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EXHIBIT 10.15
NON-QUALIFIED RETIREMENT/SAVINGS PLAN
OF
APACHE CORPORATION
EFFECTIVE NOVEMBER 16, 1989
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TABLE OF CONTENTS
ARTICLE PAGE
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I. Definitions
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1.01 Account 2
1.02 Committee 2
1.03 Company 2
1.04 Company Deferrals 2
1.05 Compensation 2
1.06 Deferred Contributions 3
1.07 Enrollment Agreement 3
1.08 Participant 3
1.09 Plan Year 3
1.10 Trust 3
1.11 Trust Agreement 3
1.12 Trustee 3
1.13 Valuation Date 4
II. Eligibility and Participation
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2.01 Eligibility and Participation 5
2.02 Enrollment 5
2.03 Failure of Eligibility 5
III. Contribution-Deferrals
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3.01 Participant Deferrals 6
3.02 Company Deferrals 7
3.03 Increase in Contributions During Initial Plan Year 7
IV. Investment of Deferrals and Accounting
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4.01 Investments 8
V. Distributions
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5.01 Time of Distribution 9
5.02 Method and Amount of Distribution 10
5.03 Beneficiaries 10
5.04 Hardship Distributions 11
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TABLE OF CONTENTS (CONTINUED)
ARTICLE PAGE
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VI. Administration
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6.01 The Committee -- Plan Administrator 13
6.02 Committee to Administer and Interpret Plan 13
6.03 Organization of Committee 13
6.04 Indemnification 13
6.05 Agent for Process 13
6.06 Determination of Committee Final 14
VII. Trust
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7.01 Trust Agreement 15
7.02 Expenses of Trust 15
VIII. Amendment and Termination
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8.01 Termination of Plan 16
8.02 Amendment by Company 16
IX. Miscellaneous
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9.01 Funding of Benefits - No Fiduciary Relationship 17
9.02 Right to Terminate Employment 17
9.03 Inalienability of Benefits 17
9.04 Claims Procedure 17
9.05 Disposition of Unclaimed Distributions 18
9.06 Distributions Due Infants or Incompetents 19
9.07 Use and Form of Words 19
9.08 Headings 19
9.09 Governing Law 19
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NON-QUALIFIED RETIREMENT/SAVINGS PLAN
OF
APACHE CORPORATION
Apache Corporation (the "Company") hereby establishes a Non-Qualified
Retirement/Savings Plan (the "Plan") effective as of November 16,
1989. The Company previously established the Apache Corporation
401(k) Retirement/Savings Plan (the "Retirement/Savings Plan"). The
Company intends that this Plan shall provide a select group of
management or highly compensated employees of the Company with
deferred retirement benefits in addition to the retirement benefits
provided under the Retirement/Savings Plan, in cases where benefits
under the Retirement/Savings Plan may be limited by Section 415 of the
Internal Revenue Code of 1986, as amended (the "Code"), or in cases
where participation in the Retirement/Savings Plan will otherwise be
adversely affected by provisions of the Code, in consideration of the
valuable services provided by such employees to the Company and to
induce such employees to remain in the employ of the Company or its
affiliates. The Company intends that the Plan shall not be treated as
a "funded" plan for purposes of either the Internal Revenue Code of
1986 (the "Code") or the-Employee Retirement Income Security Act of
1974, as amended ("ERISA").
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ARTICLE I
DEFINITIONS
Defined terms used in this Plan shall have the meanings set forth
below or the same meanings as in the Retirement/Savings Plan, as the
case may be:
1.01 Account
"Account" means the account maintained for each Participant to which
shall be credited all Deferred Contributions made by a Participant,
all Company Deferrals on behalf of a Participant, and all adjustments
thereto.
1.02 Committee
"Committee" means the administrative committee provided for in Section
6.01.
1.03 Company
"Company" means (i) Apache Corporation, and (ii) any other corporation
or unincorporated trade or business which, with approval of the Board
of Directors of Apache Corporation, has adopted the Plan and is a
member of the same controlled group of corporations or the same group
of trades or businesses under common control (within the meaning of
Sections 414(b) and 414(c) of the Code) as Apache Corporation, or an
affiliated service group (as defined in Section 414(m) of the Code)
which includes Apache Corporation or any other entity required to be
aggregated with Apache Corporation pursuant to regulations under
Section 414(o) of the Code.
1.04 Company Deferrals
"Company Deferrals" means the amount of matching Company Deferrals
allocated to a Participant's Account pursuant to Section 3.02.
1.05 Compensation
"Compensation" means regular compensation paid from the Company
including overtime pay and bonuses, but excluding commissions,
credits, other contingent compensation, Company Deferrals, Company
contributions under the Retirement/ Savings Plan and contributions to
any other fringe benefit plan. Compensation shall be the amount
determined prior to any salary reduction described in Section 3.01 of
this Plan, Section 3.01 of the Retirement/Savings Plan and under
Section 125 of the Code.
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1.06 Deferred Contributions
"Deferred Contributions" means the amounts of a Participant's
Compensation which he elects to defer and have allocated to his
Account pursuant to Section 3.01.
1.07 Enrollment Agreement
"Enrollment Agreement" means an application for participation in the
Plan, execution of which by an eligible employee is required under
Article II for Plan participation.
1.08 Participant
"Participant" means any eligible employee selected to participate in
this Plan who has completed an Enrollment Agreement and is entitled to
the distribution of benefits hereunder.
1.09 Plan Year
"Plan Year" means the period during which the Plan records are kept.
The initial Plan Year shall be a year commencing November 16, 1989 and
ending December 31, 1989. Subsequent Plan Years shall be the calendar
year.
1.10 Trust
"Trust" means the trust or trusts, if any, created by the Company to
provide funding for the distribution of benefits in accordance with
the provisions of the Plan. The assets of any such Trust shall remain
subject to the claims of the Company's general creditors in the event
of the Company's insolvency.
1.11 Trust Agreement
"Trust Agreement" means the written instrument pursuant to which each
separate Trust is created.
1.12 Trustee
"Trustee" means one or more banks, trust companies or insurance
companies designated by the Company to hold and invest the Trust Fund
and to pay benefits and expenses as authorized by the Committee in
accordance with the terms and provisions of the Trust Agreement.
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1.13 Valuation Date
"Valuation Date" means the last day of the Plan Year or any other date
specified by the Committee for the valuation of the Participants'
Accounts.
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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 those employees who are (i) eligible to participate in the
Retirement/Savings Plan; and (ii) are among a select group of
management or highly compensated employees.
2.02 Enrollment
Employees who have been selected by the Committee to participate in
the Plan shall enroll in the Plan by (i) entering into an Enrollment
Agreement with the Company, which shall contain the Participant's
beneficiary designation under Section 5.03 and such other terms as the
Company deems appropriate and necessary, and (ii) completing such
other forms and furnishing such other information as the Company may
reasonably require.
2.03 Failure of Eligibility
No Deferred Contributions or Company Deferrals shall be added to a
Participant's Account after the Participant ceases to meet the
eligibility criteria as determined by the Committee for participation
herein. 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 accrued hereunder,
however, at the time of such change, shall remain distributable in
accordance with the provisions of the Plan.
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ARTICLE III
CONTRIBUTION DEFERRALS
3.01 Participant Deferrals
(a) A Participant may elect to defer a portion of his Compensation
by filing an Enrollment Form with the Committee. The
Enrollment Form must be filed on or before the first day of
the Plan Year in which the deferral is to be made, unless the
Participant was not eligible to participate in the Plan on
such date, in which case the Enrollment Form must be filed
within 30 days after the date on which such Participant became
eligible to participate.
(b) The amount of a Participant's Deferred Contributions
made pursuant to the Plan shall equal the amount of
Participant Deferrals which would have been credited to the
Participant's Deferral Account pursuant to Section 3.01(a) of
the Retirement/Savings Plan but could not be so credited due
to restrictions imposed by the Code, including without
limitation restrictions under Sections 401(a)(17), 401(k)(3),
402(g) and 415(c). The amount of a Participant's Deferred
Contribution shall be determined by reference to the
Participant's elected Deferral Percentage under the
Retirement/Savings Plan as of the first day of the Plan Year
or, if the Participant was not eligible to participate in this
Plan on such date, on the first day on which the Participant
was eligible to participate in this Plan, without regard to
any change in the Participant's Deferral Percentage under the
Retirement/Savings Plan which subsequently becomes effective
in such Plan Year. An election to participate in this Plan
for any Plan Year shall be irrevocable; provided, however,
that a Participant's Deferred Contributions shall be suspended
for a period of twelve (12) months following the date the
Participant receives a hardship withdrawal pursuant to Section
5.01 of the Retirement/Savings Plan or Section 5.04 of the
Plan. Notwithstanding anything herein to the contrary, a
Participant shall not be permitted to defer Compensation which
is earned or payable prior to the execution and delivery of
the Participant's Enrollment Agreement.
(c) Deferred Contributions shall be deducted through payroll
withholding from the Participant's regular compensation
payable by the Company and shall be credited to the
Participant's Account on or about the date or dates such
amount would have been credited to his account in the
Retirement/Savings Plan, if such amounts had in fact been
credited to his account in the Retirement/Savings Plan.
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3.02 Company Deferrals
The Company shall cause to be credited to a Participant's Account for
each Plan Year an amount equal to the difference between (i) the
Company contributions (including both automatic and matching
contributions) that would have been made on the Participant's behalf
under Section 3.03 of the Retirement/Savings Plan for such Plan Year
if the Participant's contributions under the Retirement/Savings Plan
for such Plan Year had included the Deferred Contributions to this
Plan, without taking into account restrictions imposed by the Code,
including without limitation restrictions under Sections 401(a)(17),
401(k)(3), 401(m), 402(g) and 415(c); and (ii) Company contributions
actually made on the Participant's behalf under Section 3.03 of the
Retirement/Savings Plan. All such amounts shall be credited to the
Participant's Account on or about the date or dates such amounts would
have been credited to his account in the Retirement/Savings Plan if
such amounts had in fact been credited to his account in the
Retirement/Savings Plan.
3.03 Increase in Contributions During Initial Plan Year
For the initial Plan Year commencing November 16, 1989 and ending
December 31, 1989 only, the amount of a Participant's Deferred
Contributions and Company Deferrals shall include an amount equal to
the income that would have been earned on Deferred Contributions and
Company Deferrals had this Plan been in effect on January 1, 1989 and
had the Deferred Contributions been invested in a money market fund
from the date the Deferred Contributions would have been made.
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ARTICLE IV
INVESTMENT OF DEFERRALS AND ACCOUNTING
4.01 Investments
All amounts credited to a Participant's Account, together with the
earnings thereon, shall be credited with income and loss as if
invested in one or more investment alternatives selected by the
Committee. At such times and under such procedures as the Committee
shall designate, each Participant shall have the right to elect among
investment alternatives made available by the Committee, including
without limitation the right to transfer all or a portion of the funds
in the Participant's Account among such available investment
alternatives. The Committee shall give written notice to the
Participants of the investment alternatives, if any, available to them
for election. The Committee may change, add to or subtract from the
investment alternatives available at any time. Nothing contained in
this Section shall be construed to give any Participant any power or
control to make investment directions 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 Committee to make investment
choices available to Participants, and in lieu thereof the investment
alternative may be selected by the Committee. Cash may be deemed to
remain uninvested for a reasonable period of time following payroll
withdrawal, as determined from time to time by the Committee, without
interest. Nothing contained in this Section shall be construed to
require the Company or the Committee to fund any Participant's
Account, and the investment alternatives discussed herein may be used
solely as a means to establish income and loss without the actual
funding of the Participants' Accounts.
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ARTICLE V
DISTRIBUTIONS
5.01 Time of Distribution
(a) Retirement Benefits: The retirement benefit payable under the
Plan in the case of a Participant whose employment with the
Company is terminated on or after his Normal Retirement Age
shall be equal to one hundred percent (100%) of the value of
his Accounts on the Valuation Date immediately following his
termination of employment.
(b) Disability Benefits: The disability benefit payable under the
Plan in the case of a Participant whose employment with the
Company is terminated because he is Permanently and Totally
Disabled shall be equal to one hundred percent (100%) of the
value of his Accounts on the Valuation Date immediately
following the date on which he is determined to be Permanently
and Totally Disabled.
(c) Death Benefits: The death benefit payable to a beneficiary
under the Plan in the case of a Participant whose employment
with the Company is terminated due to his death shall be equal
to one hundred percent (100%) of the value of his Accounts on
the Valuation Date immediately following the Participant's
death.
(d) Benefits Upon Termination of Employment: The benefit payable
under the Plan in the case of a Participant whose employment
with the Company is terminated for any reason other than
retirement, Permanent and Total Disability or death shall be
equal to:
(i) the value of his Deferred Contributions, as adjusted,
as of the Valuation Date immediately following his
termination of employment; plus
(ii) the value of the vested portion of his Company
Deferrals, as adjusted, as of the Valuation Date
immediately following his termination of employment,
determined as follows:
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Years of Completed Service
at Date of Termination Vested Portion
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Less than 1 0%
1 20
2 40
3 60
4 80
5 and over 100
For purposes of the preceding table, years of completed
service at date of termination shall be determined in the same
manner as in the Retirement/Savings Plan.
(e) Notwithstanding Section 5.01(d), the value of the Company
Deferrals of all Participants shall be fully vested as of the
effective date of a "Change of Control," as defined herein, and
at all times thereafter. For purposes of this Section, a
"Change of Control" shall mean the event occurring when a
person, partnership or corporation together with all persons,
partnerships or corporations acting in concert with such
person, partnership or corporation, or any or all of them,
acquires more than 20% of Apache Corporation's outstanding
voting securities; provided that a Change of Control shall not
occur if, prior to the acquisition of more than 20% of the
voting securities, Apache Corporation's Board of Directors by
majority vote designates the person, partnership or corporation
as an approved acquiror and resolves that a Change of Control
will not have occurred for purposes of this Plan.
5.02 Method and Amount of Distribution
Amounts distributable pursuant to Section 5.01 shall be distributed in
a single sum cash payment. Payment shall be made as soon as
practicable, but in no case later than sixty (60) days following the
end of the Plan Year in which the Participant terminates employment.
5.03 Beneficiaries
Each Participant shall designate one or more persons, trusts or other
entities as his beneficiary (the "Beneficiary") to receive any amounts
distributable hereunder at the time of the Participant's death. Such
designation shall be made by the Participant in his Enrollment
Agreement and may be changed from time to time by the Participant. 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 personal representative of the Participant's
estate.
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5.04 Hardship Distributions
A Participant may request, and the Committee may approve or disapprove
in its sole discretion, a withdrawal of part or all of the vested
portion of the Participant's Account, subject to the following:
(a) The Participant must file a written request for withdrawal
with the Committee at least fifteen (15) days in advance,
along with such information as the Committee may request for
this purpose. The Committee shall review the information
filed as soon as practicable after it is received and shall
promptly inform the Participant of the results of the
Committee's determination.
(b) Such withdrawal may be made only for the purpose of meeting an
unforeseeable emergency, which shall be defined as a severe
financial hardship to the Participant resulting from a sudden
and unexpected illness or accident of the Participant or of a
dependent (as defined in Section 152(a) of the Code) of the
Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control
of the Participant, and only if and to the extent other
resources which could alleviate such need are not reasonably
available to the Participant.
(c) An unforeseeable emergency shall be determined to exist by the
Committee based on all relevant facts and circumstances.
(d) If the Committee determines that a hardship exists, the
Participant must represent to the Committee by written
certification that the need cannot be relieved through
reimbursement or compensation by insurance or otherwise; by
liquidation of the Participant's assets, to the extent that
liquidation of such assets would not itself cause severe
financial hardship; or by cessation of deferrals under the
Plan and any other plans maintained by the Company.
(e) If the Committee is satisfied that the foregoing requirements
are satisfied and determines, in its sole discretion, to
permit a hardship withdrawal, it will determine the amount of
hardship withdrawal necessary to satisfy the need of the
Participant and will distribute such amount to the
Participant.
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(f) The Participant's deferrals shall be suspended for twelve (12)
months following the date the Participant receives a hardship
withdrawal.
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ARTICLE VI
ADMINISTRATION
6.01 The Committee -- Plan Administrator
The Committee members for the Plan shall be the same committee members
as for the Retirement/Savings Plan.
6.02 Committee to Administer and Interpret Plan
The Committee shall administer the Plan and shall have all powers
necessary for that purpose, including, but not by way of limitation,
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 shall maintain all Plan
records except records of any Trust.
6.03 Organization of Committee
The Committee shall adopt such rules as it deems desirable for the
conduct of its affairs and for the administration of the Plan. It may
appoint agents (who need not be members of the Committee) to whom it
may delegate such powers as it deems appropriate, except that any
dispute shall be determined by the Committee. The Committee may make
its determinations with or without meetings. It may authorize one or
more of its members or agents to sign instructions, notices and
determinations on its behalf. The action of a majority of the
Committee shall constitute the action of the Committee.
6.04 Indemnification
The Committee and all of the agents and representatives of the
Committee shall be indemnified and saved harmless by the Company
against any claims, and the expenses of defending against such claims,
resulting from any action or conduct relating to the administration of
the Plan, except claims judicially determined to be attributable to
gross negligence or willful misconduct.
6.05 Agent for Process
The Committee shall appoint an agent of the Plan for service of all
process.
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6.06 Determination of Committee Final
The decisions made by the Committee shall be final and conclusive on
all persons.
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ARTICLE VII
TRUST
7.01 Trust Agreement
The Company may, but shall not be required to, adopt a separate Trust
Agreement for the holding, investment 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.
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ARTICLE VIII
AMENDMENT AND TERMINATION
8.01 Termination of Plan
The Company expects to continue the Plan indefinitely, but the Company
may terminate the Plan at any time.
8.02 Amendment by Company
The Company may amend the Plan at any time and from time to time,
retroactively or otherwise, but no amendment shall reduce any benefit
that has accrued on the effective date of the amendment.
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ARTICLE IX
MISCELLANEOUS
9.01 Funding of Benefits -- No Fiduciary Relationship
All benefits payable under the Plan shall be distributed in cash or in
kind, in the discretion of the Committee. 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.
9.02 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.
9.03 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.
9.04 Claims Procedure
(a) All claims shall be filed in writing by the Participant, his
spouse or the authorized representative of the claimant, by
completing such procedures as the Committee shall require.
Such procedures shall be reasonable and may
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include the completion of forms and the submission of
documents and additional information.
(b) If a claim is denied, notice of denial shall be furnished by
the Committee to the claimant within 90 days after the receipt
of the claim by the Committee, unless special circumstances
require an extension of time for processing the claim, in
which event notification of the extension shall be provided to
the Participant or beneficiary and the extension shall not
exceed 90 days.
(c) The Committee shall provide adequate notice, in writing, to
any claimant whose claim has been denied, setting forth the
specific reasons for such denial, specific reference to
pertinent Plan provisions, a description of any additional
material or information necessary for the claimant to perfect
his claims and an explanation of why such material or
information is necessary, all written in a manner calculated
to be understood by the claimant. Such notice shall include
appropriate information as to the steps to be taken if the
claimant wishes to submit his claim for review. The claimant
or the claimant's authorized representative may request such
review within the reasonable period of time prescribed by the
Committee. In no event shall such a period of time be less
than 60 days. A decision on review shall be made not later
than 60 days after the Committee's receipt of the request for
review. If special circumstances require a further extension
of time for processing, a decision shall be rendered not later
than 120 days following the Committee's receipt of the request
for review. If such an extension of time for review is
required, written notice of the extension shall be furnished
to the claimant prior to the commencement of the extension.
The decision on review shall be furnished to the claimant.
Such decision shall be in writing and shall include specific
reasons for the decision, written in a manner calculated to be
understood by the claimant, as well as specific references to
the pertinent Plan provisions on which the decision is based.
9.05 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.
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9.06 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 or her 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.
9.07 Use and Form of Words
When any words are used herein in the masculine gender, they shall be
construed as though they were also used in the feminine gender in all
cases where they would so apply, and vice versa. Whenever any words
are used herein in the singular form, they shall be construed as
though they were also used in the plural form in all cases where they
would so apply, and vice versa.
9.08 Headings
Headings of Articles and Sections are inserted solely for convenience
and reference, and constitute no part of the Plan.
9.09 Governing Law
The Plan shall be governed by and construed in accordance with the
laws of the State of Colorado, without regard to its conflicts of laws
principles.
APACHE CORPORATION
By: /s/ Raymond Plank
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Raymond Plank
Title: Chairman of the Board
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Date: November 16, 1989
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