Exhibit 10.5
APACHE CORPORATION
DEFERRED DELIVERY PLAN
(as amended and restated September 15, 2005; effective as of January 1, 2005)
Apache Corporation ("Apache"), a Delaware corporation (hereinafter referred to,
together with its Affiliated Entities, as the "Company" except where the
context otherwise requires), established the Apache Corporation Deferred
Delivery Plan, effective as of February 10, 2000. The Plan provides Participants
with an opportunity to defer income and permits the grant of Stock Bonus Awards
to Participants selected by the Committee, 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
1.01 Definitions
Defined terms used in this Plan shall have the meanings set forth below:
(a) "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, all
Deferred Restricted Units, and all adjustments thereto.
(b) "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.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the Stock Option Plan Committee of Apache's Board of
Directors. The Committee shall be constituted at all times so as to
permit the Plan to be administered by "non-employee directors" (as
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defined in Rule 16b-3 of the Securities Exchange Act of 1934, as
amended).
(e) "Company Match" means the allocations to a Participant's Account made
pursuant to Section 3.02.
(f) "Compensation" shall mean the one-time 1999 discretionary award and
income from (a) any Stock Bonus Award, (b) 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 (but only for stock options that
vested before January 1, 2005 and for which a deferral election was
made before January 1, 2005), and (c) any Other Approved Plan. 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.
(g) "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.
(h) "Deferred Restricted Units" means those units deferred into the Plan
from the Restricted Stock Plan and any related units from dividend
amounts. Each Deferred Restricted Stock Unit is deemed to be
equivalent to one share of Stock.
(i) "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.
(j) "Fair Market Value" means the per share 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.
(k) "Other Approved Plan" means the 2000 Share Appreciation Plan (but only
until December 31, 2004) and any other compensation or benefit plan
which may from time to time be designated by the Committee and/or the
Board of Directors.
(l) "Participant" means any eligible employee selected to participate in
the Plan pursuant to Section 2.01.
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(m) "Plan" means the Apache Corporation Deferred Delivery Plan (including
Annex A), as it has been amended from time to time, or any successor
plan.
(n) "Plan Year" means the period during which the Plan records are kept.
The Plan Year shall be the calendar year.
(o) "Restricted Stock Plan" means the Apache Corporation Executive
Restricted Stock Plan as it may be amended from time to time, or any
successor plan.
(p) "Separate from Service" or "Separation from Service" has the meaning
specified in section 409A(a)(2)(A)(i) of the Code.
(q) "Spouse" means the individual of the opposite sex to whom a
Participant is lawfully married according to the laws of the state of
the Participant's domicile.
(r) "Stock" means the $0.625 par value common stock of Apache.
(s) "Stock Bonus Award" means any grant of Stock Units made pursuant to
Annex A.
(t) "Stock Units" means investment units and any related units from
dividend amounts. Each Stock Unit is deemed to be equivalent to one
share of Stock.
(u) "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.
(v) "Trust Agreement" means the written instrument pursuant to which each
separate Trust is created.
(w) "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.
1.02 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
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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; however, any Participant in the
Restricted Stock Plan shall be a Participant in the Plan without further
action by the Committee.
2.02 Election
Participants shall complete the election procedure specified by the
Committee. The election procedure may include form(s) for the Participant
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, no Deferred Restricted Units deferred into the
Plan from the Restricted Stock Plan, 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. Any benefits vested hereunder at the time the Participant
becomes ineligible to continue participation shall be distributed in
accordance with the provisions of Article V.
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
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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, from the grant of a Stock Bonus Award or from any Other
Approved Plan shall be credited to the Participant's Account on or
about the date of the stock option exercise, the grant date of the
Stock Bonus Award or the date the income would have been otherwise
paid or distributed from such Other Approved Plan, respectively.
(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 or from any Other Approved Plan, 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, (i) 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 on which income is to be
deferred, and (ii) Election Agreements related to the deferral of
income from any Other Approved Plan must be completed and returned
pursuant to the provisions of both this Plan and the Other Approved
Plan. Each Election Agreement shall be irrevocable for the deferral of
the one-time 1999 discretionary award, or the deferral of income (i)
from stock options exercised in the Plan Year indicated, (ii) from the
grant of any Stock Bonus Award, or (iii) from any Other Approved Plan.
(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 (iii) the deferral of income from
any Other Approved Plan, or (iv) 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, (i) Election Agreements related
to the deferral of income from stock option exercises must be
completed and returned not less than six
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months in advance of the Participant's intended exercise date on which
income is to be deferred, and (ii) Election Agreements related to the
deferral of income from any Other Approved Plan must be completed and
returned pursuant to the provisions of such Other Approved Plan. Each
Election Agreement shall be irrevocable.
(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.
(e) Deferrals from Stock Options Cease. A Participant may elect to defer
income from the receipt of any stock option only if the stock option
vested before January 1, 2005, the deferral election was made before
January 1, 2005, and the deferral occurs on or before December 31,
2005.
(f) Compliance with Code Section 409A. The following rules regarding the
timing of an Election Agreement apply in addition to the requirements
specified above in this Section. An Election Agreement must be
completed and returned in the calendar year before the services giving
rise to the Compensation are performed, unless one of the following
two exceptions applies. Within 30 days of becoming eligible to
participate in the Plan, the new Participant may complete and return
an Election Agreement with respect to Compensation paid for services
performed after the election. If the Election Agreement relates to
"performance-based compensation based on services performed over a
period of at least 12 months" (within the meaning of section
409A(a)(4)(B)(iii) of the Code), the Election Agreement must be
completed and returned at least six months before the end of the
service period.
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.
3.03 Deferral of Deferred Restricted Units
Pursuant to the terms of the Restricted Stock Plan, Deferred Restricted
Units (a) may be deferred into the Plan if so elected by the Participant
and (b) shall be credited to the Participant's Account as set forth in
Subsection 4.01(b) hereof.
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ARTICLE IV
INVESTMENT OF DEFERRALS AND ACCOUNTING; VOTING
4.01 Investments
(a) Except as provided in Subsection 4.01(b), 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 the
Stock for the date as of 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) All Deferred Restricted Units deferred into the Plan shall be credited
to the Participant's Account as of the date of vesting under the
Restricted Stock Plan. Amounts equal to any cash dividends declared on
the Stock shall be credited to the Participant's Account for such
dividend in proportion to the number of Deferred Restricted Units in
the Participant's Account as of the record date for such dividend.
Such dividend amounts shall be invested in Deferred Restricted Units
with the number of Deferred Restricted Units determined using the Fair
Market Value of the Stock on the dividend payment date, and such
Deferred Restricted Units shall be fully vested.
(c) 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 or Deferred
Restricted Units prior to the date on which such Stock Units or Deferred
Restricted 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, related to the
deferral of income from stock option exercises and/or related to
Deferred Restricted Units shall be fully vested; however, the portion
of a Participant's Account (i) 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 and/or (ii)
related to the deferral of income from any Other Approved Plan, shall
vest on such terms as may 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 further vesting shall occur 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 below), 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 and/or Deferred Restricted Units)
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.
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(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.
(h) If a change of control (within the meaning of Apache's Income
Continuance Plan or any successor plan) of Apache occurs, all unvested
Stock Units credited to Participants' Accounts shall become
automatically vested, without further action by the Committee or the
Board.
5.02 Distribution During Employment
(a) In-Service Election. On each Election Agreement, the Participant may
elect to have the vested Plan benefits accrued under that Election
Agreement paid to him in one of the following manners.
(i) The benefits will be paid in a lump sum five years after the
deferral occurs, or as near to that date as is administratively
convenient. If the Participant Separates from Service before
receiving this lump sum, the benefits shall be paid as specified
in Section 5.03. If there is a change of control or the
Participant dies before receiving the lump sum, the benefits
shall be paid as specified in Section 5.04 or 5.05.
(ii) The benefits will be paid in five annual installments, with the
first installment paid five years after the deferral occurs (or
as near to that date as is administratively convenient) and
subsequent installments paid on the anniversary of the first
installment or as near to that date as is administratively
convenient. The amount of each installment shall be equal to the
number of remaining vested Stock Units and Deferred Restricted
Units associated the Election Agreement, divided by the number of
remaining installments, rounded down to the nearest whole share,
except that the last installment shall be equal to the number of
remaining vested Stock Units and Deferred Restricted Units. If
the Participant Separates from Service before receiving all
installments, the remaining vested benefits shall be paid as
specified in Section 5.03. If there is a change of control or the
Participant dies before receiving all installments, the remaining
vested benefits shall be paid as specified in Section 5.04 or
5.05.
(iii) The benefits will be paid after the Participant Separates from
Service, as described in Section 5.03.
(b) Form of Distribution. A lump sum shall be paid in whole shares of
Stock, with any fractional shares paid in cash. Each installment shall
be paid in
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whole shares of Stock, and the last installment shall be paid in whole
shares of Stock with any fractional shares paid in cash.
(c) Existing Elections. Any election in place before September 15, 2005
shall be followed only with respect to the date(s) of any in-service
distribution. Any election for payment to occur upon termination of
employment shall be interpreted as an election for payment to occur
after Separation from Service, and section 5.03 shall apply to such
election.
5.03 Distributions After Employment
This Section applies once a Participant Separates from Service.
(a) Installments or Lump Sum. When a Participant Separates from Service,
all of his vested undistributed benefits shall be aggregated into a
single Account which shall be distributed in a lump sum unless the
Participant elects to receive five annual installments. The
Participant's lump-sum-or-installment election shall be made by the
later of December 31, 2005 or 30 days after the employee becomes a
Participant.
(b) Small Accounts. A Participant who elected installments shall
nevertheless be paid a lump sum if, as of the date the Participant
Separates from Service, the value of his entire vested Account is
$100,000 or less.
(c) Time of Payment(s). A lump sum or the first installment shall be made
as soon as administratively convenient after six months after the
Participant's Separation from Service, unless Section 5.04 or 5.05
provides for a different payment date. Subsequent installments shall
be paid on the anniversary of the first installment, or as near to
that date as is administratively convenient, unless Section 5.04 or
5.05 provides for a different payment date. Payments under this
section during 2005 may be delayed until after September 15, 2005.
(d) Form of Distribution. A lump sum shall be paid in whole shares of
Stock, with any fractional shares paid in cash. Each installment shall
be paid in whole shares of Stock, and the last installment shall be
paid in whole shares of Stock with any fractional shares paid in cash.
(e) Reemployment. If a Participant is reemployed by the Company before his
entire vested Account balance is paid, the benefits he accrued during
his first episode of employment shall be paid as scheduled, and shall
be unaffected by his reemployment. Any benefits accrued during his
second episode of employment shall be paid according to the elections
he makes after being reemployed.
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5.04 Distributions After Participant's Death
This section applies once a Participant dies.
(a) Immediate Payment. When a Participant dies, his remaining vested
Account balance shall be paid to his Beneficiary in one lump sum as
soon as administratively convenient after his death, after giving the
Beneficiary an opportunity to disclaim and after the Committee's
designee has been furnished with proof of death and such other
information as it may reasonably require. Such distribution shall be
paid in whole shares of Stock, with any fractional shares paid in
cash.
(b) Designating Beneficiaries. Each Participant shall designate one or
more persons, trusts or other entities as his beneficiary (the
"Beneficiary") by furnishing the Committee with a Beneficiary
designation form. 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 Participant's estate. Unless the
Participant's Beneficiary designation form specifies otherwise, if a
Beneficiary dies after the Participant but before being paid by the
Plan, the Plan shall pay the Beneficiary's estate.
(c) Changing Beneficiaries. 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 the former
Spouse will be treated as having pre-deceased the Participant for
purposes of interpreting a beneficiary designation form completed
prior to the divorce; this sentence shall apply only if the
Committee's designee is informed of the divorce 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 interest in the Plan, provided that
the disclaimer satisfies the requirements of applicable state law and
section 2518(b) of the Code. 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 Participant.
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5.05 Change of Control
This section applies if there is a change of control of Apache that is
described in section 409A(a)(2)(A)(v) of the Code. Each Account shall be
paid to the appropriate Participant (or Beneficiary of a deceased
Participant) in a lump sum paid on the date of the change of control or as
soon thereafter as is administratively practicable.
5.06 Withholding
At the time of vesting and distribution, as applicable, 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
Company 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.
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. The Committee may delegate any of its administrative duties to a
designee.
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. The Committee may
appoint a designee and/or agent (who need not be a member of the Committee
or an employee of the Company) to assist the Committee in administration of
the Plan and to whom it may delegate such powers as the Committee 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.
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6.03 Agent for Process
Apache's 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.
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).
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(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, 350,000 shares of Stock (adjusted to 735,000 shares for (i)
the Company's five-percent stock dividend, record date March 12, 2003, paid
April 2, 2003, and (ii) the Company's two-for-one stock split, record date
December 31, 2003, distributed January 14, 2004) are authorized for
issuance under the Plan in accordance with the provisions of the Plan and
subject to such restrictions or other 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 and Deferred Restricted 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 (a) by any Stock Units
related to the deferral of income (i) from the exercise of stock options
and/or (ii) from any Other Approved Plan or (b) by any Deferred Restricted
Units deferred from the Restricted Stock Plan shall retain their
authorization under the applicable stock option plan, under such Other
Approved Plan, or under the Restricted Stock 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 and/or Deferred Restricted 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.
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9.02 Other Shares of Stock
The shares of Stock represented by any Stock Units or any Deferred
Restricted Units from dividend amounts that are forfeited, and any shares
of Stock that for any other reason are not issued to a Participant or are
forfeited, shall again 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 and Deferred Restricted 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 cash or
Stock), a proportionate part of such securities or other property shall be
set aside for Stock Units and Deferred Restricted 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 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 and/or Deferred Restricted 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
15
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 and Deferred Restricted 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 and Deferred Restricted 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 and Deferred Restricted 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 5.06 hereof.
9.07 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.
9.08 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 and Deferred Restricted Units credited to Participants' Accounts
maintained under the Plan, either (i) make appropriate provision
16
for the adoption and continuation of the Plan by the acquiring or successor
corporation and for the protection of any Stock Units and Deferred Restricted
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 and Deferred
Restricted 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 (a) all such Stock Units become fully
vested and (b) all Stock Units and Deferred Restricted Units are 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
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.
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11.04 Claims Procedure
(a) General. Each claim for benefits shall be processed in accordance with
the procedures that may established by the Committee. The procedures
shall comply with the guidelines specified in this section. The
Committee may delegate its duties under this section.
(b) Representatives. A claimant may appoint a representative to act on his
behalf. The Plan shall only recognize a representative if the Plan has
received a written authorization signed by the claimant and on a form
prescribed by the Committee, with the following exceptions. The Plan
shall recognize a claimant's legal representative, once the Plan is
provided with documentation of such representation. If the claimant is
a minor child, the Plan shall recognize the claimant's parent or
guardian as the claimant's representative. Once an authorized
representative is appointed, the Plan shall direct all information and
notification regarding the claim to the authorized representative and
the claimant shall be copied on all notifications regarding decisions,
unless the claimant provides specific written direction otherwise.
(c) Extension of Deadlines. The claimant may agree to an extension of any
deadline that is mentioned in this section that applies to the Plan.
The Committee or the relevant decision-maker may agree to an extension
of any deadline that is mentioned in this section that applies to the
claimant.
(d) Fees. The Plan may not charge any fees to a claimant for utilizing the
claims process described in this section.
(e) Filing a Claim. A claim is made when the claimant files a claim in
accordance with the procedures specified by the Committee. Any
communication regarding benefits that is not made in accordance with
the Plan's procedures will not be treated as a claim.
(f) Initial Claims Decision. The Plan shall decide a claim within a
reasonable time up to 90 days after receiving the claim. The Plan
shall have a 90-day extension, but only if the Plan is unable to
decide within 90 days for reasons beyond its control, the Plan
notifies the claimant of the special circumstances requiring the need
for the extension by the 90th day after receiving the claim, and the
Plan notifies the claimant of the date by which the Plan expects to
make a decision.
(g) Notification of Initial Decision. The Plan shall provide the claimant
with written notification of the Plan's full or partial denial of a
claim, reduction of a previously approved benefit, or termination of a
benefit. The notification shall include a statement of the reason(s)
for the decision; references to the Plan provision(s) on which the
decision was based; a description of
18
any additional material or information necessary to perfect the claim
and why such information is needed; a description of the procedures
and deadlines for appeal; a description of the right to obtain
information about the appeal procedures; and a statement of the
claimant's right to sue.
(h) Appeal. The claimant may appeal any adverse or partially adverse
decision. To appeal, the claimant must follow the procedures specified
by the Committee. The appeal must be filed within 60 days of the date
the claimant received notice of the initial decision. If the appeal is
not timely and properly filed, the initial decision shall be the final
decision of the Plan. The claimant may submit documents, written
comments, and other information in support of the appeal. The claimant
shall be given reasonable access at no charge to, and copies of, all
documents, records, and other relevant information.
(i) Appellate Decision. The Plan shall decide the appeal of a claim within
a reasonable time of no more than 60 days from the date the Plan
receives the claimant's appeal. The 60-day deadline shall be extended
by an additional 60 days, but only if the Committee determines that
special circumstances require an extension, the Plan notifies the
claimant of the special circumstances requiring the need for the
extension by the 60th day after receiving the appeal, and the Plan
notifies the claimant of the date by which the Plan expects to make a
decision. If an appeal is missing any information from the claimant
that is needed to decide the appeal, the Plan shall notify the
claimant of the missing information and grant the claimant a
reasonable period to provide the missing information. If the missing
information is not timely provided, the Plan shall deny the claim. If
the missing information is timely provided, the 60-day deadline (or
120-day deadline with the extension) for the Plan to make its decision
shall be increased by the length of time between the date the Plan
requested the missing information and the date the Plan received it.
(j) Notification of Decision. The Plan shall provide the claimant with
written notification of the Plan's appellate decision (positive or
adverse). The notification of any adverse or partially adverse
decision shall include a statement of the reason(s) for the decision;
reference to the plan provision(s) on which the decision was based; a
description of the procedures and deadlines for a second appeal, if
any; a description of the right to obtain information about the
second-appeal procedures; a statement of the claimant's right to sue;
and a statement that the claimant is entitled to receive, free of
charge and upon request, reasonable access to and copies of all
documents, records, and other information relevant to the claim.
19
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 Addresses
Any notice, form, or election required or permitted to be given under the
Plan shall be in writing and shall be given by first class mail, by Federal
Express, UPS, or other carrier, by fax or other electronic means, or by
personal delivery to the appropriate party, addressed:
(a) If to the Company, to Apache Corporation at its principal place of
business at 2000 Post Oak Boulevard, Suite 100, Houston, Texas
77056-4400 (Attention: Corporate Secretary) or at such other address
as may have been furnished in writing by the Company to a Participant;
or
(b) If to a Participant, at the address the Participant has furnished to
the Company in writing.
11.08 Statutory References
Any reference to a specific section of the Code or other statute shall be
deemed to refer to the cited section or to the appropriate successor
section.
20
11.09 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.
Dated: September 15, 2005, effective as of January 1, 2005
ATTEST: APACHE CORPORATION
/s/ Cheri L. Peper /s/ Jeffrey M. Bender
- ------------------------------------- ----------------------------------------
Cheri L. Peper Jeffrey M. Bender
Corporate Secretary Vice President, Human Resources
21
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 or by the Company's
Board of Directors or its delegate. 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 Fair Market Value of
the Stock for the date of grant.
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