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EXHIBIT 10.17
NON-QUALIFIED RETIREMENT/SAVINGS PLAN
OF
APACHE CORPORATION
As restated as of January 1, 1997
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
1.01 Account......................................................................................................1
1.02 Affiliated Entity............................................................................................1
1.03 Committee....................................................................................................2
1.04 Company......................................................................................................2
1.05 Company Deferrals............................................................................................2
1.06 Compensation.................................................................................................2
1.07 Deferred Contributions.......................................................................................3
1.08 Enrollment Agreement.........................................................................................3
1.09 Participant..................................................................................................3
1.10 Plan Year....................................................................................................4
1.11 Trust........................................................................................................4
1.12 Trust Agreement..............................................................................................4
1.13 Trustee......................................................................................................4
1.14 Valuation Date...............................................................................................4
ARTICLE II ELIGIBILITY AND PARTICIPATION..........................................................................4
2.01 Eligibility and Participation................................................................................4
2.02 Enrollment...................................................................................................4
2.03 Failure of Eligibility.......................................................................................5
ARTICLE III CONTRIBUTION DEFERRALS................................................................................5
3.01 Participant Deferrals........................................................................................5
3.02 Company Deferrals............................................................................................6
ARTICLE IV INVESTMENT OF DEFERRALS AND ACCOUNTING.................................................................8
4.01 Investments..................................................................................................8
ARTICLE V DISTRIBUTIONS...........................................................................................8
5.01 Vesting......................................................................................................8
5.02 Distribution After Termination of Employment................................................................10
5.03 Distributions After Participant's Death.....................................................................11
5.04 Hardship Distributions......................................................................................12
5.05 Withholding.................................................................................................13
ARTICLE VI ADMINISTRATION........................................................................................13
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...........................................................................................14
6.06 Determination of Committee Final............................................................................14
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ARTICLE VI TRUST.................................................................................................14
7.01 Trust Agreement.............................................................................................14
7.02 Expenses of Trust...........................................................................................14
ARTICLE VIII AMENDMENT AND TERMINATION...........................................................................14
8.01 Termination of Plan.........................................................................................14
8.02 Amendment...................................................................................................14
ARTICLE IX MISCELLANEOUS.........................................................................................15
9.01 Funding of Benefits -- No Fiduciary Relationship............................................................15
9.02 Right to Terminate Employment...............................................................................15
9.03 Inalienability of Benefits..................................................................................15
9.04 Claims Procedure............................................................................................15
9.05 Disposition of Unclaimed Distributions......................................................................16
9.06 Distributions Due Infants or Incompetents...................................................................16
9.07 Use and Form of Words.......................................................................................17
9.08 Headings....................................................................................................17
9.09 Governing Law...............................................................................................17
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NON-QUALIFIED RETIREMENT/SAVINGS PLAN
OF
APACHE CORPORATION
Apache Corporation ("Apache") established the Non-Qualified
Retirement/Savings Plan of Apache Corporation (the "Plan") effective as of
November 16, 1989. Apache is now restating the Plan in its entirety as of
January 1, 1997.
Apache has also established the Apache Corporation 401(k) Savings Plan
(the "Savings Plan"), a profit sharing plan that satisfies the qualification
requirements of section 401(a) of the Internal Revenue Code of 1986, as amended
(the "Code"), and which contains a cash or deferred arrangement that satisfies
the requirements of Code section 401(k). Apache has also established the Apache
Corporation Money Purchase Retirement Plan (the "Retirement Plan"), a money
purchase pension plan that satisfies the qualification requirements of Code
section 401(a).
Apache intends for this Plan to provide a select group of management or
highly compensated employees of the Company (as that term is defined in Article
I) with deferred retirement benefits, in addition to the retirement benefits
provided under the Retirement Plan and the Savings Plan, 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. The Company intends that the
Plan shall not be treated as a "funded" plan for purposes of either the Code or
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
ARTICLE I
DEFINITIONS
Defined terms used in this Plan shall have the meanings set forth below
or the same meanings as in the Retirement Plan or the 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 Affiliated Entity
"Affiliated Entity" means any legal entity that is treated as a single
employer with Apache pursuant to Code section 414(b), 414(c), 414(m),
or 414(o).
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1.03 Committee
"Committee" means the administrative committee provided for in Section
6.01.
1.04 Company
"Company" means (i) Apache, and (ii) any Affiliated Entity that, with
approval of the Board of Directors of Apache, has adopted the Plan.
1.05 Company Deferrals
"Company Deferrals" means the allocations to a Participant's Account
made pursuant to Section 3.02.
1.06 Compensation
"Compensation" shall generally mean regular compensation paid by the
Company.
(a) Specifically, Compensation shall include:
(i) regular salary or wages,
(ii) overtime pay,
(iii) bonuses,
(iv) salary reductions pursuant to the Savings Plan,
(v) salary reductions that are excludable from an
Employee's gross income pursuant to Code section 125,
and
(vi) amounts contributed as salary deferrals to this Plan.
(b) Compensation shall exclude:
(i) commissions,
(ii) severance pay,
(iii) moving expenses,
(iv) any gross-up of moving expenses to account for
increased income taxes,
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(v) foreign service premiums paid as an inducement to
work outside of the United States,
(vi) Company contributions under the Retirement Plan
(vii) Company contributions under the Savings Plan,
(viii) other contingent compensation,
(ix) contributions to any other fringe benefit plan
(including, but not limited to, overriding royalty
payments or any other exploration-related payments),
(x) any amounts relating to the granting of a stock
option by the Company or an Affiliated Entity, the
exercise of such a stock option, or the sale or
deemed sale of any shares thereby acquired,
(x) bonuses paid as an inducement to enter the employment
of the Company, and
(xi) Any amount paid in cash or Company Stock pursuant to
the Apache Corporation 1996 Share Price Appreciation
Plan.
Compensation shall include only those amounts paid while the employee
is a Participant in the Plan, except for the purpose of determining the
size of the Participant's retirement-6 allocation under Section
3.02(b), in which case Compensation shall include all amounts paid to
the Participant during the entire Plan Year.
1.07 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.
1.08 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 the employee to make Deferred Contributions.
1.09 Participant
"Participant" means any eligible employee selected to participate in
this Plan.
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1.10 Plan Year
"Plan Year" means the period during which the Plan records are kept.
The Plan Year shall be the calendar year.
1.11 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.
1.12 Trust Agreement
"Trust Agreement" means the written instrument pursuant to which each
separate Trust is created.
1.13 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.
1.14 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.
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 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 complete the enrollment procedure specified by the
Committee. The enrollment procedure may include form(s) for the
employee to (a) designate his beneficiary (pursuant to Section
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5.03), (b) provide instructions regarding the investment of his Account
(pursuant to Section 4.01), (c) make Deferred Contributions by entering
into an Enrollment Agreement with the Company (pursuant to Section
3.01), (d) select a payment option for the eventual distribution of his
Account (pursuant to Section 5.02), and (e) provide such other
information as the Committee may reasonably require.
2.03 Failure of Eligibility
The Committee shall have the authority to determine that a Participant
is no longer eligible to participate in the Plan. No Company Deferrals
shall be accrued, nor any Deferred Contributions withheld from an
employee's Compensation after the Participant ceases to be eligible to
participate in the Plan. The determination of the Committee with
respect to the termination of participation in the Plan shall be final
and binding on all parties affected thereby. Any benefits accrued
hereunder, however, at the time the Participant becomes ineligible to
continue participation, shall be distributable in accordance with the
provisions of the Plan.
ARTICLE III
CONTRIBUTION DEFERRALS
3.01 Participant Deferrals
(a) General. A Participant may elect to defer a portion of his
Compensation by filing the appropriate Enrollment Agreement
with the Committee. Deferred Contributions shall be deducted
through payroll withholding from the Participant's cash
Compensation payable by the Company. Deferred Contributions
shall be credited to the Participant's Account on or about the
date the amount is withheld from the Participant's
Compensation.
(b) Initial Enrollment. When an employee first becomes eligible to
participate in the Plan, pursuant to Section 2.01, the
Committee shall provide him with an enrollment form, which,
when properly completed and timely returned to the Committee
shall constitute an Enrollment Agreement. To be effective, the
Enrollment Agreement must be completed and returned to the
Committee before the 31st day after the employee becomes
eligible to participate in the Plan. The employee may elect to
defer up to 50% of each pay period's Compensation (excluding
bonuses) to this Plan (in addition to his salary deferrals to
the Savings Plan). The Enrollment Agreement shall be effective
on the first day of the payroll period after the Committee
receives the completed Enrollment Agreement. The Enrollment
Agreement shall be irrevocable for the remainder of the Plan
Year, except as provided in Subsections 3.01(e) through
3.01(g).
(c) Continuing Enrollment. An eligible employee may enter into a
new Enrollment Agreement for each Plan Year. To be effective,
the Enrollment Agreement must be completed and returned to the
Committee by the deadline established by the
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Committee. The deadline must be before the first day of the
Plan Year. The employee may elect to defer up to 50% of each
pay period's Compensation (excluding bonuses) to this Plan (in
addition to his salary deferrals to the Savings Plan). The
Participant may also elect to defer an additional amount equal
to any corrective distribution made to him during the Plan
Year by the Retirement Plan or the Savings Plan, pursuant to
the terms of Article III of either plan. The Enrollment
Agreement shall be irrevocable for the Plan Year, except as
provided in Subsections 3.01(e) through 3.01(g). If a
Participant fails to timely complete a new Enrollment
Agreement for the following Plan Year, the Participant's old
Enrollment Agreement shall be extended for another Plan Year.
(d) Deferrals from Bonuses. In addition to the Deferred
Contributions that are provided for in Subsections 3.01(b) and
3.01(c) above, a Participant may also elect to defer up to 75%
of any performance bonus by filing an Enrollment Agreement
with the Committee. The Committee must receive the
Participant's signed Agreement by the date specified by the
Committee, which date shall be no later than the day before
the size of the bonus is determined.
(e) Suspension of Deferred Contributions Following a Hardship
Withdrawal. A Participant's Deferred Contributions shall be
suspended as specified in Section 5.04 following a hardship
withdrawal from this Plan and shall also be suspended, for the
number of months required by Section 7.1 of the Savings Plan,
following a hardship withdrawal from that plan. If the
suspension extends beyond the end of the Plan Year, the
Participant may enter into an Enrollment Agreement for the
remainder of the following Plan Year, provided that he
completes the Enrollment Agreement and returns it to the
Committee before his suspension has ended. If he does not
timely complete a new Enrollment Agreement, his prior
Enrollment Agreement shall be reinstated for the remainder of
the new Plan Year.
(f) Participant Becomes Ineligible. A Participant's Enrollment
Agreement shall be canceled immediately when he becomes
ineligible to participate in the Plan.
(g) Committee-Initiated Changes in Enrollment Agreement. The
Committee may adjust any Participant's Enrollment Agreement
for the remainder of any Plan Year by reducing the amount of
the Participant's future Deferred Contributions, provided that
the Committee believes that such reduction will assist either
the Retirement Plan or the Savings Plan in satisfying any
legal requirement.
3.02 Company Deferrals
The Company shall credit to a Participant's Account a matching
contribution for each payroll period and a retirement-6 contribution
for the Plan Year. The matching contributions shall be credited on the
last day of each pay period. The retirement-6 contribution shall be
credited on the last day of the Plan Year. Company Deferrals shall
begin to share in the investment earnings (or losses) at the time
specified in Article IV.
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(a) Matching Contribution.
(i) Through October 31, 1997. This Paragraph applies
through October 31, 1997. The matching contribution
for this Plan shall be calculated each pay period,
after the Savings Plan's matching contribution is
calculated. The "total match" each pay period shall
be equal to the "applicable percentage" multiplied by
the Participant's "total deferrals" for the pay
period; the maximum total match for a pay period is
6% of the pay period's Compensation.
(ii) November 1, 1997 and Thereafter. This Paragraph
applies after October 31, 1997. The matching
contribution for this Plan shall be calculated each
pay period, after the Savings Plan's matching
contribution is calculated. The "total match" each
pay period shall be equal to the Participant's "total
deferrals" for the pay period, up to a maximum total
match for a pay period of 6% of the pay period's
Compensation.
(iii) Definitions.
The "total match" is equal to the matching
contribution to the Participant's Account in this
Plan plus the Company Matching Contribution allocated
to the Participant's accounts in the Savings Plan.
The "applicable percentage" is equal to that pay
period's matching percentage in the Savings Plan, as
determined under subparagraph 3.1(b)(i)(A) of that
plan.
The "total deferrals" for a pay period are equal to
(i) the Participant's Deferred Contributions for the
pay period, including any Deferred Contributions from
a bonus paid during the pay period, plus (ii) the
Participant's salary deferrals to the Savings Plan
for the pay period.
(b) Retirement-6. In order to receive an allocation of the
retirement-6 contribution, an employee must be eligible to
participate in the Plan on the last day of the Plan Year. The
retirement-6 contribution shall be calculated each Plan Year
after the Company Mandatory Contribution is calculated in the
Retirement Plan for the Plan Year. The sum of the
Participant's retirement-6 contribution in this Plan and his
Company Mandatory Contribution in the Retirement Plan shall be
equal to 6% of the Participant's Compensation for the Plan
Year.
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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. Company Deferrals and Deferred Contributions
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.
ARTICLE V
DISTRIBUTIONS
5.01 Vesting
(a) A Participant shall be fully vested in the portion of his Plan
Account that is attributable to his Deferred Contributions.
(b) A Participant shall vest in the portion of his Plan Account
that is attributable to Company Deferrals according to the
following schedule, unless Subsection 5.01(c) provides for
faster vesting:
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Years of Completed Service Vested Portion
-------------------------- --------------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 or more 100%
(c) A Participant shall be fully vested in the portion of his Plan
Account that is attributable to Company Deferrals in the
following circumstances.
(i) The Participant shall be fully vested if he attains
age 65 while employed by the Company or an Affiliated
Entity.
(ii) The Participant shall be fully vested if he is hired
by the Company after attaining age 65.
(iii) The Participant shall be fully vested if he incurs a
Disability while employed by the Company or an
Affiliated Entity.
(iv) The Participant shall be fully vested if he dies
while employed by the Company or an Affiliated
Entity.
(v) All Participants shall be fully vested if a "Change
in Control" occurs. A "Change of Control" occurs when
an individual or legal entity, together with all
individuals and legal entities acting in concert with
such individual or legal entity, or any or all of
them, acquires more than 20% of Apache's outstanding
voting securities; except that a Change of Control
does not occur if, prior to the acquisition of more
than 20% of the voting securities, Apache's Board of
Directors by majority vote designates the individual
or legal entity as an approved acquiror and resolves
that a Change of Control will not have occurred for
purposes of this Plan.
(vi) All Participants in the Plan who were employed by the
Company on July 1, 1992 became 100% vested with
respect to all Company Deferrals made to the Plan
prior to or as of July 1, 1992. If a Participant was
not previously 100% vested, then the amount that
becomes 100% vested pursuant to this paragraph shall
be allocated to a special account and a new account
shall be established for all Company Deferrals made
with respect to such Participant subsequent to July
1, 1992. Once any Participant becomes 100% vested in
both such accounts, the two separate accounts shall
be merged into one account.
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(vii) All Participants who were transferred to Producers
Energy Marketing LLC prior to April 1, 1996 became
fully vested. This special vesting rule applies only
to the Participant's Account at the time of his
transfer. If such a Participant was not previously
fully vested, returns to employment with the Company,
and recommences participation in the Plan, then the
amount that became 100% vested pursuant to this
paragraph shall be allocated to a special account and
a new account shall be established for all Company
Deferrals made with respect to such Participant after
his reemployment. Once a Participant becomes 100%
vested in both such accounts, the two separate
accounts shall be merged into one account.
(d) When a Participant terminates employment, the portion of his
Account that is not then vested shall be forfeited
immediately.
5.02 Distribution After Termination of Employment
While a Participant is employed by the Company or an Affiliated Entity,
the only available distribution is a hardship withdrawal pursuant to
Section 5.04. Distributions after the Participant's death are discussed
in Section 5.03. All other distributions are discussed in this Section.
(a) Timing. The Participant's vested Account shall be distributed
after the Participant terminates employment with the Company
and all Affiliated Entities. If the Participant terminates
employment before July 1, distribution shall commence in the
Plan Year of employment termination, as soon as
administratively convenient after the termination of
employment. If the Participant terminates employment on or
after July 1, distribution shall commence in the Plan Year
after the termination of employment, as soon as
administratively convenient.
(b) Form of Distribution. The Participant's entire vested Account
shall be paid in one payment if (i) the vested Account is less
than $100,000 when the Participant terminated employment, or
(ii) the Participant terminates employment in 1996 or 1997.
Otherwise, the distribution shall be paid in one to ten annual
installments, as elected by the Participant subject to the
following restrictions. The Participant shall make his
distribution election when he initially enrolls in the Plan,
except that Participants prior to January 1, 1997 shall make
their election no later than December 31, 1996. Regardless of
the Participant's election, the minimum annual installment
payment shall be $100,000, or, if less, the Participant's
remaining Account balance. Each installment will be equal to
the greater of (i) the minimum installment, or (ii) the vested
Account balance at the beginning of the Plan Year divided by
the number of remaining annual installments, except for the
final installment, which will be equal to the remaining
Account balance. Installments will be paid as soon as
administratively convenient during the Plan Year.
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For example, if the Participant had chosen 5 annual
installments, and terminates employment in February of 1999,
the unvested account balance shall be forfeited immediately;
his 1999 installment will be one-fifth of his January 1, 1999
vested Account balance; his 2000 installment will be
one-fourth of his January 1, 2000 Account balance; his 2001
installment will be one-third of his January 1, 2001 Account
balance; his 2002 installment will be one-half of his January
1, 2002 Account balance; and his final installment in 2003
will be the remainder of his Account balance.
(c) Reemployment. If a Participant is reemployed by the Company or
an Affiliated Entity before he is paid his entire vested
Account balance, his payments from the Plan shall be
suspended. Payments will resume after he again terminates
employment. The number of remaining payments shall be the
number of annual payments originally chosen, less the number
of payments received before he was reemployed. If the
Participant dies before receiving all installments, Section
5.03 shall apply.
5.03 Distributions After Participant's Death
(a) 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. In the absence of an effective
beneficiary designation as to part or all of a Participant's
interest in the Plan, such amount shall be distributed to the
Participant's surviving spouse, if any, otherwise to the
personal representative of the Participant's estate.
(b) A beneficiary designation may be changed by the Participant at
any time and without the consent of any previously designated
Beneficiary. However, if the Participant is married, his
spouse shall be his Beneficiary unless such spouse has
consented to the designation of a different beneficiary. To be
effective, the spouse's consent must be in writing, witnessed
by a notary public, and filed with the Committee. If a
Participant has designated his spouse as a Beneficiary or as a
contingent beneficiary, and the Participant and that spouse
subsequently divorce, then the beneficiary designation shall
be void and of no effect with respect to such spouse on the
day such divorce is final.
(c) When a Participant dies, his remaining vested Account balance
shall be distributed to his Beneficiary as soon as
administratively possible after his death, regardless of the
payment schedule the Participant elected, and regardless of
whether installment payments had begun.
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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, 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 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.
(f) The Participant's Deferred Contributions shall be suspended
for six months following the date of his hardship withdrawal
from this Plan. If a Participant makes a hardship withdrawal
from this Plan and also makes a hardship withdrawal from the
Savings Plan, the suspension period under this Plan shall run
concurrently with the suspension period under the Savings
Plan, if any, and the suspension period under this Plan shall
be the longer of the suspension period provided under the
Savings Plan or the six-month suspension provided by this
Plan.
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5.05 Withholding
The Plan shall withhold any taxes or other amounts that it is required
to withhold pursuant to any applicable law. The Committee may direct
the Plan to withhold additional amounts from any payment, either
because the Participant so requested or to repay the Participant's debt
or obligation to the Company or Affiliated Entities.
ARTICLE VI
ADMINISTRATION
6.01 The Committee -- Plan Administrator
The Committee members for the Plan shall be the same committee members
as for the Savings Plan.
6.02 Committee to Administer and Interpret Plan
The Committee shall administer the Plan and shall have all discretion
and powers necessary for that purpose, including, but not by way of
limitation, full discretion and power to interpret the Plan, to
determine the eligibility, status and rights of all persons under the
Plan and, in general, to decide any dispute. The Committee shall direct
the Company, the Trustee, or both, as the case may be, concerning
distributions in accordance with the provisions of the Plan. The
Committee 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.
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6.05 Agent for Process
The Committee shall appoint an agent of the Plan for service of all
process.
6.06 Determination of Committee Final
The decisions made by the Committee shall be final and conclusive on
all persons.
ARTICLE VII
TRUST
7.01 Trust Agreement
The Company may, but shall not be required to, adopt a separate Trust
Agreement for the holding, 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.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.01 Termination of Plan
The Company expects to continue the Plan indefinitely, but each Company
may terminate its participation in the Plan at any time, and Apache may
terminate the entire Plan at any time.
8.02 Amendment
Apache may amend the Plan at any time and from time to time,
retroactively or otherwise, on behalf of all Companies, but no
amendment shall reduce any vested benefit that has accrued on the
effective date of the amendment.
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Each amendment shall be in writing. Each amendment shall be approved by
Apache's Board of Directors or by an officer of Apache Corporation who
is authorized by Apache's Board of Directors to amend the Plan. Each
amendment shall be executed by an officer of Apache to whom Apache's
Board of Directors has delegated the authority to execute the
amendment.
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
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shall require. Such procedures shall be reasonable and may
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 as 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.
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
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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 construed in accordance with ERISA, the Code, and, to
the extent applicable, the laws of the State of Texas excluding any
conflicts-of-law provisions.
APACHE CORPORATION
/s/ Daniel L. Schaeffer
----------------------------------------
Daniel L. Schaeffer
Vice President, Human Resources
Date: 12/15/97
-------------------
21
AMENDMENT
TO
NON-QUALIFIED RETIREMENT/SAVINGS PLAN OF
APACHE CORPORATION
Apache Corporation ("Apache") maintains the Non-Qualified
Retirement/Savings Plan of Apache Corporation (the "Plan"). Pursuant to section
8.02 of the Plan, Apache has retained the right to amend the Plan. Apache hereby
exercises that right, effective as of January 1, 1997, by adding the following
paragraph 3.02(a)(iv) to the Plan.
(iv) Exception. Notwithstanding paragraphs (i) and (ii) above, the
matching contribution for a Participant shall be $0 for any
Plan Year in which the Participant fails to make the maximum
possible salary deferral to the Savings Plan for that Plan
Year. If a matching contribution is made to the Participant's
Account in this Plan before he makes the maximum possible
salary deferral to the Savings Plan for the Plan Year, and the
Participant fails to contribute the maximum possible salary
deferral to the Savings Plan for the Plan Year, then the
Participant shall forfeit any matching contribution (adjusted
to reflect any investment gains or losses thereon) made to the
Participant's Accounts for the Plan Year.
IN WITNESS WHEREOF, this Amendment has been executed the date set forth
below.
APACHE CORPORATION
By: /s/ D. L. Schaeffer
---------------------------------------
Date: December 22, 1998 Title: Vice President, Human Resources
------------------ ------------------------------------
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AMENDMENT
TO
NON-QUALIFIED RETIREMENT/SAVINGS PLAN OF
APACHE CORPORATION
Apache Corporation ("Apache") maintains the Non-Qualified
Retirement/Savings Plan of Apache Corporation (the "Plan"). Pursuant to section
8.02 of the Plan, Apache has retained the right to amend the Plan. Apache hereby
exercises that right, effective as of January 1, 1998, as follows.
1. The following paragraph 3.02(a)(iv) shall be added to the Plan.
(iv) Additional Match. If a Participant's match in the Savings Plan
is reduced to comply with any requirement of federal law (such
as the ACP or multiple-use test of Code section 401(m) or the
limits imposed by Code section 415 or 401(a)(17)) after the
match for this Plan has been calculated, then the
Participant's match for this Plan shall be increased by the
amount of the reduction in the match in the Savings Plan.
2. The existing paragraph 3.02(a)(iv) shall be renumbered paragraph
3.02(a)(v).
3. The phrase "Notwithstanding paragraphs (i) and (ii) above," in the
newly renumbered paragraph 3.02(a)(v) shall be replaced with the phrase
"Notwithstanding paragraphs (i), (ii), and (iv) above."
4. The following sentence shall be added to the end of subsection 3.02(b).
If a Participant's Company Mandatory Contribution in the Retirement
Plan is reduced to comply with any requirement of federal law after the
retirement-6 contribution for this Plan has been calculated, then the
Participant's retirement-6 contribution for this Plan shall be
increased by the amount of the reduction in the Company Mandatory
Contribution in the Retirement Plan.
IN WITNESS WHEREOF, this Amendment has been executed the date set forth
below.
APACHE CORPORATION
By: /s/ D. L. Schaeffer
------------------------------------
Date: December 22, 1998 Title: Vice president, Human Resources
----------------- ---------------------------------
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23
AMENDMENT
TO
NON-QUALIFIED RETIREMENT/SAVINGS PLAN OF
APACHE CORPORATION
Apache Corporation ("Apache") maintains the Non-Qualified
Retirement/Savings Plan of Apache Corporation (the "Plan"). Pursuant to section
8.02 of the Plan, Apache has retained the right to amend the Plan. Apache hereby
exercises that right, effective as of January 1, 1999, as follows.
1. The introductory paragraph in Section 5.02 shall be replaced by the
following.
While a Participant is employed by the Company or an Affiliated Entity,
the only available distributions are a hardship withdrawal pursuant to
Section 5.04 and an age-70-and-older distribution pursuant to Section
5.05. Distributions after the Participant's death are discussed in
Section 5.03. This Section contains the rules that apply to all other
distributions.
2. Subsection 5.02(c) shall be replaced by the following.
(c) Reemployment. If a Participant is reemployed by the Company or
an Affiliated Entity before he is paid his entire vested
Account balance, his payments from the Plan pursuant to this
Section shall be suspended. If the reemployed Participant
receives a payment pursuant to Section 5.05 (regarding
payments to those age 70 and older), his payments after he
eventually terminates employment shall be determined pursuant
to Section 5.05. If the Participant does not receive a payment
pursuant to Section 5.05, payments under this Section will
resume after the Participant again terminates employment, with
the number of remaining payments equal to the number of annual
payments originally chosen, less the number of payments
received before he was reemployed. If the Participant dies
before receiving all installments, Section 5.03 shall apply.
3. Section 5.05 shall be re-numbered as Section 5.06, and the following
Section 5.05 shall be added to the Plan. For an employee who attained
age 70 on or before the end of the Plan Year preceding the effective
date of this amendment, the first distribution pursuant to this new
Section 5.05 will occur as soon as administratively convenient after
the effective date of this amendment.
5.05 Age-70-and-Older Distributions.
(a) General. A Participant who is employed by the Company or an
Affiliated Entity after attaining age 70 shall receive annual
payments from the Plan. The first payment shall be paid in the
Plan Year after the Plan Year in which the Participant attains
age 70. Payments shall be made as early in the Plan Year as is
administratively convenient. Each payment shall be equal to
the Participant's
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Account balance at the end of the prior Plan Year, including
all amounts credited to the Participant's Account as of any
date in the prior Plan Year, and adjusted pursuant to Article
IV to reflect investment experience until the date the payment
is made. A payment shall not include any amount credited to
the Participant's Account as of any date within the current
Plan Year.
(b) Termination Before First Payment. If the Participant dies or
otherwise terminates employment before the first payment under
this Section is made, then this Section will not apply, and
Sections 5.02 and 5.03 will apply instead.
(c) Termination of Employment. When a Participant who has received
one or more payments pursuant to this Section terminates
employment, his remaining Account balance shall be paid as
soon as administratively convenient after his termination of
employment, but only after all Company Deferrals have been
credited to his Account.
IN WITNESS WHEREOF, this Amendment has been executed the date set forth
below.
APACHE CORPORATION
By: /s/ D. L. Schaeffer
--------------------------------------
Date: December 22, 1998 Title: Vice President, Human Resources
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