions; (ii) return matched Participant
Before-Tax Contributions, and, for the associated Company Matching
Contribution, forfeit it (to the extent not vested) or pay it to the
Highly Compensated Employee (to the extent vested).
7. Effective as of January 1, 1997, section 5.8 shall be replaced in
its entirety by the following.
A rehired Participant shall have two Company Contribution
Accounts, an "old" Company Contributions Account for the contributions
from his or her earlier episode of employment, and a "new" Company
Contributions Account for his or her later episode of employment. The
vested percentage applicable to such Accounts shall be determined
pursuant to sections 5.1 and 5.6, unless an amount was distributed from
the old Company Contributions Account before the Participant was
rehired, in which case the vested percentage of the old Company
Contributions Account, after any forfeiture has been restored to it,
shall be determined pursuant to subsection 5.3(c). If a Participant
becomes fully vested in both the old and the new Company Contributions
Accounts, they shall be merged into one Company Contributions Account.
8. Effective as of January 1, 1997, the last section 10.1 shall be
replaced in its entirety by the following.
Apache expects to continue the Plan indefinitely, but the
continuance of the Plan and the payment of contributions are not
assumed as contractual obligations. Apache may terminate the Plan or
discontinue contributions at any time. Upon the termination of the Plan
or the complete discontinuance of contributions, each Participant's
Accounts shall become fully vested. Upon the partial termination of the
Plan, the Accounts of all affected Participants shall become fully
vested. The only Participants who are affected by a partial termination
are those whose employment with the Company or Affiliated Entity is
terminated as a result of the corporate event causing the partial
termination;
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Employees terminated for cause and those who leave voluntarily
are not affected by a partial termination.
EXECUTED this 21st day of October, 1999.
APACHE CORPORATION
By: /s/ Daniel L. Schaeffer
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Title: Vice President, Human Resources
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Amendment
To
Apache Corporation 401(k) Savings Plan
Apache Corporation ("Apache") maintains the Apache Corporation 401(k)
Savings Plan (the "Plan"). Pursuant to section 10.4 of the Plan, Apache has
retained the right to amend the Plan. Apache hereby exercises that right by
replacing subsection 2.1(a) of the Plan with the following, effective January 1,
2000.
(a) Participant Before-Tax Contributions. A Covered Employee
shall be eligible to begin to make Participant Before-Tax Contributions
as of the first day of the first pay period of the month that begins
after the day the Employee becomes a Covered Employee.
IN WITNESS WHEREOF, this Amendment has been executed the date set forth
below.
APACHE CORPORATION
By: Daniel L. Schaeffer
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Date: December 30, 1999 Title: Vice President, Human Resources
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