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EXHIBIT 10.11
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 as
follows.
1. Effective as of January 1, 2000, the phrase "Code sections 125,
402(e)(3), 402(h), 403(b), 408(p), or 457" in sections 1.13(a) and
1.13(b) shall be replaced by the phrase "Code sections 125, 132(f)(4),
402(e)(3), 402(h), 403(b), 408(p), or 457."
2. Effective as of September 1, 2000, section 1.13(d)(i)(E) shall be
replaced in its entirety by the following.
(E) Salary reductions that are excludable from
an Employee's gross income pursuant to Code
section 125 or 132(f)(4), and
3. Effective as of January 1, 2001, section 1.14(b) shall be replaced in
its entirety by the following.
(b) An Employee shall not be a Covered Employee unless he or
she is either based in the U.S. or on the U.S. payroll.
4. Effective as of January 1, 2001, 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) was in the "top-paid group" during the immediately
preceding Plan Year and 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 "top-paid group" means the top 20% of Employees when
ranked on the basis of Compensation paid during the year. In
determining the number of Employees in the top-paid group, the
Committee may elect to exclude Employees with less than six (or some
smaller number of) months of service at the end of the year, Employees
who normally work less than 17 1/2 (or some fewer number of) hours per
week, Employees who normally work less than six (or some fewer number
of) months during any year, Employees younger than 21 (or some younger
age) on the last day of the year, and Employees who are nonresident
aliens who receive no earned income (within the meaning of Code section
911(d)(2)) from Apache or an Affiliated Entity that constitutes income
from sources within the United States (within the meaning of Code
section 861(a)(3)). Furthermore, an Employee who is a nonresident alien
who receives no earned income (within the meaning of Code section
911(d)(2)) from Apache or an Affiliated Entity that constitutes income
from sources within the United States (within the meaning of Code
section 861(a)(3)) during the year shall not be in the top-paid group
for that year.
5. Effective as of January 1, 2001, the following sentences shall be added
to the end of section 1.33.
See the definition of "Employee" for a description of when a leased
employee (within the meaning of Code section 414(n)) is treated as an
Employee. In addition, for purposes of calculating an Employee's Period
of Service once an individual has become an Employee, the individual
shall be treated as an Employee for any prior period during which the
individual would have been a leased employee (within the meaning of
Code section 414(n)) but for the fact that his or her services were not
on a substantially full-time basis or were for less than a year.
6. Effective as of July 1, 2001, section 5.1(e) shall be replaced in its
entirety by the following.
(e) Change of Control. The Company Contributions Accounts of
all Participants shall be fully vested as of the effective date of a
"change in control." For purposes of this subsection, a "change of
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control" shall mean the event occurring when a person, partnership, or
corporation, together with all persons, partnerships, or corporations
acting in concert with each person, partnership, or corporation, or any
or all of them, acquires more than 20% of Apache's outstanding voting
securities; provided that a change of control shall not occur if such
persons, partnerships, or corporations acquiring more than 20% of
Apache's voting securities is solicited to do so by Apache's board of
directors, upon its own initiative, and such persons, partnerships, or
corporations have not previously proposed to acquire more than 20% of
Apache's voting securities in an unsolicited offer made either to
Apache's board of directors or directly to the stockholders of Apache.
7. Effective as of November 1, 2001, Article VI shall be replaced in its
entirety by the following:
ARTICLE VI
DISTRIBUTION OF BENEFITS
6.1 Beneficiaries.
(a) Designating Beneficiaries. Each Account Owner shall file
with the Committee a designation of the beneficiaries and contingent
beneficiaries to whom the distributable amount (determined pursuant to
section 6.2) shall be paid in the event of the Account Owner's death.
In the absence of an effective beneficiary designation as to any
portion of the distributable amount after a Participant dies, such
amount shall be paid to the Participant's surviving Spouse, or, if
none, to his or her estate. In the absence of an effective beneficiary
designation as to any portion of the distributable amount after any
non-Participant Account Owner dies, such amount shall be paid to the
Account Owner's estate. The Account Owner may change a beneficiary
designation at any time and without the consent of any previously
designated beneficiary.
(b) Special Rule for Married Participants. If the Account
Owner is a married Participant, his or her Spouse shall be the sole
beneficiary unless the 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.
Any spousal consent shall be effective only as to the Spouse who signed
the consent.
(c) Special Rule for Divorces. If an Account Owner has
designated his or her spouse as a primary or contingent beneficiary,
and the Account Owner and spouse later divorce (or their marriage is
annulled), then the former spouse will be treated as having
pre-deceased the Account Owner for purposes of interpreting a
beneficiary designation form completed prior to the divorce or
annulment. This subsection 6.1(c) will apply only if the Committee is
informed of the divorce or annulment before payment to the former
spouse is authorized.
(d) Disclaimers. Any individual or legal entity who is a
beneficiary may disclaim all or any portion of his or her interest in
the Plan, provided that the disclaimer satisfies the requirements of
Code section 2518(b) and applicable state law. The legal guardian of a
minor or legally incompetent person may disclaim for such person. The
personal representative (or the individual or legal entity acting in
the capacity of the personal representative according to applicable
state law) may disclaim on behalf of a beneficiary who has died. The
amount disclaimed shall be distributed as if the disclaimant had
predeceased the individual whose death caused the disclaimant to become
a beneficiary.
6.2 Consent.
(a) General. Except for distributions identified in subsection
(b), distributions may be made only after the appropriate consent has
been obtained under this subsection. Distributions to a Participant or
to a beneficiary (other than a beneficiary of a deceased Alternate
Payee) shall be made only with the Participant's or beneficiary's
consent to the time of distribution. Distributions to an Alternate
Payee or his or her beneficiary shall be made as specified in the QDRO
and in accordance with section 13.9. To be effective,
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the consent must be filed with the Committee according to the
procedures adopted by the Committee, within 90 days before the
distribution is to commence. A consent once given shall be irrevocable
after distribution has been processed.
(b) Exceptions to General Rule. Consent is not required for
the following distributions:
(i) Corrective distributions under Article III that
are returned to the Participant because the contribution is
not deductible by the Company or because the contribution
would exceed the limits of Code sections 401(a)(17),
415(c)(1), 402(g), 401(k)(3), 401(m)(2), 401(m)(9), or any
other limitation of the Code;
(ii) Distributions that are required to comply with
Code section 401(a)(9);
(iii) Immediate cashouts of less than $5,000, as
described in subsection 6.5(d) or paragraphs 6.5(e)(i) or
13.9(f)(ii);
(iv) Distributions pursuant to Code section
401(a)(14);
(v) Distributions of invalid rollovers pursuant to
subsection 3.2(b); and
(vi) Distributions that must occur by a deadline
specified in the Plan.
6.3 Distributable Amount.
The distributable amount of an Account Owner's Account(s) is
the vested portion of the Account(s) (as determined by Article V) as of
the Valuation Date coincident with or next preceding the date
distribution is made, reduced by (a) any amount that is payable to an
Alternate Payee pursuant to section 13.9, (b) any amount withdrawn
pursuant to section 7.1 since such Valuation Date, and (c) the
outstanding balance of any loan under section 7.2. Furthermore, the
Committee shall temporarily suspend or limit distributions (by reducing
the distributable amount), as explained in section 13.9, when the
Committee is informed that a Domestic Relations Order affecting the
Participant's Accounts is or may be in the process of becoming QDRO.
The distributable amount shall also be zero (except to the extent
necessary to comply with Code section 401(a)(9)) while the Committee
has suspended withdrawals because it believes that the Plan may have a
cause of action against the Participant, as explained in subsection
13.9(h).
6.4 Manner of Distribution.
(a) General. The distributable amount shall be paid in a
single payment, except as otherwise provided in the remainder of this
section. Distributions shall be in the form of cash except to the
extent that an Account is invested in a fund containing primarily
Company Stock, the distributee may elect to receive a distribution of
whole shares of Company Stock. Fractional shares of Company Stock shall
be converted to and paid in cash.
(b) Partial Withdrawals and Installments. Withdrawals are
available to Employees as specified in section 7.1 and to those
Employees over 70 1/2 who are Five-Percent Owners, as described in
paragraph 6.5(c)(ii). Annual installments are available to
beneficiaries as described in subsection 6.5(e).
(c) Grandfather Rules. Installments were a distribution option
under the Plan until June 30, 2001. Annuities were a distribution
option for some amounts that were transferred to this Plan before June
30, 2001. Any Account Owner who could receive a distribution before
July 1, 2001 and who elected before July 1, 2001 to receive the
distribution in the form of installments or an annuity shall receive
the benefit so elected. An Account Owner who elected installments may
elect to accelerate any or all remaining installment payments.
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6.5 Time of Distribution.
(a) Earliest Date of Distribution. Unless an earlier
distribution is permitted by subsection (b) or required by subsection
(c), the earliest date that a Participant may elect to receive a
distribution is as follows.
(i) Termination of Employment or Disability. A
Participant may elect to receive a distribution as soon as
practicable after he or she terminates employment or incurs a
Disability. However, distribution from a Participant
Before-Tax Contribution Account shall not occur pursuant to
this paragraph unless (A) the Participant has separated from
service within the meaning of Code section 401(k)(2)(B)(i)(I),
(B) the Participant has incurred a Disability, (C) the
Participant has attained age 59 1/2, or (D) the Participant
has been affected by a corporate transaction described in Code
section 401(k)(10)(A)(ii) or Code section 401(k)(10)(A)(iii).
(ii) During Employment. A Participant may not obtain
a distribution while employed by the Company or an Affiliated
Entity, except as provided in section 7.1 (relating to
in-service withdrawals) and except as provided in paragraph
6.5(c)(ii) (relating to the minimum distributions required on
and after a Five-Percent Owner's Required Beginning Date).
(b) Compliance With Code Section 401(a)(14). Notwithstanding
subsection (a), unless a Participant elects otherwise, his or her
distribution shall commence no later than 60 days after the close of
the latest of: (i) the Plan Year in which the Participant attains
Normal Retirement Age; (ii) the Plan Year in which occurs the tenth
anniversary of the year in which the Participant commenced
participation in the Plan; and (iii) the Plan Year in which the
Participant terminates employment with the Company and Affiliated
Entities. If a Participant does not affirmatively elect a distribution,
he or she shall be deemed to have elected to defer the distribution to
a date later than that specified in the preceding sentence.
(c) Latest Date of Distribution.
(i) Former Employees. A Participant who is not an
Employee shall receive a single payment of his distributable
amount by his Required Beginning Date. If a Five-Percent Owner
terminates employment after his or her Required Beginning
Date, the Plan shall distribute the entire distributable
amount to him or her as soon as administratively practicable
after the termination of employment.
(ii) Current Employees. An Employee who is not a
Five-Percent Owner is not required to receive any
distributions under this subsection. An Employee who is a
Five-Percent Owner shall receive annual distributions of at
least the minimum amount required to be distributed pursuant
to Code section 401(a)(9). A Five-Percent Owner may request
that his or her first minimum required distribution be
distributed in the calendar year preceding his or her Required
Beginning Date; the Committee shall comply with this request
if administrating practicable to do so.
(d) Small Amounts. If the aggregate value of the
nonforfeitable portion of a Participant's Accounts is $5,000 or less on
any date after the Participant terminates employment, the Participant
shall receive a single payment of the distributable amount as soon as
practicable, provided that the aggregate value is $5,000 or less when
the distribution is processed. The Committee may elect to check the
value of the Participant's Accounts on an occasional (rather than a
daily) basis, to determine whether to apply the provisions of this
subsection.
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(e) Distribution Upon Participant's Death.
(i) Small Accounts. If the aggregate cash value of
the nonforfeitable portion of a Participant's Accounts is
$5,000 or less at any time after the Participant's death and
before any beneficiary elects to receive a distribution under
this subsection, then the beneficiary or beneficiaries shall
each receive a single payment of their share of each one's
distributable amount as soon as administratively practicable,
provided that the aggregate value is $5,000 or less when the
distribution is processed. The Committee may elect to check
the value of the Participant's Accounts on an occasional
(rather than a daily) basis, to determine whether to apply the
provisions of this paragraph.
(ii) Larger Accounts. If paragraph (i) does not
apply, then each beneficiary may elect to have his or her
distributable amount distributed in a single payment or in
annual installments at any time after the Participant's death,
within the following guidelines. No distribution shall be
processed until the beneficiary's identity as a beneficiary is
established. The entire distributable amount shall be
distributed by the last day of the calendar year containing
the fifth anniversary of the Participant's death. A
beneficiary who has elected installments may elect to
accelerate any or all remaining payments. If the Participant
was a Five-Percent Owner who began to receive the minimum
required distributions under paragraph (c)(ii), the
distribution to each beneficiary must be made at least as
rapidly as required by the method used to calculate the
minimum required distributions that was in effect when the
Five-Percent Owner died.
(f) Alternate Payee. Distributions to an Alternate Payee shall
be made in accordance with the provisions of the QDRO and pursuant to
subsection 13.9.
(g) 242(b) Elections. Notwithstanding the foregoing,
distribution of a Participant's Account(s), including the Account(s) of
a Participant who is a Key Employee in a top-heavy plan, may be made in
accordance with all of the following rules (regardless of when such
distribution commences):
(i) The distribution must be one that would not have
disqualified the Plan under Code section 401(a)(9) prior to
its amendment by the Tax Equity and Fiscal Responsibility Act
of 1982.
(ii) The distribution must be in accordance with a
method of distribution designated by the Participant whose
interest in the Plan is being distributed, or if the
Participant is deceased, by the designated beneficiary of such
Participant.
(iii) The designation must have been in writing,
signed by the Participant or designated beneficiary, and made
before January 1, 1984.
(iv) The Participant must have accrued a benefit
under the Plan as of December 31, 1983.
6.6 Direct Rollover Election.
(a) General Rule. A Participant, an Alternate Payee who is the
Spouse or former Spouse of the Participant, or a surviving Spouse of a
deceased Participant (collectively, the "distributee") may direct the
Trustee to pay all or any portion of his "eligible rollover
distribution" to an "eligible retirement plan" in a "direct rollover."
This direct rollover option is not available to other Account Owners
(i.e., non-Spouse beneficiaries and Alternate Payees who are not the
Spouse or former Spouse of the Participant). Within a reasonable period
of time before an eligible rollover distribution, the Committee shall
inform the distributee of this direct rollover option, the appropriate
withholding rules, other rollover options, the options regarding income
taxation, and any other information required by Code section 402(f).
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(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 designated
beneficiary, (iv) a distribution to satisfy the limits of Code section
415 or 402(g), (v) a distribution to satisfy the 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).
(c) Definition of Eligible Retirement Plan. For purposes of
this section only, (i) for a Participant or an Alternate Payee who is
the Spouse or former Spouse of the Participant, an "eligible retirement
plan" is an individual retirement account or annuity described in Code
section 408(a) or 408(b), an annuity plan described in Code section
403(a), or the qualified trust of a defined contribution plan that
accepts eligible rollover distributions, and (ii) for a surviving
Spouse of a deceased Participant, an "eligible retirement plan" is an
individual retirement account or annuity.
(d) Definition of Direct Rollover. For purposes of this
section only, a "direct rollover" is a payment by the Trustee to the
eligible retirement plan specified by the distributee.
8. Effective as of November 1, 2001, Section 13.9(f) shall be replaced in
its entirety by the following:
(f) The Alternate Payee shall have the following rights under
the Plan:
(i) Single Payment. The only form of payment
available to an Alternate Payee is a single payment of the
distributable amount (measured at the time the payment is
processed). If the Alternate Payee is awarded more than the
distributable amount, the Alternate Payee shall initially
receive a distribution of the distributable amount, with
additional payments made as soon as administratively
convenient after more of the amount awarded to the Alternate
Payee becomes distributable.
(ii) Timing of Distribution. Subject to the limits
imposed by this paragraph, the Alternate Payee may choose (or
the QDRO may specify) the date of the distribution. If the
value of the nonforfeitable portion of an Alternate Payee's
Account is $5,000 or less, the Alternate Payee shall receive a
distribution as soon as practicable, provided that the value
is $5,000 or less when the distribution is processed.
Otherwise, the distribution to the Alternate Payee may occur
at any time after the Committee determines that the Domestic
Relations Order is a QDRO and before the Participant's
Required Beginning Date (unless the order is determined to be
a QDRO after the Participant's Required Beginning Date, in
which case the distribution to the Alternate Payee shall be
made as soon as administratively practicable after the order
is determined to be a QDRO).
(iii) Death of Alternate Payee. The Alternate Payee
may designate one or more beneficiaries, as specified in
section 6.1. When the Alternate Payee dies, the Alternate
Payee's beneficiary shall receive a complete distribution of
the distributable amount in a single payment as soon as
administratively convenient.
(iv) Investing. An Alternate Payee may direct the
investment of his Account pursuant to section 9.3.
(v) Claims. The Alternate Payee may bring claims
against the Plan pursuant to section 13.2.
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9. Effective as of April 1, 2000, the last sentence of section 7.2(e)
shall be replaced in its entirety by the following:
Partial pre-payments are accepted.
10. Effective as of November 1, 2001, Appendix B shall be replaced in its
entirety by the following:
APPENDIX B
HADSON ENERGY RESOURCES CORPORATION
Introduction
Apache acquired Hadson Energy Resources Corporation ("HERC")
as of November 12, 1993. HERC and its wholly owned subsidiary, Hadson
Energy Limited ("HEL"), maintained the Hadson Energy Resources
Corporation Employee 401(k) Plan (the "HERC Plan"), a profit sharing
plan containing a cash or deferred arrangement. The HERC Plan was
terminated as of December 31, 1993, and amounts were transferred from
the HERC Plan to this Plan.
The transferred amounts that are subject to the distribution
restrictions of Code section 401(k) shall be placed in the Participant
Before-Tax Contributions Accounts. Any remaining transferred amounts
that represent after-tax contributions, rollovers, or the associated
investment earnings shall be placed in the Rollover Account. All
remaining transferred amounts shall be placed in the Company
Contributions Account.
-- END OF APPENDIX B --
11. Effective as of August 1, 2000, Appendices C, E, G, I, J and K shall be
deleted, the following Appendix C shall be added to the Plan, and
current Appendices F and H shall be re-numbered as Appendices E and F:
APPENDIX C
Over the years, Apache and its Affiliated Entities have
engaged in numerous corporate transactions, both acquisitions and
sales. This Appendix contains any special service-crediting provisions
that apply to employees affected by the corporate transaction (both
those who become Employees and those whose employment is terminated).
SALES
The following Participants are fully vested in their Accounts
in this Plan, on the following dates:
o Employees terminated in connection with the summer 1995 sale
of certain properties to Citation 1994 Investment Limited
Partnership are fully vested in their Plan Accounts as of
September 1, 1995.
ACQUISITIONS
A Period of Service for vesting purposes for a New Employee
(listed below) shall be determined by treating all periods of
employment with the Former Employer Controlled Group as periods of
employment with Apache. The "Former Employer Controlled Group" means
the Former Employer (listed below), its predecessor company/ies, and
any business while such business was treated as a single employer with
the Former Employer or predecessor company pursuant to Code section
414(b), 414(c), 414(m), or 414(o).
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The following individuals are "New Employees" and the
following companies are "Former Employers":
<Table>
<Caption>
Former Employer New Employees
--------------- -------------
Hadson Energy Resources Corporation ("HERC") and All individuals employed by HERC or HEL on
Hadson Energy Limited ("HEL") November 12, 1993.
Crystal Oil Company ("Crystal") All individuals hired from Crystal or related
companies within a week of the closing date on
an asset purchase that was originally
scheduled to close on December 31, 1994.
Texaco Exploration & Production, Inc. All individuals hired from TEPI or Inc.
("TEPI") related companies in late February
and early March 1995 in connection with an
acquisition of assets from TEPI.
The Phoenix Resource Companies, Inc. ("Phoenix") All individuals hired by Apache in 1996 who
were Phoenix employees on May 20, 1996.
Crescendo Resources, L.P. ("Crescendo") All individuals hired from April 30, 2000
through June 1, 2000 from Crescendo and
related companies in connection with an April
30, 2000 asset acquisition from Crescendo.
Collins & Ware ("C&W") and Longhorn Disposal, All individuals hired from C&W and Longhorn
Inc. ("Longhorn") and related companies in connection with a May
23, 2000 asset acquisition from C&W and
Longhorn.
Occidental Petroleum Corporation ("Oxy") All individuals hired from Oxy and related
companies in connection with an August 2000
asset acquisition from an Oxy subsidiary.
</Table>
-- END OF APPENDIX C -
IN WITNESS WHEREOF, this Amendment has been executed the
date set forth below.
APACHE CORPORATION
By: /s/ Jeffrey M. Bender
------------------------------------
Date: August 3, 2001 Title: Vice President - Human Resources
-------------- ---------------------------------
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