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Exhibit 10.16
AMENDMENTS
TO THE
APACHE CORPORATION 401(K) RETIREMENT/SAVINGS PLAN
THIS AMENDMENT is made this 31st day of December 1993 by Apache
Corporation, a Delaware corporation, to be effective as set forth below.
RECITALS
1. Apache Corporation maintains the Apache Corporation 401(k)
Retirement/Savings Plan (the "Plan").
2. Section 10.4 of the Plan provides that Apache Corporation may modify
or amend the Plan at any time in any respect. Pursuant to that right and power
the Plan is hereby amended as set forth below, effective as of the dates set
forth below.
AMENDMENT
I. AMENDMENTS RELATING TO ERISA Section 404(C) COMPLIANCE
A. Effective January 1, 1994, the following definition shall be added to
Article I.
"Account Owner" means a Participant who has an Account balance, an
Alternate Payee who has an Account balance, or a beneficiary who has
obtained an interest in the Account(s) of the previous Account Owner
because of the previous Account Owner's death.
B. Effective February 1, 1994, Section 2.3 shall be replaced in its
entirety by the following.
2.3 Enrollment Procedure.
Notwithstanding Sections 2.1 and 2.2, a Covered Employee shall
not be eligible to participate in the Plan until after completing the
enrollment procedures specified by the Committee. Such enrollment
procedures may, for example, require the Covered Employee to complete
and sign an enrollment form or to complete a voice-response telephone
enrollment. The Covered Employee shall provide the initial investment
direction, the address and date of birth of the Employee, and the
name, address, and date of birth of each beneficiary of the Employee,
the initial rate of the Participant Before-Tax Contributions, and any
other information requested by the Committee. An election to make
Participant Before Tax Contributions shall not be effective until
after the Covered Employee has properly completed the enrollment
procedures. The Committee may require that the enrollment procedure
be completed a certain number of
2
days prior to the date that a Covered Employee actually begins to
participate.
C. Effective February 1, 1994, Article IX shall be replaced in its
entirety by the following.
ARTICLE IX
Trust Agreement - Investments.
9.1 Trust Agreement.
Apache has entered into a Trust agreement to provide for the
holding, investment and administration of the funds of the Plan. The
Trust agreement shall be part of the Plan, and the rights and duties
of any individual under the Plan shall be subject to all terms and
provisions of the Trust agreement.
9.2 Expenses of Trust.
(a) Except as provided in Subsection (b) below,
all taxes upon or in respect of the Trust shall be paid by the Trustee
out of the Trust assets, and all expenses of administering the Trust
shall be paid by the Trustee out of the Trust assets, to the extent
such taxes and expenses are not paid by the Company or the Account
Owner. No fiduciary shall receive any compensation for services
rendered to the Plan if the fiduciary is being compensated on a full
time basis by the Company.
(b) All expenses of individually directed
transactions in Trust assets, including without limitation the
Trustee's transaction fee, brokerage commissions, transfer taxes,
interest on insurance policy loans, and any taxes and penalties that
may be imposed as a result of an individual's investment direction
shall be assessed against the Account(s) of the Account Owner
directing such transactions.
9.3 Investments.
(a) Section 404(c) Plan. The Plan is intended to
be a plan described in ERISA section 404(c). To the extent that an
Account Owner exercises control over the investment of his or her
Accounts, no person who is a fiduciary shall be liable for any loss,
or by reason of any breach, that is the direct and necessary result of
the Account Owner's exercise of control.
(b) Directed Investments. Accounts shall be
invested, upon the written or telephone voice-response
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direction of each Account Owner, in any one or more of a series of
investment funds designated by the Committee from time to time. One
or more such funds may, at the sole discretion of the Committee,
consist of shares of Company Stock. If so directed by Account Owners,
up to 100% of the Accounts under the Plan may be invested in Company
Stock. The funds available for investment and the principal features
thereof, including a general description of the investment objectives,
the risk and return characteristics, and the type and diversification
of the investment portfolio of each fund, shall be communicated to the
Account Owners in the Plan from time to time. Any changes in such
funds shall be immediately communicated to all Account Owners.
(c) Absence of Directions. To the extent that an
Account Owner fails to affirmatively direct the investment of his or
her Accounts, the Committee shall direct the Trustee in writing
concerning the investment of such Accounts. The Committee shall act
by majority vote. Any dissenting member of the Committee shall,
having registered his or her dissent in writing, thereafter cooperate
to the extent necessary to implement the decision of the Committee.
(d) Change in Investment Directions. Account
Owners may change their investment directions, with respect to
investment of new contributions and with respect to the investment of
existing amounts allocated to Accounts, every three months unless the
Committee determines that more frequent changes in investment
directions shall be made available with respect to one or more of the
investment funds. Such changes shall be effective, prospectively, as
of the time established by the Committee. The Committee shall
establish procedures for giving investment directions, which shall be
in writing and communicated to Account Owners. For example, the
procedures could permit an Account Owner to change the investment
direction of new contributions as of the first day of every calendar
quarter, provided that the Committee receives at least two weeks prior
written notice; the procedures could also permit an Account Owner to
change the investment direction of existing Account balances once in a
calendar quarter, on any business day, by giving telephone
voice-response instructions to the Trustee.
D. Effective February 1, 1994, Article XIV shall be added to the end of
the Plan.
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ARTICLE XIV
Matters Affecting Company Stock
14.1 Voting, Etc.
The shares of Company Stock in Accounts, whether or not
vested, may be voted by the Account Owner to the same extent as if
duly registered in the Account Owner's name. The Trustee or its
nominee in which the shares are registered shall vote the shares
solely as agent of the Account Owner and in accordance with the
instructions of the Account Owner. If no instructions are received,
the Trustee shall vote the shares of Company Stock for which it has
received no voting instructions in the same proportions as the Account
Owners affirmatively directed their shares of Company Stock to be
voted unless the Trustee determines that a pro rata vote would be
inconsistent with its fiduciary duties under ERISA. If the Trustee
makes such a determination, the Trustee shall vote the Company Stock
as it determines to be consistent with its fiduciary duties under
ERISA. Each Account Owner who has Company Stock allocated to his or
her Accounts shall direct the Trustee concerning the tender (as
provided below) and the exercise of any other rights appurtenant to
the Company Stock. The Trustee shall follow the directions of the
Account Owner with respect to the tender.
14.2 Notices.
Apache shall cause to be mailed or delivered to each Account
Owner copies of all notices and other communications sent to the
Apache shareholders at the same times so mailed or delivered by Apache
to its other shareholders.
14.3 Retention/Sale of Company Stock and Other Securities.
The Trustee is authorized and directed to retain the Company
Stock and any other Apache securities acquired by the Trust except as
follows:
(a) In the normal course of Plan administration,
the Trustee shall sell Company Stock to satisfy Plan administration
and distribution requirements as directed by the Committee or in
accordance with provisions of the Plan specifically authorizing such
sales.
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(b) In the event of a transaction involving the
Company Stock evidenced by the filing of Schedule 14D-1 with the
Securities and Exchange Commission ("SEC") or any other similar
transaction by which any person or entity seeks to acquire beneficial
ownership of 50% or more of the shares of Company Stock outstanding
and authorized to be issued from time to time under Apache's articles
of incorporation ("tender offer"), the Trustee shall sell, convey, or
transfer Company Stock pursuant to written instructions of Account
Owners delivered to the Trustee in accordance with the following
Sections 14.4 through 14.15. For purposes of such provisions, the
term "filing date" means the date relevant documents concerning a
tender offer are filed with the SEC or, if such filing is not
required, the date the Trustee receives actual notice that a tender
offer has commenced.
(c) If Apache makes any distribution of Apache
securities with respect to the shares of Company Stock held in the
Plan, other than additional shares of Company Stock (any such
securities are hereafter referred to as "stock rights"), the Trustee
shall sell, convey, transfer, or exercise such stock rights pursuant
to written instructions of Account Owners delivered to the Trustee in
accordance with the following Sections of this Article.
14.4 Tender Offers.
(a) Allocated Stock. In the event of any tender
offer, each Account Owner shall have the right to instruct the Trustee
to tender any or all shares of Company Stock, whether or not vested,
that are allocated to his or her Accounts under the Plan on or before
the filing date. The Trustee shall follow the instructions of the
Account Owner. The Trustee shall not tender any Company Stock for
which no instructions are received.
(b) Unallocated Stock. The Trustee shall tender
all shares of Company Stock that are not allocated to Accounts in the
same proportion as the Account Owners directed the tender of Company
Stock allocated to their Accounts unless the Trustee determines that a
pro rata tender would be inconsistent with its fiduciary duties under
ERISA. If the Trustee makes such a determination, the Trustee shall
tender or not tender the unallocated Company Stock as it determines to
be consistent with its fiduciary duties under ERISA.
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(c) Suspension of Share Purchases. In the event
of a tender offer, the Trustee shall suspend all purchases of Company
Stock pursuant to the Plan unless the Committee otherwise directs.
Until the termination of such tender offer and pending such Committee
direction, the Trustee shall invest available cash pursuant to the
applicable provisions of the Plan and the Trust Agreement.
(d) Temporary Suspension of Certain Cash
Distributions. Notwithstanding anything in the Plan to the contrary,
no option to receive cash in lieu of Company Stock shall be honored
during the pendency of a tender offer unless the Committee otherwise
directs.
14.5 Stock Rights.
(a) General. If Apache makes a distribution of
stock rights with respect to the Company Stock held in the Plan and if
the stock rights become exercisable or transferable (the date on which
the stock rights become exercisable or transferable shall be referred
to as the "exercise date"), each Account Owner shall determine whether
to exercise the stock rights, sell the stock rights, or hold the stock
rights allocated to his or her Accounts. The provisions of this
Section shall apply to all stock rights received with respect to
Company Stock held in Accounts, whether or not the Company Stock with
respect to which the stock rights were issued are vested.
(b) Independent Fiduciary. The Independent
Fiduciary provided for in Section 14.15 below shall act with respect
to the stock rights. All Account Owner directions concerning the
exercise or disposition of the stock rights shall be given to the
Independent Fiduciary, who shall have the sole responsibility of
assuring that the Account Owners' directions are followed.
(c) Exercise of Stock Rights. If, on or after
the exercise date, an Account Owner wishes to exercise all or a
portion of the stock rights allocated to his or her Accounts, the
Independent Fiduciary shall follow the Account Owner's direction to
the extent that there is cash or other liquid assets available in his
or her Accounts to exercise the stock rights. Notwithstanding any
other provision of the Plan, each Account Owner who has stock rights
allocated to his or her Accounts shall have a period of five business
days following the exercise date in which he or she may give
instructions to the Committee to liquidate any of the assets held in
his or her Accounts (except shares of Company Stock or assets
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such as guaranteed investment contracts or similar investments), but
only if he or she does not have sufficient cash or other liquid assets
in his or her Accounts to exercise the stock rights. The liquidation
of any necessary investments pursuant to an Account Owner's direction
shall be accomplished as soon as reasonably practicable, taking into
account any timing restrictions with respect to the investment funds
involved. The cash obtained shall be used to exercise the stock
rights, as the Account Owner directs. Any cash that is not so used
shall be invested in a cash equivalent until the next date on which
the Account Owner may change his or her investment directions under
the Plan.
(d) Sale of Stock Rights. On and after the
exercise date, the Independent Fiduciary shall sell all or a portion
of the stock rights allocated to Accounts, as the Account Owner shall
direct.
14.6 Other Rights Appurtenant to the Company Stock.
If there are any rights appurtenant to the Company Stock,
other than voting, tender, or stock rights, each Account Owner shall
exercise or take other appropriate action concerning such rights with
respect to the Company Stock, whether or not vested, that is allocated
to their Accounts in the same manner as the other holders of the
Company Stock, by giving written instructions to the Trustee. The
Trustee shall follow all such instructions, but shall take no action
with respect to allocated Company Stock for which no instructions are
received. The Trustee shall exercise or take other appropriate action
concerning any such rights appurtenant to unallocated Company Stock.
14.7 Information to Truste.
Promptly after the filing date, the exercise date, or any
other event that requires action with respect to the Company Stock,
the Committee shall deliver or cause to be delivered to the Trustee or
the Independent Fiduciary, as appropriate, a list of the names and
addresses of Account Owners showing (i) the number of shares of
Company Stock allocated to each Account Owner's Accounts under the
Plan, (ii) each Account Owner's pro rata portion of any unallocated
Company Stock, and (iii) each Account Owner's share of any stock
rights distributed by Apache. The Committee shall date and certify
the accuracy of such information, and such information shall be
updated periodically by the
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Committee to reflect changes in the shares of Company Stock and other
assets allocated to Accounts.
14.8 Information to Account Owners.
The Trustee or the Independent Fiduciary, as appropriate,
shall distribute and/or make available to each affected Account Owner
the following materials:
(a) A copy of the description of the terms and
conditions of any tender offer filed with the SEC on Schedule 14D-1,
or any similar materials if such filing is not required, any material
distributed to shareholders generally with respect to the stock
rights, and any proxy statements and any other material distributed to
shareholders generally with respect to any action to be taken with
respect to the Company Stock.
(b) If requested by Apache, a statement from
Apache's management setting forth its position with respect to a
tender offer that is filed with the SEC on Schedule 14D-9 and/or a
communication from Apache given pursuant to 17 C.F.R. 240.14d-9(e),
as amended.
(c) An instruction form prepared by Apache and
approved by the Trustee or the Independent Fiduciary, to be used by
any Account Owner who wishes to instruct the Trustee to tender Company
Stock in response to the tender offer, to instruct the Independent
Fiduciary to sell or exercise stock rights, or to instruct the Trustee
or Independent Fiduciary with respect to any other action to be taken
with respect to the Company Stock. The instruction form shall state
that (i) if the Account Owner fails to return an instruction form to
the Trustee by the indicated deadline, the Trustee will not tender any
shares of Company Stock the Account Owner is otherwise entitled to
tender, (ii) the Independent Fiduciary will not sell or exercise any
right allocated to the Account except upon the written direction of
the Account Owner, (iii) the Trustee or Independent Fiduciary will not
take any other action that the Account Owner could have directed, and
(iv) Apache acknowledges and agrees to honor the confidentiality of
the Account Owner's directions to the Trustee.
(d) Such additional material or information as
the Trustee or the Independent Fiduciary may consider necessary to
assist the Account Owner in making an informed decision and in
completing or delivering the instruction form (and any amendments
thereto) to the Trustee or the Fiduciary on a timely basis.
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14.9 Expenses.
The Trustee and the Independent Fiduciary shall have the right
to require payment in advance by Apache and the party making the
tender offer of all reasonably anticipated expenses of the Trustee and
the Independent Fiduciary, respectively, in connection with the
distribution of information to and the processing of instructions
received from Account Owners.
14.10 Former Account Owners.
Apache shall furnish former Account Owners who have received
distributions of Company Stock so recently as to not be shareholders
of record with the information furnished pursuant to Section 14.8.
The Trustee and the Independent Fiduciary are hereby authorized to
take action with respect to the Company Stock distributed to such
former Account Owners in accordance with appropriate instructions from
them. If the Trustee does not receive appropriate instructions, it
shall take no action with respect to the distributed Company Stock.
14.11 No Recommendations.
Neither the Committee, the Committee Fiduciary, the Trustee,
nor the Independent Fiduciary shall express any opinion or give any
advice or recommendation to any Account Owner concerning voting the
Company Stock, any tender offer, stock rights, or the exercise of any
other rights appurtenant to the Company Stock, nor shall they have any
authority or responsibility to do so. Neither the Trustee nor the
Independent Fiduciary has any duty to monitor or police the party
making a tender offer or Apache in promoting or resisting a tender
offer; provided, however, that if the Trustee or the Independent
Fiduciary becomes aware of activity that on its face reasonably
appears to the Trustee or Independent Fiduciary to be materially
false, misleading, or coercive, the Trustee or the Independent
Fiduciary, as the case may be, shall promptly demand that the
offending party take appropriate corrective action. If the offending
party fails or refuses to take appropriate corrective action, the
Trustee or the Independent Fiduciary, as the case may be, shall
communicate with affected Account Owners in such manner as it deems
advisable.
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14.12 Trustee to Follow Instructions.
(a) So long as the Trustee and the Independent
Fiduciary, as the case may be, have determined that the Plan is in
compliance with ERISA section 404(c), the Trustee or the Independent
Fiduciary shall tender, deal with stock rights, and act with respect
to any other rights appurtenant to the Company Stock, pursuant to the
terms and conditions of the particular transaction or event, and in
accordance with instructions received from Account Owners. Except for
voting, the Trustee or the Independent Fiduciary shall take no action
with respect to Company Stock, stock rights, or other appurtenant
rights for which no instructions are received, and such Company Stock,
stock rights, or other appurtenant rights shall be treated like all
other Company Stock, stock rights, or other appurtenant rights for
which no instructions are received. The Trustee, or if an Independent
Fiduciary has been appointed, the Independent Fiduciary, shall vote
the allocated Company Stock that an Account Owner does not vote as
specified in Section 14.1.
(b) If the Trustee or Independent Fiduciary
determines that the Plan does not satisfy the requirements of ERISA
section 404(c), the Trustee or Independent Fiduciary shall follow the
instructions of the Account Owner with respect to voting, tender,
stock rights, or other rights appurtenant to the Company Stock unless
the Trustee or Independent Fiduciary determines that to do so would be
inconsistent with its fiduciary duties under ERISA. In such case, the
Trustee or the Independent Fiduciary shall take such action as it
determines to be consistent with its fiduciary duties under ERISA.
14.13 Confidentiality.
(a) The Committee shall designate one of its
members (the "Committee Fiduciary") to receive investment directions
and to transmit such directions to the Trustee or Independent
Fiduciary, as the case may be. The Committee Fiduciary shall also
receive all Account Owner instructions concerning voting, tender,
stock rights, and other rights appurtenant to the Company Stock. The
Committee Fiduciary shall communicate the instructions to the Trustee
or the Fiduciary, as appropriate.
(b) Neither the Committee Fiduciary, the Trustee,
nor the Independent Fiduciary shall reveal or release any instructions
received from Account Owners concerning the Company Stock to Apache,
an Affiliated
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Entity, or the officers, directors, employees, agents, or
representatives of Apache and Affiliated Entities, except to the
extent necessary to comply with Federal or state law not preempted by
ERISA. If disclosure is required by Federal or state law, the
information shall be disclosed to the extent possible in the aggregate
rather than on an individual basis.
(c) The Committee Fiduciary shall be responsible
for reviewing the confidentiality procedures from time to time to
determine their adequacy. The Committee Fiduciary shall ensure that
the confidentiality procedures are followed. The Committee Fiduciary
shall also ensure that the Independent Fiduciary provided for in
Section 14.15 is appointed.
(d) Apache, with the Trustee's cooperation, shall
take such action as is necessary to maintain the confidentiality of
Account records including, without limitation, establishment of
security systems and procedures which restrict access to Account
records and retention of an independent agent to maintain such
records. If an independent recordkeeping agent is retained, such
agent must agree, as a condition of its retention by Apache, not to
disclose the composition of any Accounts to Apache, an Affiliated
Entity or an officer, director, employee, or representative of Apache
or an Affiliated Entity.
(e) Apache acknowledges and agrees to honor the
confidentiality of the Account Owners' instructions to the Committee
Fiduciary, the Trustee, and the Independent Fiduciary. If Apache, by
its own act or omission, breaches the confidentiality of Account Owner
instructions, Apache agrees to indemnify and hold harmless the
Committee Fiduciary, the Trustee, or the Independent Fiduciary, as the
case may be, against and from all liabilities, claims and demands,
damages, costs, and expenses, including reasonable attorneys' fees,
that the Committee Fiduciary, the Trustee, or the Independent
Fiduciary may incur as a result thereof.
14.14 Investment of Proceeds.
If Company Stock or the rights are sold pursuant to the tender
offer or the provisions of the rights, the proceeds of such sale shall
be invested in accordance with the provisions of the Plan and the
Trust Agreement.
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14.15 Independent Fiduciary.
Apache shall appoint a fiduciary (the "Independent Fiduciary")
to act solely with respect to the Company Stock in situations which
the Committee Fiduciary determines involve a potential for undue
influence by Apache in connection with the Company Stock and the
exercise of any rights appurtenant to the Company Stock. If the
Committee Fiduciary so determines, it shall give written notice to the
Independent Fiduciary, which shall have sole responsibility for
assuring that Account Owners receive the information necessary to make
informed decisions concerning the Company Stock, are free from undue
influence or coercion, and that their instructions are followed to the
extent proper under ERISA. The Independent Fiduciary shall act until
it receives written notice to the contrary from the Committee
Fiduciary.
II. AMENDMENT TO CHANGE THE MATCHING FORMULA
A. The first four sentences of Section 3.1(b) shall remain unchanged.
Effective February 1, 1994, the remainder of Section 3.1(b) shall be replaced
by the following.
As of the last day of each pay period, the Committee shall allocate
Company Matching Contributions (including such forfeitures occurring
during the pay period that are treated as Company Matching
Contributions pursuant to Section 5.5) to each Participant who made
Participant Before-Tax Contributions during the pay period as follows.
The Company Matching Contribution allocated to a Participant shall
equal a "matching percentage" multiplied by that portion of the
Participant Before-Tax Contributions for the pay period that do not
exceed 6% of the Participant's Compensation for the pay period. The
matching percentage equals 100% unless one or more of the following
conditions applies, in which case the matching percentage equals 50%.
(i) The Participant is younger than age
59-1/2 on the first day of the pay period and the Participant has, in
the six months preceding the pay period, sold Company Stock from any
of his or her Accounts. Sales prior to January 1, 1994 shall be
ignored.
(ii) The Participant has elected to
invest any portion of the pay period's Company Matching Contribution
in an investment option other than Company Stock. The matching
percentage is 50% only to the extent that this condition applies.
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(iii) The Participant has elected to
invest any portion of the pay period's Participant Before-Tax
Contribution in an investment other than Company Stock. The matching
percentage is 50% only to the extent that this condition applies. The
matching percentage shall be applied first to the Participant
Before-Tax Contributions that are invested in Company Stock. For
example, if Paragraphs (i) and (ii) do not apply, and if a Participant
contributes 10% of Compensation as a Participant Before-Tax
Contribution in the pay period and he or she elects to invest half the
contribution in Company Stock and half in another investment option,
then the Participant's allocation of Company Matching Contributions
for the pay period will equal 100% of 5% of the pay period's
Compensation plus 50% of 1% of the pay period's Compensation, for a
total match of 5-1/2% of Compensation; the remaining Participant
Before-Tax Contribution (of 4% of the Participant's Compensation) will
not be matched.
III. AMENDMENT TO ACCOMMODATE THE CAFETERIA PLAN.
A. Effective January 1, 1994, the first sentence of Section 3.4(b) shall
replaced by the following.
If, as a result of a reasonable error in estimating
Compensation, or as a result of the allocation of forfeitures, or as a
result of other facts and circumstances as provided in the regulations
under Code section 415, the Annual Additions to a Participant's
Account(s) would, but for this Subsection, exceed the foregoing
limits, the Annual Additions shall be reduced, to the extent
necessary, in the following order: unmatched Participant Before-Tax
Contributions, then matched Participant Before-Tax Contributions and
the corresponding Company Matching Contributions, and then Company
Mandatory Contributions.
IV. AMENDMENTS DEALING WITH CHANGES IN THE LAW.
A. Effective January 1, 1993, the references to Code section 402(a)(8)
(in Sections 1.12(d) and 1.36 of the Plan) shall be changed to Code section
402(e)(3).
B. Effective January 1, 1993, the following new section shall be added to
the Plan.
6.6 Direct Rollover Election.
This Section is effective January 1, 1993. 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
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"distributee") may direct the Trustee to pay all or any portion of his
or her "eligible rollover distribution" to an "eligible retirement
plan" in a "direct rollover." 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).
An "eligible rollover distribution" is any distribution or
in-service withdrawal other than (a) distributions required under Code
section 401(a)(9), (b) distributions of amounts that have already been
subject to federal income tax (such as defaulted loans or after-tax
voluntary contributions), (c) installment payments in a series of
substantially equal payments made at least annually and (i) made over
a specified period of ten or more years, (ii) made for the life or
life expectancy of the distributee, or (iii) made for the joint life
or joint life expectancy of the distributee and his or her designated
beneficiary, (d) a distribution to satisfy the limits of Code section
415 or 402(g), (e) a distribution to satisfy the ADP, ACP, or multiple
use tests, or (f) any other actual or deemed distribution specified in
the regulations issued under Code section 402(c).
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. For a surviving Spouse of a deceased
Participant, an "eligible retirement plan" is an individual retirement
account or annuity.
A "direct rollover" is a payment by the Trustee to the
eligible retirement plan specified by the distributee.
C. Effective January 1, 1989, the following paragraph shall be added to
the end of Subsection 3.6(c).
(iv) Those vested Company Matching
Contributions and those Participant Before-Tax Contributions that are
taken into account for this ACP test for any Highly Compensated
Employee may be returned to such Highly Compensated Employee, without
the consent of either the Highly Compensated Employee or his or her
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Spouse, subject to the rules of Subsection (d). Any such return of
Participant Before-Tax Contributions or vested Company Matching
Contributions shall be made within two and one-half months after the
close of the Plan Year if possible, and in no event later than 12
months after the close of the Plan Year.
D. Effective January 1, 1989, the phrase "Section 3.5 or 3.7" in the
fourth sentence of Subsection 3.2(b) shall be replaced by the phrase "Section
3.4, 3.5, or 3.7."
E. Effective January 1, 1989, subsection 3.8(d) shall be deleted.
F. Effective January 1, 1989, the following sentence shall be added to
the end of Paragraph 6.5(a)(iv).
However, distribution from a Participant Before-Tax Contribution
Account shall not occur pursuant to this Paragraph until either the
Participant has separated from service within the meaning of Code
section 401(k)(2)(B)(i)(I) or 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).
V. AMENDMENTS FOR QDROS.
A. Effective January 1, 1993, Sections 6.1 and 6.2 shall be replaced in
their entirety by the following.
6.1 Beneficiaries.
(a) 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 6.3) shall be paid in the event of his or her 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.
(b) A beneficiary designation may be changed by
the Account Owner at any time and without the consent of any
previously designated beneficiary. However, if the Account Owner is a
married Participant, his or her Spouse shall be his or her beneficiary
unless his or her Spouse has consented to the designation of a
different
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beneficiary. To be effective, the Spouse's consent must be in
writing, witnessed by a notary public, and filed with the Committee.
Any such election shall be effective only as to the Spouse who signed
the election. Effective as of July 23, 1992, if a Participant has
designated his or her Spouse as his or her beneficiary, and the
Participant and that Spouse subsequently divorce, then the beneficiary
designation shall be void and of no effect on the day such divorce is
final.
6.2 Consent.
(a) 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 shall be made only with the Participant's consent to the
manner of distribution and the time of distribution. Distributions to
a beneficiary of a deceased Participant shall be made only with the
beneficiary's consent to the manner of distribution and the time of
distribution. Distributions to an Alternate Payee or his or her
beneficiary shall be made as specified in the QDRO. To be effective,
the consent must be in writing, signed by the distributee, and filed
with the Committee within 90 days before the distribution is to
commence. A consent once given shall be irrevocable after
distribution has begun. Nevertheless, if a distributee has elected to
receive his or her distribution in the form of installments, he or she
may elect to accelerate any or all remaining installments.
(b) 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 415(c)(1),
415(e), 402(g), 401(k)(3), 401(m)(2), or 401(m)(9);
(ii) Distributions that are required to
comply with Code section 401(a)(9);
(iii) Immediate cashouts of less than
$3,500, if the aggregate value of the nonforfeitable portion of a
Participant's Accounts is $3,500 or less (calculated in accordance
with the applicable Treasury regulations) on the earliest date the
Participant (or his or her beneficiary if the Participant has not
received
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17
any distributions) may elect to receive a distribution under Section
6.5 after the Participant has terminated employment;
(iv) Distributions pursuant to Code
section 401(a)(14); and
(v) Distributions after the later of the
Participant's Normal Retirement Age or age 62, provided that the
Participant has terminated employment before the distribution is made.
B. Effective January 1, 1993, the phrase "Paragraphs (f)(ii) and
(f)(iii)" in Subsection 13.9(c) shall be replaced with the phrase "Subsection
(f)."
C. Effective January 1, 1993, Subsection 13.9(d) shall be replaced in its
entirety with the following.
(d) In the case of any payment before an Employee
has separated from service, a Domestic Relations Order shall not be
treated as failing to meet the requirements of Subsection (c) solely
because such order requires that payment of benefits be made to an
Alternate Payee (i) on or after the dates specified in Subsection (f),
(ii) as if the Employee had retired on the date on which such payment
is to begin under such order (but taking into account only the Account
balance on such date), and (iii) in any form in which such benefits
may be paid under the Plan to the Employee. For purposes of this
Subsection, the Account balance as of the date specified in the QDRO
shall be the vested portion of the Employee's Account(s) on such date.
D. Effective January 1, 1993, Subsection 13.9(f) shall be replaced in its
entirety with the following.
(f) The Alternate Payee shall have the following
rights under the Plan:
(i) An Alternate Payee shall receive a
lump sum distribution of his or her Plan assets as soon as
administratively practicable after the Committee determines that the
Domestic Relations Order is a QDRO.
(ii) If the Alternate Payee cannot
receive an immediate distribution of his or her entire interest in the
Plan (which could occur if the Alternate Payee is awarded more than
the distributable amount in Section 6.3), then the Alternate Payee
shall receive an immediate lump sum distribution of the distributable
amount. The
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Alternate Payee's remaining interest in the Plan shall be distributed
as soon as administratively practicable, in annual lump sums of the
distributable amount on the first day of the year. Upon the Alternate
Payee's death, his or her interest in the Plan shall be distributed in
a lump sum as soon as practicable.
(iii) Distribution to an Alternate Payee
must occur on or before the Participant's Required Beginning Date.
(iv) The Alternate Payee may bring claims
against the Plan in the same manner as a Participant pursuant to
Section 13.2.
VI. AMENDMENTS DEALING WITH HERC.
A. Effective January 1, 1994, the following paragraph shall be added to
the end of the Preamble to the Plan.
Each Appendix to this Plan is a part of the Plan document. It
is intended that an Appendix will be used to (1) describe which
business entities are actively participating in the Plan, (2) describe
any special participation, eligibility, vesting, or other provisions
that apply to the employees of a business entity, (3) describe any
special provisions that apply to Participants affected by a designated
corporate transaction, and (4) describe any special distribution rules
that apply to directly transferred benefits from other plans.
B. Effective January 1, 1994, the following Appendix A shall be added to
the end of the Plan.
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19
APPENDIX A
PARTICIPATING COMPANIES
The following Affiliated Entities were actively participating in the
Plan as of the following dates:
Participation Participation
Business Began As Of Ended As Of
-------- ------------- -------------
Apache International, September 22, 1987 N/A
Inc.
Hadson Energy Resources January 1, 1994 N/A
Corporation
Hadson Energy Limited January 1, 1994 N/A
-- END OF APPENDIX A --
C. Effective January 1, 1994, the following Appendix B shall be added to
the end of the Plan.
APPENDIX B
HADSON ENERGY RESOURCES CORPORATION
Introduction
Through a merger effective November 12, 1993, Apache now holds
100% of the capital stock of Hadson Energy Resources Corporation
("HERC"). 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. Amounts will be transferred from the HERC Plan to this Plan
as soon as administratively feasible after the Internal Revenue
Service issues a favorable ruling with respect to the termination of
the HERC Plan. The transferred amounts will be accounted for
separately, and different distributional options will apply to them,
as described below. In addition, HERC and HEL have adopted this Plan,
and Apache has approved their adoption, as of January 1, 1994 for
HERC's and HEL's eligible employees. The employees will be given
credit in this Plan, for vesting and eligibility purposes, for their
prior service with HERC and HEL.
This Appendix is intended to encompass all the protected
benefits and optional forms of benefit, as
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20
required by Code section 411(d)(6), with respect to amounts
transferred from the HERC Plan and shall be interpreted consistently
with that intent.
Capitalized terms in this Appendix have the same meanings as
those given to them in the Plan.
Service
This Appendix applies to all individuals who are common-law
employees of HERC or HEL ("Current HERC Employees") as of January 1,
1994. A Period of Service for a Current HERC Employee shall include
any periods of employment with HERC, HEL, and any of HERC's
subsidiaries.
Participation
Notwithstanding Sections 2.1 and 3.1, a Current HERC Employee
who is a Covered Employee shall be eligible to begin to make
Participant Before-Tax Contributions, and shall be eligible to
participate in the Plan with respect to the 6% Company Mandatory
Contribution, on January 1, 1994.
Transfer of Accounts
The Trustee is authorized to accept the direct transfer of all
assets from the trustee of the HERC Plan. The assets may be
transferred in kind or in cash, as determined by the Committee. The
Trustee shall accept a direct transfer of any participant loan from
the HERC Plan; such loan shall continue to be administered according
to the terms of its promissory note. The Committee shall establish
such procedures, rules, and regulations as it deems necessary or
appropriate to accommodate the transfer of assets. The Trustee shall
separately account for all assets directly transferred to this Plan.
The Trustee shall establish the following accounts for each individual
whose account(s) are transferred to this Plan: a Voluntary
Contribution Account (containing participant after-tax contributions
and the investment earnings thereon); a Salary Deferral Account
(containing participant before-tax contributions and the investment
earnings thereon); a QNEC/QMAC Account (containing qualified
non-elective contributions, qualified matching contributions, and the
investment earnings thereon); and a HERC Contributions Account
(containing the employer's matching contributions, the employer's
discretionary contributions, and the
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21
investment earnings thereon) (collectively, the "HERC Accounts").
Distributions
Unless waived in writing by the Participant or other
beneficiary after such person becomes entitled to a distribution from
the Plan by reason of a Participant's death, Disability, retirement,
or other termination of employment with the Company, or a termination
or partial termination of the Plan, then in addition to and
notwithstanding any other provisions of the Plan, the Participant or
other beneficiary shall have the right to receive his or her vested
interest in the balance of his or her HERC Accounts in the following
optional forms and at the following times. The annuity requirements,
below, however, are automatic with respect to the HERC Account
balances unless waived as provided for therein.
To the extent that this Appendix does not provide for an
alternative or contrary requirement or procedure for distribution of a
Participant's HERC Account, the provisions of the Plan shall control.
For example, all of the consent and beneficiary designation provisions
of the Plan govern the distribution of HERC Accounts to the extent not
inconsistent with the annuity requirements below, and all
distributions are subject to the direct rollover rules of Section 6.6.
Whether or not specifically stated hereinafter, the following
provisions apply only to the HERC Account balances.
1. Death or Disability.
Distributions pursuant to the Plan provisions control in the
case of distributions as a result of death or Disability, except to
the extent that the annuity requirements below are applicable, and
except that installment payments are not available.
2. Other than Death or Disability.
Distributions for reasons other than the Participant's death
or Disability shall be made in accordance with the following:
A Participant who has attained age 59-1/2 may withdraw any
vested amount from his or her HERC Accounts at any time, regardless of
whether the Participant has terminated employment with HERC.
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22
A Participant may elect to withdraw any vested amount from his
or her HERC Accounts at any time after separating from service (within
the meaning of Code section 401(k)(2)(B)(i)(I)) with Apache, HERC, and
all Affiliated Entities.
A Participant may elect to withdraw any amount from his or her
Voluntary Contributions Account at any time, regardless of whether the
Participant has terminated employment with HERC.
A Participant younger than 59-1/2 who has not separated from
service with Apache, HERC, and Affiliated Entities, may make a
hardship withdrawal from his or her Salary Deferral Account under the
same terms and conditions described in Section 7.1(b) of the Plan.
Notwithstanding any of the foregoing early distribution
options, a Participant whose vested interest in his or her HERC
Account balances are distributed pursuant to one of the options
contained in this Paragraph 2 shall forfeit his or her nonvested
interest in his or her HERC Account balances only as of the last day
of the Plan Year in which the Participant incurs a one-year Lapse in
Apache Employment.
All distributions made pursuant to this Paragraph 2 shall be
made in a manner that is consistent with, and satisfies the provisions
of, Paragraph 4 below, including, but not limited to, all notice and
consent requirements of Code sections 417 and 411(a)(11) and the
Treasury Regulations thereunder.
3. Qualified Single Life or Joint and Survivor Annuity.
(a) Eligibility and Conditions. Unless the Participant
elects, as provided in 3(c), not to receive benefits in the form of a
qualified joint and survivor annuity, benefits attributable to HERC
Account balances will be paid in a form having the effect of a
qualified joint and survivor annuity (as defined in 3(b)(2)) with
respect to any Participant who (1) is entitled to a distribution, and
(2) satisfies the marriage requirements provided in 3(d)(2). In a
similar fashion, if a Participant does not meet the marriage
requirements, such benefits will be paid in a form having the effect
of a single life annuity unless the Participant elects, similar to the
election pursuant to 3(c) but without the spousal consent requirement,
to waive the life annuity.
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23
(b) Definitions. As used in this Paragraph
(1) Life Annuity. The term "life annuity" means
an annuity that provides retirement payments and requires the survival
of the Participant or the Participant's spouse as one of the
conditions for any payment or possible payment under the annuity.
(2) Qualified Joint and Survivor Annuity. The
term "qualified joint and survivor annuity" means an annuity for the
life of the Participant with a survivor annuity for the life of the
Participant's spouse which is one-half of the amount of the annuity
payable during the joint lives of the Participant and his or her
spouse. A qualified joint and survivor annuity shall be the actuarial
equivalent of a life annuity for the life of the Participant. The
Committee shall direct the Trustee to apply the entire vested amount
in all of the Participant's HERC Accounts (whether vested before or
upon death, including the proceeds of insurance contracts) to the
purchase of an annuity contract that satisfies all of the requirements
of this Paragraph 3 and to distribute the contract to the Participant.
Payments to the spouse of a deceased Participant shall not be
terminated or reduced because of such spouse's remarriage.
(3) Normal Retirement Age. The term "normal
retirement age" means the Participant's 65th birthday.
(4) Annuity Starting Date. The term "annuity
starting date" means (i) the first day of the first period for which
an amount is payable as an annuity, whether by reason of retirement or
by reason of Disability, or (ii) in the case of a benefit not payable
in the form of an annuity, the first day on which all events have
occurred which entitled the Participant to such benefit.
(5) Day. The term "day" means a calendar day.
(c) Election Not to Take Joint and Survivor Annuity.
(1) In General. Each Participant may elect, at
any time during the election period described in 3(c)(3), not to
receive a qualified joint and survivor annuity. The election shall be
in writing and clearly indicate that the Participant is electing to
receive all of his or her benefits under the Plan in a form other than
that of a qualified joint and survivor annuity.
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24
(2) Consent of Spouse. An election under 3(c)(1)
above shall not be effective unless (i) the Participant's spouse
consents in writing to the election, (ii) the election designates a
beneficiary (or a form of benefits) which may not be changed without
spousal consent (or the consent of the spouse expressly permits
designations by the Participant without any requirement of further
consent by the spouse) and (iii) the spouse's consent acknowledges the
effect of the election and the consent is witnessed by a Committee
member or a notary public. The spouse's consent shall be filed with
the Committee at the same time that the Participant's election under
3(c)(1) is filed with the Committee. If a spousal consent is not
filed together with the Participant's election, the election shall
take effect nevertheless if it is established to the satisfaction of
the Committee that the Participant is not married, the Participant's
spouse cannot be located, or that other circumstances prescribed in
the Treasury Regulations exist. Any spousal consent or establishment
that spousal consent cannot be obtained shall be effective only with
respect to such spouse.
(3) Election period. The Participant shall have
an election period which shall be a 90-day period ending on the
annuity starting date. If a Participant makes a request for
additional information as provided in 3(c)(4) below on or before the
last day of the election period, the election period shall be extended
to the extent necessary to include the 90 calendar days immediately
following the day the requested additional information is personally
delivered or mailed to the Participant.
(4) Information to be Provided by Plan
Administrator.
(i) The Plan Administrator shall provide
to the Participants, at the time and in the manner specified
in 3(c)(4)(ii), the following information, as applicable to
the HERC Account balances under the Plan, written in
nontechnical language:
(A) A general explanation of the
terms and conditions of the qualified joint and survivor
annuity; the Participant's right to make, and the effect of,
an election to waive the joint and survivor annuity form of
benefit; the right of the Participant's spouse to consent to
any election to waive the joint and survivor annuity; the
right
- 24 -
25
to revoke an election to waive; and the effect of such a
revocation; and
(B) A general explanation of the
relative financial effect on a Participant's annuity of the
election. Various methods may be used to explain such
relative financial effect, including information as to the
benefits the Participant would receive under the qualified
joint and survivor annuity stated as an arithmetic or
percentage reduction from a single life annuity; a table
showing the difference between a straight life annuity and a
qualified joint and survivor annuity in terms of a reduction
in dollar amounts or a table showing a percentage reduction
from the straight life annuity. The notice and explanation
required by this 3(c)(4)(i) must also inform the Participant
of the availability of the additional information specified in
3(c)(4)(iii) and how such information may be obtained.
(ii) The method or methods used to
provide the information may vary. If mail or personal
delivery is used, then, whether or not the information has
been previously provided, there must be a mailing or personal
delivery of the information by such time as to reasonably
assure that it will be received on a date that is no less than
30 days and no more than 90 days before the annuity starting
date. If a method other than mail or personal delivery is
used to provide Participants with some or all of such
information, it must be a method that is reasonably calculated
to reach the attention of a Participant on or about the date
prescribed in the immediately preceding sentence and to
continue to reach the attention of such Participant during the
election period applicable to the Participant for which the
information is being provided (as, for example, by permanent
posting, repeated publication, etc.).
(iii) The Plan Administrator must furnish
to a particular Participant, upon a timely written request, a
written explanation in nontechnical language of the terms and
conditions of the qualified joint and survivor annuity and the
financial effect upon the particular Participant's annuity of
making any election under this Paragraph. Such financial
effect shall be given in terms of dollars per annuity payment.
The Plan Administrator need not comply with more than one
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26
such request made by a particular Participant. This
explanation must be personally delivered or mailed (first
class mail, postage prepaid) to the Participant within 30 days
from the date of the Participant's written request.
(5) Election is Revocable. Any election made
under this 3(c) may be revoked in writing at any time during the
specified election period, and after such election has been revoked,
another election under this Paragraph may be made at any time during
the specified election period.
(6) Election by Surviving Spouse. The spouse of
a deceased Participant may elect to have the benefits attributable to
HERC Account balances paid in a form other than a survivor annuity.
The Plan Administrator must furnish to the spouse, within a reasonable
amount of time after a written request has been made by the spouse, a
written explanation in nontechnical language of the survivor annuity
and any other form of payment which may be selected. This explanation
must state the financial effect (in terms of dollars) of each form of
payment. The Plan Administrator need not respond to more than one
such request.
(d) Additional Plan Provisions.
(1) Claim for Benefits. As a condition precedent
to the payment of benefits, a Participant must express in writing to
the Plan Administrator the form in which he or she prefers benefits to
be paid and provide all the information reasonably necessary for the
payment of such benefits. However, if a Participant files a claim for
benefits with the Plan Administrator and provides the Plan
Administrator with all the information necessary for the payment of
benefits but does not indicate a preference as to the form for the
payment of benefits, benefits attributable to HERC Account balances
must be paid in the form of a qualified joint and survivor annuity if
the Participant has attained normal retirement age unless such
Participant has made an effective election not to receive benefits in
such form.
(2) Marriage Requirements.
(i) In General. A joint and survivor
annuity will be paid only if
(A) the Participant and his or
her spouse have been married to each other throughout a
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27
period of one year ending on the annuity starting date; and
(B) the Participant shall notify
the Plan Administrator of his or her marital status within 30
days after request is made for such information.
(ii) Special Rule. If a Participant
marries within one year before his or her annuity starting
date and if the Participant and such spouse have been married
for at least a one year period that ends on or before the
Participant's date of death, the Participant and such spouse
shall be treated as having been married throughout the
one-year period ending on the Participant's annuity starting
date.
(3) Effect of Participant's Death on an
Election or Revocation of Election. The effect of an election or a
revocation of an election timely made under 3(c) shall not be altered
by the death of the Participant within any particular time period
after such election or revocation shall be made effective.
(e) Amount of Benefits. The amount of benefits shall be
as provided in 3(b).
(f) Commencement and Duration. The monthly surviving
spouse's benefit shall be payable to the spouse for life, beginning as
of the first day of the calendar month coincident with or next
following the Participant's death.
4. Qualified Preretirement Survivor Annuity.
(a) Eligibility and Conditions. Unless the Participant elects, as
provided in 4(c), to waive death benefits in the form of a qualified
preretirement survivor annuity, death benefits attributable to HERC Account
balances will be paid in a form having the effect of a qualified preretirement
survivor annuity (as defined in Paragraph 4(b)(2)) with respect to any
Participant who (1) dies prior to the annuity starting date, and (2) satisfies
the marriage requirement of 4(d).
(b) Definitions. As used in this Paragraph
(1) Life Annuity. The term "life annuity" means an
annuity that provides retirement payments and requires the survival of the
Participant or the Participant's spouse as one of the conditions for any
payment or possible payment under the annuity.
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(2) Qualified Preretirement Survivor Annuity. The term
"qualified preretirement survivor annuity" means an annuity for the life of the
surviving spouse of the Participant, which is the actuarial equivalent of 100%
of the Participant's HERC Account balance as of his or her date of death. The
Committee shall direct the Trustee to purchase an annuity contract that
satisfies all of the requirements of this Paragraph 4 (provided that the
present value of the annuity contract is not less than 50% of the Participant's
vested amount in all of his or her HERC Accounts at his or her date of death,
whether vested before or upon death, including the proceeds of insurance
contracts) and to distribute the annuity contract to the surviving spouse.
(3) Normal Retirement Age. The term "normal retirement
age" means the Participant's 65th birthday.
(4) Annuity Starting Date. The term "annuity starting
date" means (i) the first day of the first period for which an amount is
payable as an annuity, whether by reason of retirement or by reason of
Disability or (ii) in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which entitled the
Participant to such benefit.
(5) Day. The term "day" means a calendar day.
(c) Election to Waive Qualified Preretirement Survivor Annuity.
(1) In General.
(i) Each Participant may elect, during the
election period described in 4(c)(3), to waive the payment of death
benefits in the form of a qualified preretirement survivor annuity.
(ii) The election shall be in writing and clearly
indicate that the Participant is electing to waive the payment of
death benefits in the form of a qualified preretirement survivor
annuity.
(2) Consent of Spouse. An election under 4(c)(1) shall
not be effective unless (i) the Participant's spouse consents in
writing to the election, (ii) the election designates a beneficiary
(or a form of benefits) which may not be changed without spousal
consent (or the consent of the spouse expressly permits the
designations by the Participant without any requirement of further
consent by the spouse) and (iii) the spouse's consent acknowledges the
effect of the election and the consent is witnessed by a Committee
member or a notary public.
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The spouse's consent shall be filed with the Committee at the same
time that the Participant's election under 4(c)(1) is filed with the
Committee. If a spousal consent is not filed together with the
Participant'selection, the election shall take effect nevertheless if
it is established to the satisfaction of the Committee that the
Participant is not married, the Participant's spouse cannot be
located, or that other circumstances prescribed in the Treasury
Regulations exist. Any spousal consent or establishment that spousal
consent cannot be obtained shall be effective only with respect to
such spouse.
(3) Election period. The Participant shall have an
election period which shall be a period that ends the later of (i) the
period beginning with the first day of the Plan Year in which the
Participant attains age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains age 35, (ii)
a reasonable time after the individual becomes a Participant, (iii) a
reasonable time after the preretirement survivor annuity ceases to be
a fully subsidized benefit, (iv) a reasonable time after the joint and
survivor rules become effective to the Participant or (v) a reasonable
time after the Participant separates from service before attaining age
35.
(4) Information to be Provided by Plan Administrator.
(i) The Plan Administrator shall provide to the
Participants, at the time and in the manner specified in 4(c)(4), the
following information, as applicable to the Plan, written in
nontechnical language:
(A) A general explanation of the
qualified preretirement survivor annuity; the Participant's right to
make, and the effect of, an election to waive the preretirement
survivor annuity form of death benefit; the right of the Participant's
spouse to consent to the election to waive the preretirement survivor
annuity; the right to revoke an election to waive; and the effect of
such a revocation.
(B) A general explanation of the
relative financial effect on a Participant's death benefits of the
election. Various methods may be used to explain such relative
financial effect.
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(ii) The method or methods used to provide the
information may vary. If mail or personal delivery is used, then,
whether or not the information has been previously provided, there
must be a mailing or personal delivery of the information by such time
as to reasonably assure that it will be received within the period
commencing with the first day of the Plan Year in which the
Participant attains age 32 and ending with the last day of the Plan
Year preceding the Plan Year in which the Participant attains age 35.
If a method other than mail or personal delivery is used to provide
Participants with some or all of such information, it must be a method
that is reasonably calculated to reach the attention of a Participant
on or about the date prescribed in the immediately preceding sentence
and to continue to reach the attention of such Participant during the
election period applicable to the Participant for which the
information is being provided (as, for example, by permanent posting,
repeated publication, etc.).
(4) Election is Revocable. Any election made under
this Paragraph 4 may be revoked in writing at any time during the specified
election period, and after such election has been revoked, another election
under this Paragraph may be made at any time during the specified election
period.
(5) Election by Surviving Spouse. The surviving
spouse may elect to have benefits paid in a form other than a preretirement
survivor annuity. The Plan Administrator must furnish to the spouse, within a
reasonable amount of time after a written request has been made by the spouse,
a written explanation in nontechnical language of the preretirement survivor
annuity and any other form of payment that may be selected. The explanation
must state the financial effect (in terms of dollars) of each form of payment.
The Plan Administrator need not respond to more than one such request.
(d) Marriage Requirement. A preretirement survivor annuity will
be paid only if the Participant and his or her spouse have been married to each
other throughout a period of one year ending on the date of the Participant's
death.
(e) Amount of Benefits. The amount shall be as provided in 4(b).
(f) Commencement and Duration. The monthly surviving spouse's
benefit shall be payable to the spouse for life, beginning as of the first day
of the calendar month coincident with or next following the Participant's
death.
-- END OF APPENDIX B --
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IN WITNESS WHEREOF, this Amendment has been executed the date and year
first set forth above.
APACHE CORPORATION
Attest:
/s/ JAMES E. SLOAN By: /s/ WILLIAM J. JOHNSON
Assistant Secretary President
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