As filed with the Securities and Exchange Commission on November 10, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Apache Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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No. 41-0747868
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400
(713) 296-6000
(Address of Principal Executive Offices)
Apache Corporation November 10, 2010 First Non-Qualified Stock Option Agreements for Certain Employees of Apache Corporation
Apache Corporation November 10, 2010 Second Non-Qualified Stock Option Agreements for Certain Employees of Apache Corporation
Apache Corporation November 10, 2010 Non-Statutory Stock Option Agreements for Certain Employees of Apache Corporation
(Full Title of Plans)
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P. Anthony Lannie, Executive Vice President and General Counsel
APACHE CORPORATION
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400
(Name and Address of Agent for Service)
(713) 296-6000
(Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a
smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule
12b-2 of the Exchange Act.
Large accelerated filer
þ
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Amount of
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Title of Securities
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Amount to be
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Offering Price
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Aggregate Offering
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Registration
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to be Registered
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Registered (1)
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Per Share (2)
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Price (2)
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Fee (2)
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Common Stock, par value
$0.625 per share, and
associated Preferred
Stock Purchase Rights
(3) to be issued under
the Apache Corporation
November 10, 2010 First
Non-Qualified Stock
Option Agreements for
Certain Employees of
Apache Corporation
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128,548
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57.51
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$7,392,795.48
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$527.11
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Common Stock, par value
$0.625 per share, and
associated Preferred
Stock Purchase Rights
(3) to be issued under
the Apache Corporation
November 10, 2010
Second Non-Qualified
Stock Option Agreements
for Certain Employees
of Apache Corporation
(4)
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15,576
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57.51
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$895,755.76
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$63.87
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Common Stock, par value
$0.625 per share, and
associated Preferred
Stock Purchase Rights
(3) to be issued under
the Apache Corporation
November 10, 2010
Non-Statutory Stock
Option Agreements for
Certain Employees of
Apache Corporation (4)
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1,314
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47.61
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$62,559.54
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$4.46
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Total
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145,438
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$8,351,110.78
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$595.44
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities
Act), the number of shares of common stock (Common Stock) of Apache Corporation
(Apache) to be registered hereunder includes such indeterminate number of additional
shares of Common Stock as may be issued under the employee benefit plans to prevent dilution
by reason of any stock split, stock dividend or other similar transaction.
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(2)
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Estimated solely for purposes of calculating the registration fee pursuant to Rule
457(h)(1) of the Securities Act. The maximum offering price per share is based on the price
at which the options may be exercised.
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(3)
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The registration statement also covers the associated preferred stock purchase rights
(the Rights) issued pursuant to the Rights Agreement, dated January 31, 1996, between
Apache Corporation and Wells Fargo Bank, N.A. (as successor-in-interest to Norwest Bank
Minnesota, N.A.), as amended by Amendment No. 1 thereto dated as of January 31, 2006. Until
the occurrence of certain events, the Rights will not be exercisable for or evidenced
separately from the shares of Common Stock of Apache.
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(4)
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Represents shares of Common Stock issuable pursuant to outstanding options under the
respective agreements at fixed exercise prices.
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TABLE OF CONTENTS
EXPLANATORY NOTE
On November 10, 2010, pursuant to an Agreement and Plan of Merger, dated April 14, 2010, as
amended by Amendment No. 1 thereto dated August 2, 2010 (the Merger Agreement), by and among
Apache Corporation (Apache), Apache Deepwater LLC (formerly known as ZMZ Acquisition LLC), a
Delaware limited liability company and a wholly owned subsidiary of Apache (Merger Sub) and
Mariner Energy, Inc., a Delaware corporation (Mariner), Mariner merged with and into Merger Sub,
with Merger Sub surviving the merger as a wholly owned subsidiary of Apache. Pursuant to the
Merger Agreement, each outstanding option to purchase Mariner common stock was converted into a
fully exercisable option to purchase the number of shares of Apache common stock obtained by
multiplying the number of Mariner shares subject to the option by the 0.24347 exchange ratio set
forth in the Merger Agreement, with a per share exercise price equal to the existing per-Mariner
share exercise price divided by the 0.24347 exchange ratio (with any resulting exercise price that
contains a fraction of a cent being increased to the next whole cent).
This Registration Statement has been filed for the purpose of registering the 145,438 shares
of Apache common stock issuable upon the exercise of outstanding options granted under the (1)
Apache Corporation November 10, 2010 First Non-Qualified Stock Option Agreements for Certain
Employees of Apache Corporation, (2) Apache Corporation November 10, 2010 Second Non-Qualified
Stock Option Agreements for Certain Employees of Apache Corporation and (3) Apache Corporation
November 10, 2010 Non-Statutory Stock Option Agreements for Certain Employees of Apache
Corporation.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 have been or
will be sent or given to participants in the Plans as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the Securities Act). These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Apache with the Securities and Exchange Commission (the
Commission) pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act),
Commission File No. 001-04300, are incorporated by reference into this Registration Statement
(other than information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form
8-K or exhibits filed under Item 9.01 relating to those Items, unless expressly stated otherwise
therein):
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(1)
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Annual Report on Form 10-K and 10-K/A for the fiscal year ended December 31, 2009.
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(2)
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Quarterly Reports on Form 10-Q and Form 10-Q/A for the quarters ended March 31, 2010,
June 30, 2010 and September 30, 2010.
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(3)
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Current Reports on Form 8-K and 8-K/A filed with the Commission on January 14, 2010,
January 19, 2010, April 15, 2010, April 16, 2010, May 11, 2010, July 20, 2010, July 21,
2010 (2 filings), July 28, 2010, August 3, 2010, August 11, 2010, August 16, 2010, August
20, 2010, October 12, 2010, November 5, 2010 and November 9, 2010.
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(4)
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Any description of Apaches Common Stock contained in a registration statement filed
pursuant to the Exchange Act and any amendment or report filed for the purpose of updating
such description.
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In addition, all documents filed by Apache pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement that indicates that all securities
offered have been sold or that deregisters all securities
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then remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in this Registration Statement, in any amendment hereto or in a
document incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any
subsequently filed amendment to this Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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Apaches Certificate of Incorporation and bylaws provide that, to the full extent permitted
under the Delaware General Corporation Law, Apaches directors shall not be personally liable for
monetary damages. Apaches bylaws provide that Apache shall indemnify its officers, directors,
employees and agents.
Section 145 of the Delaware General Corporation Law, inter alia, authorizes a corporation to
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, other than an action by or in the right of the
corporation, because such person is or was a director, officer, employee or agent of the
corporation or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation or other enterprise, against expenses, including attorneys fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reason to believe his conduct was unlawful. Similar indemnity
is authorized for such persons against expenses, including attorneys fees, actually and reasonably
incurred in defense or settlement of any such pending, completed or threatened action or suit by or
in the right of the corporation if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and provided further
that, unless a court of competent jurisdiction otherwise provides, such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard of conduct.
Section 145 of the Delaware General Corporation Law further authorizes a corporation to
purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his status as such, whether
or not the corporation would otherwise have the power to indemnify him. Apache maintains policies
insuring its and its subsidiaries officers and directors against specified liabilities for actions
taken in such capacities, including liabilities under the Securities Act of 1933.
Article VII of Apaches bylaws provides, in substance, that directors, officers, employees and
agents of Apache shall be indemnified to the extent permitted by Section 145 of the Delaware
General Corporation Law. Additionally, Article Seventeenth of Apaches restated certificate of
incorporation eliminates in specified circumstances the monetary liability of directors of Apache
for a breach of their fiduciary duty as directors. These provisions do not eliminate the liability
of a director:
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for a breach of the directors duty of loyalty to Apache or its stockholders;
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for acts or omissions by the director not in good faith;
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or acts or omissions by a director involving intentional misconduct or a knowing
violation of the law;
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under Section 174 of the Delaware General Corporation Law, which relates to the
declaration of dividends and purchase or redemption of shares in violation of the Delaware
General Corporation Law; and
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for transactions from which the director derived an improper personal benefit.
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Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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The following exhibits are filed herewith unless otherwise indicated:
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Exhibit
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Number
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Description of Exhibit
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4.1
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Restated Certificate of Incorporation of Apache Corporation, dated February
23, 2010, as filed with the Secretary of State of Delaware on February 23,
2010 (incorporated by reference to Exhibit 3.1 to Apache Corporations Annual
Report on Form 10-K for the year ended December 31, 2009, SEC File No.
001-4300).
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4.2
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Bylaws of Apache Corporation, as amended August 6, 2009 (incorporated by
reference to Exhibit 3.2 to Apache Corporations Quarterly Report on Form 10-Q
for quarter ended June 30, 2009, SEC File No. 001-4300).
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4.3
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Form of Certificate for Apache Corporations Common Stock (incorporated by
reference to Exhibit 4.1 to Apache Corporations Quarterly Report on Form 10-Q
for the quarter ended March 31, 2004, SEC File No. 001-4300).
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4.4
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Rights Agreement, dated as of January 31, 1996, between Apache Corporation and
Wells Fargo Bank, N.A. (as successor-in-interest to Norwest Bank Minnesota,
N.A.), rights agent, relating to the declaration of a rights dividend to
Apache Corporations common stockholders of record on January 31, 1996
(incorporated by reference to Exhibit (a) to Apache Corporations Registration
Statement on Form 8-A, dated January 24, 1996, SEC File No. 001-4300).
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4.5
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Amendment No. 1, dated as of January 31, 2006, to the Rights Agreement dated
as of December 31, 1996, between Apache Corporation, a Delaware corporation,
and Wells Fargo Bank, N.A. (as successor-in-interest to Norwest Bank
Minnesota, N.A.) (incorporated by reference to Exhibit 4.4 to Apache
Corporations Amendment No. 1 to Registration Statement on Form 8-A, dated
January 31, 2006, SEC File No. 001-4300).
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*4.6
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Form of Apache Corporation November 10, 2010 First Non-Qualified Stock Option
Agreements for Certain Employees of Apache Corporation.
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*4.7
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Form of Apache Corporation November 10, 2010 Second Non-Qualified Stock Option
Agreements for Certain Employees of Apache Corporation.
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*4.8
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Form of Apache Corporation November 10, 2010 Non-Statutory Stock Option
Agreements for Certain Employees of Apache Corporation.
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*5.1
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Opinion of Andrews Kurth LLP regarding legality of securities being registered.
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*23.1
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Consent of Ernst & Young LLP.
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*23.2
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Consent of Ryder Scott Company, L.P.
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*23.3
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Consent of Andrews Kurth LLP (included in the opinion filed as Exhibit 5.1).
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*24.1
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Powers of Attorney (included on the signature page of this Registration
Statement on Form S-8).
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3
Item 9. Undertakings
.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information
in the registration statement;
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by Apache pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each
filing of Apaches annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement relating to the securities offered herein shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of Apache pursuant to the foregoing
provisions or otherwise, Apache has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Apace of expenses incurred or paid by a director, officer or
controlling person of Apache in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being
registered, Apache will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
4
SIGNATURES
The Registrant
. Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of Houston, State of Texas.
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APACHE CORPORATION
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Date: November 10, 2010
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By:
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/s/ Roger B. Plank
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Roger B. Plank
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President
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints G. Steven Farris, Roger B. Plank, P. Anthony Lannie and Rebecca A. Hoyt, and each of them,
any of whom may act without joinder of the other, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign and to file any and all amendments to this
Registration Statement, including post-effective amendments to this Registration Statement, with
all exhibits thereto and all other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing, ratifying and confirming all that
said attorneys-in-fact and agents, and each of them, or the substitute or substitutes of any of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed below by the following persons in the capacities and on the dates
indicated below.
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Signature
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Title
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Date
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/s/ G. Steven Farris
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Chairman of the Board and Chief
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November 10, 2010
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Executive
Officer
(Principal Executive Officer)
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/s/ Roger B. Plank
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President
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November 10, 2010
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(Principal
Financial Officer)
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/s/ Rebecca A. Hoyt
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Vice President and Controller
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November 10, 2010
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(Principal
Accounting Officer)
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Director
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November 10, 2010
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Frederick M. Bohen
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Director
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November 10, 2010
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Randolph M. Ferlic
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Director
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November 10, 2010
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Eugene C. Fiedorek
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Director
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November 10, 2010
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A. D. Frazier, Jr.
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Signature
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Title
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Date
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/s/ Patricia Albjerg Graham
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Director
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November 10, 2010
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Patricia Albjerg Graham
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Director
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November 10, 2010
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John A. Kocur
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Director
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November 10, 2010
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George D. Lawrence
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Director
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November 10, 2010
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F. H. Merelli
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Director
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November 10, 2010
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Rodman D. Patton
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Director
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November 10, 2010
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Charles J. Pitman
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EXHIBIT INDEX
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Exhibit
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Number
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Description of Exhibit
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4.1
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Restated Certificate of Incorporation of Apache Corporation, dated February
23, 2010, as filed with the Secretary of State of Delaware on February 23,
2010 (incorporated by reference to Exhibit 3.1 to Apache Corporations Annual
Report on Form 10-K for the year ended December 31, 2009, SEC File No.
001-4300).
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4.2
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Bylaws of Apache Corporation, as amended August 6, 2009 (incorporated by
reference to Exhibit 3.2 to Apache Corporations Quarterly Report on Form 10-Q
for quarter ended June 30, 2009, SEC File No. 001-4300).
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4.3
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Form of Certificate for Apache Corporations Common Stock (incorporated by
reference to Exhibit 4.1 to Apache Corporations Quarterly Report on Form 10-Q
for the quarter ended March 31, 2004, SEC File No. 001-4300).
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4.4
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Rights Agreement, dated as of January 31, 1996, between Apache Corporation and
Wells Fargo Bank, N.A. (as successor-in-interest to Norwest Bank Minnesota,
N.A.), rights agent, relating to the declaration of a rights dividend to
Apache Corporations common stockholders of record on January 31, 1996
(incorporated by reference to Exhibit (a) to Apache Corporations Registration
Statement on Form 8-A, dated January 24, 1996, SEC File No. 001-4300).
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4.5
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Amendment No. 1, dated as of January 31, 2006, to the Rights Agreement dated
as of December 31, 1996, between Apache Corporation, a Delaware corporation,
and Wells Fargo Bank, N.A. (as successor-in-interest to Norwest Bank
Minnesota, N.A.) (incorporated by reference to Exhibit 4.4 to Apache
Corporations Amendment No. 1 to Registration Statement on Form 8-A, dated
January 31, 2006, SEC File No. 001-4300).
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*4.6
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Form of Apache Corporation November 10, 2010 First Non-Qualified Stock Option
Agreements for Certain Employees of Apache Corporation.
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*4.7
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Form of Apache Corporation November 10, 2010 Second Non-Qualified Stock Option
Agreements for Certain Employees of Apache Corporation.
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*4.8
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Form of Apache Corporation November 10, 2010 Non-Statutory Stock Option
Agreements for Certain Employees of Apache Corporation.
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*5.1
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Opinion of Andrews Kurth LLP regarding legality of securities being registered.
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*23.1
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Consent of Ernst & Young LLP.
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*23.2
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Consent of Ryder Scott Company, L.P.
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*23.3
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Consent of Andrews Kurth LLP (included in the opinion filed as Exhibit 5.1).
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*24.1
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Powers of Attorney (included on the signature page of this Registration
Statement on Form S-8).
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Exhibit 4.6
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT
(this
Agreement
) made as of November 10, 2010 (the
Effective Date
), between
APACHE CORPORATION
, a Delaware corporation (the
Company
), and ____________________ (
Optionee
).
WHEREAS, Mariner Energy, Inc., a Delaware corporation (
Mariner
), granted Optionee a
non-qualified stock option to purchase Mariners common stock, par value $.0001 per share (the
Mariner Stock Option
), pursuant to a Non-Qualified Stock Option Agreement made as of March 11,
2005 (the
Original Grant Date
);
WHEREAS, as of the Effective Date, the Mariner Stock Option was fully vested as to the number
of shares covered thereby that remained unexercised (the
Remaining Mariner Shares
) at an exercise
price of $14.00 per share (the
Mariner Exercise Price
);
WHEREAS, on the Effective Date, Mariner was merged with and into a wholly-owned subsidiary of
the Company pursuant to an Agreement and Plan of Merger, executed April 14, 2010, as amended by
Amendment No. 1 dated August 2, 2010, among the Company, Apache Deepwater LLC and Mariner (the
Merger Agreement
), and Optionee became an employee of the Company or a subsidiary of the Company
(
Subsidiary
);
WHEREAS, Section 1.7(a) of the Merger Agreement provides that the Mariner Stock Option be
converted into an option to acquire __________________ shares of the Companys common stock, par
value $0.625 per share (
Company Stock
), which is equal to the Remaining Mariner Shares multiplied
by 0.24347, with any fractional share decreased to the next whole number of shares, at an exercise
price of $57.51 per share, which is equal to the Mariner Exercise Price divided by 0.24347, with
any fraction of a cent increased to the next whole cent; and
WHEREAS, this Agreement effects the conversion of the Mariner Stock Option into an option to
acquire Company Stock on the terms and subject to the conditions hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1.
Grant of Option
. The Company hereby irrevocably grants to Optionee the right and
option (
Option
) to purchase all or any part of the aggregate number of shares of Company Stock
stated above on the terms and conditions set forth herein. This Option is not intended to qualify
as an incentive stock option within the meaning of section 422 of the Internal Revenue Code of
1986, as amended (the
Code
). Reference in this Agreement to any section of the Code shall be
deemed to include any amendments or successor provisions to such section and any regulations under
such section.
2.
Purchase Price
. The purchase price of Company Stock purchased pursuant to the
exercise of this Option shall be $57.51 per share.
3.
Exercise of Option
. Subject to further provisions of this Agreement and the
earlier expiration of this Option as herein provided, this Option may be exercised, by contacting
Fidelity Stock Plan Services, the Companys Administrative Agent, at www.netbenefits.com or calling
1-800-544-9354, or delivering a written notice to the Office of the Secretary of the Company in a
form satisfactory to the Committee (defined below), at any time and from time to time after the
Effective Date. There is no minimum or maximum number of shares that must be purchased upon
exercise of this Option. Instead, this Option may be exercised, at any time and from time to time,
to purchase any number of Shares that are exercisable according to the provisions of this
Agreement. As used in this Agreement,
Committee
shall mean the Stock Option Plan Committee of
the Companys Board of Directors.
For purposes of the next sentence and subparts (a) through (d) thereof, references to the
Company include the Company or any Affiliate (defined below). This Option may be exercised only
while Optionee remains an employee of the Company and will terminate and cease to be exercisable
upon Optionees termination of employment with the Company (which shall include termination as an
employee or a director of the Company), except that:
(a)
Disability
. If Optionee is entitled to benefits under Section 7(d) of the
Employment Agreement between Mariner and Optionee, as in effect on November 9, 2010
(
Employment Agreement
) or, if the Employment Agreement has terminated, Optionees
employment with the Company terminates by reason of a disability that entitles Optionee to
benefits under the Companys long-term disability plan, this Option may be exercised at any
time during the one-year period following such termination by Optionee or by Optionees
guardian or legal representative (or, if Optionee dies during such one-year period, by
Optionees estate or the person who acquires this Option by will or the laws of descent and
distribution).
(b)
Death
. If Optionee dies while in the employ of the Company, subject to
the further provisions of this Agreement, Optionees estate (or the person who acquires this
Option by will or the laws of descent and distribution) may exercise this Option at any time
during the one-year period following the date of Optionees death.
(c)
Termination by the Company other than for Cause or by Optionee for Good
Reason
. If Optionees employment with the Company is terminated by the Company for any
reason other than for Cause (as defined below) or is terminated by Optionee for Good Reason
(as defined below), this Option may be exercised, subject to the further provisions of this
Agreement, at any time during the three month period following such termination by Optionee
or by Optionees guardian or legal representative (or by Optionees estate or the person who
acquires this Option by will or the laws of descent and distribution or otherwise by reason
of Optionees death if Optionee dies during such period).
(d)
Termination For Cause or other than for Good Reason
. If Optionees
employment with the Company is terminated by the Company for Cause or by Optionee other than
for Good Reason, this Option shall immediately cease to be exercisable upon such termination
and shall be cancelled automatically without payment.
-2-
As used in this Agreement,
Affiliate
means any corporation, partnership, limited liability
company or partnership, association, trust or other organization which, directly or indirectly,
controls, is controlled by, or is under common control with, the Company. For purposes of the
preceding sentence, control (including, with correlative meanings, the terms controlled by and
under common control with), as used with respect to any entity or organization, shall mean the
possession, directly or indirectly, of the power (i) to vote more than 50% of the securities having
ordinary voting power for the election of directors of the controlled entity or organization, or
(ii) to direct or cause the direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract or otherwise.
As used in this Agreement,
Cause
shall have the meaning ascribed to such term in Optionees
Employment Agreement, or if the Employment Agreement has terminated, shall mean Optionees (i)
material failure to perform Optionees duties, (ii) conviction of or plea of nolo contendere for
any felony or any misdemeanor involving moral turpitude, dishonesty, fraud or breach of trust,
(iii) willful engagement in gross misconduct in the performance of Optionees duties, (iv)
substance abuse, (v) misappropriation of funds, or (vi) disparagement of the Company or any
Subsidiary or any of their respective managements or employees.
As used in this Agreement,
Good Reason
shall have the meaning ascribed to such term in
Optionees Employment Agreement, or if the Employment Agreement has terminated, shall mean (i) a
material adverse change in the nature or scope of Optionees authorities, powers, duties and
functions performed; (ii) a material reduction in Optionees base salary or in the cash bonus
opportunities made available to Optionee, excluding opportunities under (A) any plan, program,
arrangement or agreement providing for compensation in the form of overriding royalty interests or
income from overriding royalty interests, (B) any equity-based compensation plans, programs,
arrangements or agreements, including, but not limited to, stock options, and (C) 401(k) and
profit-sharing plans; or (iii) Optionees permanent place of employment with the Company is changed
to a location that is more than 50 miles from Optionees location prior to such change.
4.
Term
. Notwithstanding any of the foregoing, this Option shall not be exercisable
in any event after the expiration of 10 years from the Original Grant Date.
5.
Payment of Exercise Price
. The purchase price of the shares as to which this
Option is exercised shall be paid in full at the time of exercise (a) in cash (including by check
acceptable to the Company), (b) if the Shares are readily tradable on a national securities market
or exchange, through a cashless broker exercise program approved in advance by the Company, (c)
any other method approved by the Committee , including by certification or attestation to Fidelity
Stock Plan Services or to the Office of the Secretary of the Company of a number of shares then
owned by the Optionee and held by the Optionee for a period of at least six months prior to the
date of such delivery having an aggregate Fair Market Value at the exercise date equal to the
aggregate purchase price, or (d) any combination of the foregoing. Unless and until the shares as
to which this Option is exercised have been represented by a book entry or a certificate(s)
delivered by the Company or its transfer agent to Optionee, Optionee (or the person permitted to
exercise this Option in the event of Optionees death) shall not be or have any of the rights or
privileges of a stockholder of the Company with respect to such shares.
-3-
As used in this Agreement,
Fair Market Value
shall mean, as of any applicable date, the per
share closing price of the Company Stock as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for a particular date or, if the Company Stock is not so listed on
such date, as reported on NASDAQ or on such other exchange or electronic trading system which, on
the date in question, reports the largest number of traded shares of Company Stock,
provided
,
however
, that if on the date Fair Market Value is to be determined there
are no transactions in the Company Stock, Fair Market Value shall be determined as of the
immediately preceding date on which there were transactions in the Company Stock;
provided
further
,
however
, that if the foregoing provisions are not applicable, the fair
market value of a share of the Company Stock as determined by the Committee by the reasonable
application of such reasonable valuation method, consistently applied, as the Committee deems
appropriate.
6.
Withholding of Tax
. To the extent that the exercise of this Option results in the
receipt of compensation by Optionee with respect to which the Company or a Subsidiary has a tax
withholding obligation pursuant to applicable law, Optionee shall either deliver to the Company or
the Subsidiary such amount of money as the Company or the Subsidiary may require to meet its
withholding obligations under such applicable law or have the Company withhold a number of shares
that would otherwise be delivered on exercise or vesting that have an aggregate Fair Market Value
that does not exceed the amount of taxes to be withheld; provided, however, that if Optionee fails
to satisfy the Companys or the Subsidiarys tax withholding obligations, the Company, in its sole
discretion, may withhold a number of shares that would otherwise be delivered on exercise or
vesting that have an aggregate Fair Market Value equal to the amount of taxes required to be
withheld. No delivery of shares shall be made pursuant to the exercise of an Option under this
Agreement until Optionee has paid or made arrangements approved by the Company or the Subsidiary to
satisfy in full the applicable tax withholding requirements of the Company or Subsidiary.
7.
Adjustments
. In the event of a stock dividend or stock split with respect to shares
of Company Stock, the number of shares subject to this Option, and the exercise price with respect
to this Option automatically shall be proportionately adjusted, without action by the Committee.
The Company shall notify the Optionee of such adjustment by electronic mail as soon as reasonably
practicable after such event. No adjustment authorized by this paragraph shall be made by the
Company in such manner that would cause or result in this Agreement or any amounts or benefits
payable hereunder to fail to comply with the requirements of Section 409A of the Code, to the
extent applicable, and any such adjustment that may reasonably be expected to result in such
non-compliance shall be of no force or effect.
8.
Unusual Transactions or Events
. In the event of any distribution (whether in the
form of cash, shares of Company Stock, other securities, or other property), recapitalization,
reorganization, merger, spin-off, split-off, split-up, consolidation, combination, repurchase, or
exchange of shares or other securities of the Company, or other relevant corporate transaction or
event or any unusual or nonrecurring transactions or events affecting the Company or any Affiliate
of the Company, and whenever the Committee determines that action is appropriate in order to
prevent the dilution or enlargement of the benefits or potential benefits intended to be made
available with respect to this Option, to facilitate such transactions or events, the Committee
shall take any one or more of the following actions, on such terms and conditions as
-4-
it deems appropriate in its sole discretion, in order to prevent such dilution or enlargement
of benefits or potential benefits:
|
(A)
|
|
To provide for either (i) the termination of this Option in exchange for an
amount of cash, if any, equal to the amount that would have been attained upon the
exercise of this Option or realization of Optionees rights (and, for the avoidance of
doubt, if as of the date of the occurrence of such transaction or event the Committee
determines in good faith that no amount would have been attained upon the exercise of
this Option or realization of the Optionees rights, then this Option may be terminated
by the Company without payment) or (ii) the replacement of this Option with other
rights or property selected by the Committee in its sole discretion;
|
|
|
(B)
|
|
To provide that this Option be assumed by the successor or survivor
corporation, or a parent or subsidiary thereof, or shall be substituted for by similar
options, rights or awards covering the stock of the successor or survivor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the number and
kind of shares and prices;
|
|
|
(C)
|
|
To make adjustments in the number and type of shares (or other securities or
property) subject to this Option, and/or in the terms and conditions of (including the
grant or exercise price), and the criteria included in, this Option; and
|
|
|
(D)
|
|
To provide that this Option shall be exercisable or payable or fully vested
with respect to all shares covered hereby, notwithstanding anything to the contrary in
this Agreement.
|
9.
Restrictions
. By accepting this grant, Optionee agrees that the shares which
Optionee may acquire by exercising this Option will not be sold or otherwise disposed of in any
manner which would constitute a violation of any applicable federal or state securities laws.
Optionee also agrees that (i) the book entry made (or the certificates, if any are issued)
representing the shares purchased under this Option may bear such restriction, restrictions, legend
or legends as the Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) the Company may refuse to register the transfer of the shares purchased under
this Option on the transfer records of the Company if such proposed transfer would in the opinion
of counsel satisfactory to the Company constitute a violation of any applicable securities law, and
(iii) the Company may give related instructions to its transfer agent, if any, to stop registration
of the transfer of the shares purchased under this Option.
10.
Limitations Upon Transfer
. All rights under this Agreement shall belong to
Optionee alone and may not be transferred, assigned, pledged, or hypothecated by Optionee in any
way (whether by operation of law or otherwise), other than by will or the laws of descent and
distribution and shall not be subject to execution, attachment, or similar process. Upon any
attempt by Optionee to transfer, assign, pledge, hypothecate, or otherwise dispose of such rights
contrary to the provisions in this Agreement, or upon the levy of any attachment or similar process
upon such rights, such rights shall immediately become null and void.
-5-
11.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Optionee.
12.
Entire Agreement
.
This Agreement and the Employment Agreement constitute the
entire agreement of the parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties and agreements between the parties with respect to
this Option. Without limiting the scope of the preceding sentence, all prior understandings and
agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null
and void and of no further force and effect.
13.
Modifications.
Except as provided below, any modification of this Agreement shall
be effective only if it is in writing and signed by both Optionee and an authorized officer of the
Company; provided, however, that the Committee may waive any conditions or rights under, amend any
terms of, or alter this Option, provided no change in this Option shall materially adversely affect
the rights of Optionee without Optionees written consent. Notwithstanding the foregoing, with
respect to any Option intended to qualify as performance-based compensation under Section 162(m) of
the Code, no adjustment other than a payment upon Optionees death, disability or change in
control of the Company, shall be authorized to the extent such adjustment would cause this Option
to fail to so qualify.
14.
Section 409A of the Code
. Notwithstanding anything in this Agreement to the
contrary, (i) if the Committee determines that the terms of this grant do not, in whole or in part,
satisfy the requirements of Section 409A of the Code, the Committee, in its sole discretion, may
unilaterally modify this Agreement in such manner as it deems appropriate to comply with such
section and any regulations or guidance issued thereunder, and (ii) the Committee may make any
amendment to this Option that it believes necessary to comply with any applicable law, including
without limitation, Section 409A of the Code. This Option is intended to comply with (or be exempt
from) Section 409A of the Code and ambiguous provisions hereof, if any, shall be construed and
interpreted in a manner that is compliant with such intent. This Agreement shall neither cause nor
permit any payment, benefit or consideration to be substituted for a benefit that is payable under
this Agreement if such action would result in the failure of any amount that is subject to Section
409A of the Code to comply with the requirements of Section 409A of the Code, to the extent
applicable.
15.
General Provisions
.
(a)
No Right to Employment or Retention
. The grant of this Option shall not be
construed as giving Optionee the right to be retained in the employ of the Company or any
Affiliate or under any other service contract with the Company or any Affiliate. Further,
the Company or an Affiliate may at any time dismiss Optionee from employment free from any
liability or any claim under this Agreement, unless otherwise expressly provided in this
Agreement or any other agreement or contract between the Company or an Affiliate and
Optionee. If Optionees employer was an Affiliate and ceases to be an Affiliate, Optionee
shall be deemed to have terminated employment for purposes of this Agreement, unless
specifically provided otherwise herein.
-6-
(b)
Severability
. If any provision of this Agreement is or becomes or is deemed
to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or this
Option, or would disqualify this Option under any law deemed applicable by the Committee,
such provision shall be construed or deemed amended to conform to the applicable laws, or if
it cannot be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of this Option, such provision shall be stricken as to such
jurisdiction, person or this Option and the remainder of this Option shall remain in full
force and effect.
(c)
Other Laws
. The Committee may refuse to issue or transfer any Shares or
other consideration under this Option, if, acting in its sole discretion, it determines that
the issuance or transfer of such Shares or such other consideration might violate any
applicable law or regulation, and in such event, the Company shall promptly return to the
Optionee (or other holder or beneficiary) any payment Optionee (or such other holder or
beneficiary) tendered to the Company.
(d)
No Trust or Fund Created
. This Option shall not create or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between the Company
or any Affiliate and Optionee or any other person. To the extent that any person acquires a
right to receive payments from the Company or any Affiliate pursuant to this Option, such
right shall be no greater than the right of any general unsecured creditor of the Company or
any Affiliate.
(e)
No Fractional Shares
. No fraction of a share shall be issuable or issued
upon exercise of this Option
16.
Governing Law
. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas, without regard to conflicts of laws principles thereof.
*****
-7-
Exhibit 4.7
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT
(this
Agreement
) made as of November 10, 2010 (the
Effective Date
), between
APACHE CORPORATION
, a Delaware corporation (the
Company
), and ____________________ (
Optionee
).
WHEREAS, Mariner Energy, Inc., a Delaware corporation (
Mariner
), granted Optionee a
non-qualified stock option to purchase Mariners common stock, par value $.0001 per share (the
Mariner Stock Option
), pursuant to a Non-Qualified Stock Option Agreement made as of __________,
2005 (the
Original Grant Date
);
WHEREAS, as of the Effective Date, the Mariner Stock Option was fully vested as to the shares
covered thereby that remain unexercised (the
Remaining Mariner Shares
) at an exercise price of
$14.00 per share (the
Mariner Exercise Price
);
WHEREAS, on the Effective Date, Mariner was merged with and into a wholly-owned subsidiary of
the Company pursuant to an Agreement and Plan of Merger, executed April 14, 2010, as amended by
Amendment No. 1 dated August 2, 2010, among the Company, Apache Deepwater LLC and Mariner (the
Merger Agreement
), and Optionee became an employee of the Company or a subsidiary of the Company
(
Subsidiary
);
WHEREAS, Section 1.7(a) of the Merger Agreement provides that the Mariner Stock Option be
converted into an option to acquire __________________ shares of the Companys common stock, par
value $0.625 per share (
Company Stock
), which is equal to the Remaining Mariner Shares multiplied
by 0.24347, with any fractional share decreased to the next whole number of shares, at an exercise
price of $57.51 per share, which is equal to the Mariner Exercise Price divided by 0.24347, with
any fraction of a cent increased to the next whole cent; and
WHEREAS, this Agreement effects the conversion of the Mariner Stock Option into an option to
acquire Company Stock on the terms and subject to the conditions hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1.
Grant of Option
. The Company hereby irrevocably grants to Optionee the right and
option (
Option
) to purchase all or any part of the aggregate number of shares of Company Stock
stated above on the terms and conditions set forth herein. This Option is not intended to qualify
as an incentive stock option within the meaning of section 422 of the Internal Revenue Code of
1986, as amended (the
Code
). Reference in this Agreement to any section of the Code shall be
deemed to include any amendments or successor provisions to such section and any regulations under
such section.
2.
Purchase Price
. The purchase price of Company Stock purchased pursuant to the
exercise of this Option shall be $57.51 per share.
3.
Exercise of Option
. Subject to the further provisions of this Agreement and
earlier expiration of this Option as herein provided, this Option may be exercised, by contacting
Fidelity Stock Plan Services, the Companys Administrative Agent, at www.netbenefits.com or calling
1-800-544-9354, or delivering a written notice to the Office of the Secretary of the Company in a
form satisfactory to the Committee (defined below), at any time and from time to time after the
Effective Date. There is no minimum or maximum number of shares that must be purchased upon
exercise of this Option. Instead, this Option may be exercised, at any time and from time to time,
to purchase any number of Shares that are exercisable according to the provisions of this
Agreement. As used in this Agreement,
Committee
shall mean the Stock Option Plan Committee of
the Companys Board of Directors.
For purposes of the next sentence and subparts (a) through (d) thereof, references to the
Company include the Company or any Affiliate (defined below). This Option may be exercised only
while Optionee remains an employee of the Company and will terminate and cease to be exercisable
upon Optionees termination of employment with the Company (which shall include termination as an
employee or a director of the Company), except that:
(a)
Disability
. If Optionees employment with the Company terminates by reason
of a disability that entitles Optionee to benefits under the Companys long-term disability
plan, this Option may be exercised at any time during the one-year period following such
termination by Optionee or by Optionees guardian or legal representative (or, if Optionee
dies during such one-year period, by Optionees estate or the person who acquires this
Option by will or the laws of descent and distribution).
(b)
Death
. If Optionee dies while in the employ of the Company, subject to
the further provisions of this Agreement, Optionees estate (or the person who acquires this
Option by will or the laws of descent and distribution) may exercise this Option at any time
during the one-year period following the date of Optionees death.
(c)
Termination For Cause
. If Optionees employment with the Company is
terminated by the Company for Cause (as defined below), this Option shall immediately cease
to be exercisable upon such termination and shall be cancelled automatically without
payment.
Cause
shall mean Optionees (i) material failure to perform Optionees duties,
(ii) conviction of or plea of nolo contendere for any felony or any misdemeanor involving
moral turpitude, dishonesty, fraud or breach of trust, (iii) willful engagement in gross
misconduct in the performance of Optionees duties, (iv) substance abuse, (v)
misappropriation of funds, or (vi) disparagement of the Company or any Subsidiary or any of
their respective managements or employees.
(d)
Other Termination
. If Optionees employment with the Company is terminated
for any reason other than as provided in paragraphs 3(a), (b) and (c) above, this Option may
be exercised, subject to the further provisions of this Agreement, at any time during the
three month period following such termination by Optionee or by Optionees guardian or legal
representative (or by Optionees estate or the person who acquires this Option by will or
the laws of descent and distribution or otherwise by reason of Optionees death if Optionee
dies during such period).
-2-
As used in this Agreement,
Affiliate
means any corporation, partnership, limited liability
company or partnership, association, trust or other organization which, directly or indirectly,
controls, is controlled by, or is under common control with, the Company. For purposes of the
preceding sentence, control (including, with correlative meanings, the terms controlled by and
under common control with), as used with respect to any entity or organization, shall mean the
possession, directly or indirectly, of the power (i) to vote more than 50% of the securities having
ordinary voting power for the election of directors of the controlled entity or organization, or
(ii) to direct or cause the direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract or otherwise.
4.
Term
. Notwithstanding any of the foregoing, this Option shall not be exercisable
in any event after the expiration of 10 years from the Original Grant Date.
5.
Payment of Exercise Price
. The purchase price of the shares as to which this
Option is exercised shall be paid in full at the time of exercise (a) in cash (including by check
acceptable to the Company), (b) if the Shares are readily tradable on a national securities market
or exchange, through a cashless broker exercise program approved in advance by the Company, (c)
any other method approved by the Committee , including by certification or attestation to Fidelity
Stock Plan Services or to the Office of the Secretary of the Company of a number of shares then
owned by the Optionee and held by the Optionee for a period of at least six months prior to the
date of such delivery having an aggregate Fair Market Value at the exercise date equal to the
aggregate purchase price, or (d) any combination of the foregoing. Unless and until the shares as
to which this Option is exercised have been represented by a book entry or a certificate(s)
delivered by the Company or its transfer agent to Optionee, Optionee (or the person permitted to
exercise this Option in the event of Optionees death) shall not be or have any of the rights or
privileges of a stockholder of the Company with respect to such shares.
As used in this Agreement,
Fair Market Value
shall mean, as of any applicable date, the per
share closing price of the Company Stock as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for a particular date or, if the Company Stock is not so listed on
such date, as reported on NASDAQ or on such other exchange or electronic trading system which, on
the date in question, reports the largest number of traded shares of Company Stock,
provided
,
however
, that if on the date Fair Market Value is to be determined there
are no transactions in the Company Stock, Fair Market Value shall be determined as of the
immediately preceding date on which there were transactions in the Company Stock;
provided
further
,
however
, that if the foregoing provisions are not applicable, the fair
market value of a share of the Company Stock as determined by the Committee by the reasonable
application of such reasonable valuation method, consistently applied, as the Committee deems
appropriate.
6.
Withholding of Tax
. To the extent that the exercise of this Option results in the
receipt of compensation by Optionee with respect to which the Company or a Subsidiary has a tax
withholding obligation pursuant to applicable law, Optionee shall either deliver to the Company or
the Subsidiary such amount of money as the Company or the Subsidiary may require to meet its
withholding obligations under such applicable law or have the Company withhold a number of shares
that would otherwise be delivered on exercise or vesting that have an aggregate Fair Market Value
that does not exceed the amount of taxes to be withheld;
-3-
provided
,
however
, that if Optionee fails to satisfy the Companys or the
Subsidiarys tax withholding obligations, the Company, in its sole discretion, may withhold a
number of shares that would otherwise be delivered on exercise or vesting that have an aggregate
Fair Market Value equal to the amount of taxes required to be withheld. No delivery of shares
shall be made pursuant to the exercise of an Option under this Agreement until Optionee has paid or
made arrangements approved by the Company or the Subsidiary to satisfy in full the applicable tax
withholding requirements of the Company or Subsidiary.
7.
Adjustments
. In the event of a stock dividend or stock split with respect to shares
of Company Stock, the number of shares subject to this Option, and the exercise price with respect
to this Option automatically shall be proportionately adjusted, without action by the Committee.
The Company shall notify the Optionee of such adjustment by electronic mail as soon as reasonably
practicable after such event. No adjustment authorized by this paragraph shall be made by the
Company in such manner that would cause or result in this Agreement or any amounts or benefits
payable hereunder to fail to comply with the requirements of Section 409A of the Code, to the
extent applicable, and any such adjustment that may reasonably be expected to result in such
non-compliance shall be of no force or effect.
8.
Unusual Transactions or Events
. In the event of any distribution (whether in the
form of cash, shares of Company Stock, other securities, or other property), recapitalization,
reorganization, merger, spin-off, split-off, split-up, consolidation, combination, repurchase, or
exchange of shares or other securities of the Company, or other relevant corporate transaction or
event or any unusual or nonrecurring transactions or events affecting the Company or any Affiliate
of the Company, and whenever the Committee determines that action is appropriate in order to
prevent the dilution or enlargement of the benefits or potential benefits intended to be made
available with respect to this Option, to facilitate such transactions or events, the Committee
shall take any one or more of the following actions, on such terms and conditions as it deems
appropriate in its sole discretion, in order to prevent such dilution or enlargement of benefits or
potential benefits:
|
(A)
|
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To provide for either (i) the termination of this Option in exchange for an
amount of cash, if any, equal to the amount that would have been attained upon the
exercise of this Option or realization of Optionees rights (and, for the avoidance of
doubt, if as of the date of the occurrence of such transaction or event the Committee
determines in good faith that no amount would have been attained upon the exercise of
this Option or realization of the Optionees rights, then this Option may be terminated
by the Company without payment) or (ii) the replacement of this Option with other
rights or property selected by the Committee in its sole discretion;
|
|
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(B)
|
|
To provide that this Option be assumed by the successor or survivor
corporation, or a parent or subsidiary thereof, or shall be substituted for by similar
options, rights or awards covering the stock of the successor or survivor corporation,
or a parent or subsidiary thereof, with appropriate adjustments as to the number and
kind of shares and prices;
|
-4-
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(C)
|
|
To make adjustments in the number and type of shares (or other securities or
property) subject to this Option, and/or in the terms and conditions of (including the
grant or exercise price), and the criteria included in, this Option; and
|
|
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(D)
|
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To provide that this Option shall be exercisable or payable or fully vested
with respect to all shares covered hereby, notwithstanding anything to the contrary in
this Agreement.
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9.
Restrictions
. By accepting this grant, Optionee agrees that the shares which
Optionee may acquire by exercising this Option will not be sold or otherwise disposed of in any
manner which would constitute a violation of any applicable federal or state securities laws.
Optionee also agrees that (i) the book entry made (or the certificates, if any are issued)
representing the shares purchased under this Option may bear such restriction, restrictions, legend
or legends as the Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) the Company may refuse to register the transfer of the shares purchased under
this Option on the transfer records of the Company if such proposed transfer would in the opinion
of counsel satisfactory to the Company constitute a violation of any applicable securities law, and
(iii) the Company may give related instructions to its transfer agent, if any, to stop registration
of the transfer of the shares purchased under this Option.
10.
Limitations Upon Transfer
. All rights under this Agreement shall belong to
Optionee alone and may not be transferred, assigned, pledged, or hypothecated by Optionee in any
way (whether by operation of law or otherwise), other than by will or the laws of descent and
distribution and shall not be subject to execution, attachment, or similar process. Upon any
attempt by Optionee to transfer, assign, pledge, hypothecate, or otherwise dispose of such rights
contrary to the provisions in this Agreement, or upon the levy of any attachment or similar process
upon such rights, such rights shall immediately become null and void.
11.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of
any successors to the Company and all persons lawfully claiming under Optionee.
12.
Entire Agreement
.
This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to this Option.
Without limiting the scope of the preceding sentence, all prior understandings and agreements, if
any, among the parties hereto relating to the subject matter hereof are hereby null and void and of
no further force and effect.
13.
Modifications.
Except as provided below, any modification of this Agreement shall
be effective only if it is in writing and signed by both Optionee and an authorized officer of the
Company; provided, however, that the Committee may waive any conditions or rights under, amend any
terms of, or alter this Option, provided no change in this Option shall materially adversely affect
the rights of Optionee without Optionees written consent. Notwithstanding the foregoing, with
respect to any Option intended to qualify as performance-based compensation under Section 162(m) of
the Code, no adjustment other than a payment upon Optionees death, disability or change in
control of the Company, shall be authorized to the extent such adjustment would cause this Option
to fail to so qualify.
-5-
14.
Section 409A of the Code
. Notwithstanding anything in this Agreement to the
contrary, (i) if the Committee determines that the terms of this grant do not, in whole or in part,
satisfy the requirements of Section 409A of the Code, the Committee, in its sole discretion, may
unilaterally modify this Agreement in such manner as it deems appropriate to comply with such
section and any regulations or guidance issued thereunder, and (ii) the Committee may make any
amendment to this Option that it believes necessary to comply with any applicable law, including
without limitation, Section 409A of the Code. This Option is intended to comply with (or be exempt
from) Section 409A of the Code and ambiguous provisions hereof, if any, shall be construed and
interpreted in a manner that is compliant with such intent. This Agreement shall neither cause nor
permit any payment, benefit or consideration to be substituted for a benefit that is payable under
this Agreement if such action would result in the failure of any amount that is subject to Section
409A of the Code to comply with the requirements of Section 409A of the Code, to the extent
applicable.
15.
General Provisions
.
(a)
No Right to Employment or Retention
. The grant of this Option shall not be
construed as giving Optionee the right to be retained in the employ of the Company or any
Affiliate or under any other service contract with the Company or any Affiliate. Further,
the Company or an Affiliate may at any time dismiss Optionee from employment free from any
liability or any claim under this Agreement, unless otherwise expressly provided in this
Agreement or any other agreement or contract between the Company or an Affiliate and
Optionee. If Optionees employer was an Affiliate and ceases to be an Affiliate, Optionee
shall be deemed to have terminated employment for purposes of this Agreement, unless
specifically provided otherwise herein.
(b)
Severability
. If any provision of this Agreement is or becomes or is deemed
to be invalid, illegal, or unenforceable in any jurisdiction or as to any person or this
Option, or would disqualify this Option under any law deemed applicable by the Committee,
such provision shall be construed or deemed amended to conform to the applicable laws, or if
it cannot be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of this Option, such provision shall be stricken as to such
jurisdiction, person or this Option and the remainder of this Option shall remain in full
force and effect.
(c)
Other Laws
. The Committee may refuse to issue or transfer any Shares or
other consideration under this Option, if, acting in its sole discretion, it determines that
the issuance or transfer of such Shares or such other consideration might violate any
applicable law or regulation, and in such event, the Company shall promptly return to the
Optionee (or other holder or beneficiary) any payment Optionee (or such other holder or
beneficiary) tendered to the Company.
(d)
No Trust or Fund Created
. This Option shall not create or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between the Company
or any Affiliate and Optionee or any other person. To the extent that any person acquires a
right to receive payments from the Company or any Affiliate pursuant
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to this Option, such right shall be no greater than the right of any general unsecured
creditor of the Company or any Affiliate.
(e)
No Fractional Shares
. No fraction of a share shall be issuable or issued
upon exercise of this Option.
16.
Governing Law
. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Texas, without regard to conflicts of laws principles thereof.
*****
-7-
Exhibit 4.8
NONSTATUTORY STOCK OPTION AGREEMENT
AGREEMENT
(this
Agreement
) made as of November 10, 2010 (the
Effective Date
), between
APACHE CORPORATION
, a Delaware corporation (the
Company
), and ____________________ (
Optionee
).
WHEREAS, in 2006, Mariner Energy, Inc., a Delaware corporation (
Mariner
), granted Optionee a
nonstatutory stock option to purchase Mariners common stock, par value $.0001 per share (the
Mariner Stock Option
), which replaced the unvested portion of an option granted to Optionee by
Forest Oil Corporation, a New York corporation, pursuant to a Nonstatutory Stock Option Agreement
made as of December 8, 2004 (the
Original Grant Date
) between Forest Oil Corporation and
Optionee;
WHEREAS, as of the Effective Date, the Mariner Stock Option was fully vested as to the number
of shares covered thereby that remain unexercised (the
Remaining Mariner Shares
) at an exercise
price of $11.59 per share (the
Mariner Exercise Price
);
WHEREAS, on the Effective Date, Mariner was merged with and into a wholly-owned subsidiary of
the Company pursuant to an Agreement and Plan of Merger, executed April 14, 2010, as amended by
Amendment No. 1 dated August 2, 2010, among the Company, Apache Deepwater LLC and Mariner (the
Merger Agreement
), and Optionee became an employee of the Company or a subsidiary of the Company;
WHEREAS, Section 1.7(a) of the Merger Agreement provides that the Mariner Stock Option be
converted into an option to acquire __________________ shares of the Companys common stock, par
value $.625 per share (
Stock
), which is equal to the Remaining Mariner Shares multiplied by
0.24347, with any fractional share decreased to the next whole number of shares, at an exercise
price of $47.61 per share, which is equal to the Mariner Exercise Price divided by 0.24347, with
any fraction of a cent increased to the next whole cent; and
WHEREAS, this Agreement effects the conversion of the Mariner Stock Option into an option to
acquire Stock on the terms and subject to the conditions hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1.
Grant of Option
. The Company hereby irrevocably grants to Optionee the right and
option (
Option
) to purchase all or any part of the aggregate number of shares of Stock stated
above on the terms and conditions set forth herein. This Option shall not be treated as an
incentive stock option within the meaning of section 422(b) of the Internal Revenue Code of 1986,
as amended (the
Code
). Reference in this Agreement to any section of the Code shall be deemed to
include any amendments or successor provisions to such section and any regulations under such
section.
2.
Purchase Price
. The purchase price of Stock purchased pursuant to the exercise of
this Option shall be $47.61 per share.
3.
Exercise of Option
. Subject to the earlier expiration of this Option as herein
provided, this Option may be exercised, by contacting Fidelity Stock Plan Services, the Companys
Administrative Agent, at www.netbenefits.com or calling 1-800-544-9354, or delivering a written
notice to the Office of the Secretary of the Company in a form satisfactory to the Committee
(defined below) , at any time and from time to time after the Effective Date. As used in this
Agreement,
Committee
shall mean the Stock Option Plan Committee of the Companys Board of
Directors.
For purposes of the next sentence and subparts (a) through (d) thereof, references to the
Company include the Company or any Affiliate (defined below). This Option may be exercised only
while Optionee remains an employee of the Company and will terminate and cease to be exercisable
upon Optionees termination of employment with the Company, except that:
(a)
Disability
. If Optionees employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code), this Option may be
exercised in full by Optionee (or Optionees estate or the person who acquires this Option
by will or the laws of descent and distribution or otherwise by reason of the death of
Optionee) at any time during the period of one year following such termination.
(b)
Death
. If Optionee dies while in the employ of the Company, Optionees
estate, or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Optionee, may exercise this Option in
full at any time during the period of one year following the date of Optionees death.
(c)
Retirement
. If Optionee retires from the Company, this Option may be
exercised in full by Optionee (or Optionees estate or the person who acquires this Option
by will or the laws of descent and distribution or otherwise by reason of the death of such
Optionee) at any time during the period of one year following such retirement. Solely for
purposes of this Agreement, retirement means that Optionees employment with the Company
has terminated upon or after Optionee has reached the age of (i) 65 years or (ii) 55 years
if Optionee has been continuously employed by Forest or its Affiliates, Mariner or its
Affiliates, and the Company for an aggregate of 15 years.
(d)
Other Termination
. If Optionees employment with the Company terminates
for any reason other than as described in (a), (b) or (c) above, unless such employment is
terminated for cause, this Option may be exercised by Optionee at any time during the period
of three months following such termination, or by Optionees estate (or the person who
acquires this Option by will or the laws of descent and distribution or otherwise by reason
of the death of Optionee) during a period of one year following Optionees death if Optionee
dies during such three-month period. If Optionees employment with the Company is
terminated for cause, then this Option will terminate and cease to be exercisable upon the
date of such termination. As used in this paragraph, the term cause shall mean Optionee
(i) has been convicted of a misdemeanor involving moral turpitude or of a felony, (ii) has
engaged in gross
-2-
negligence or willful misconduct in the performance of the duties of Optionees
employment, (iii) has willfully disregarded any written corporate policies established by
the Company, or (iv) has materially breached any material provision of any written agreement
between Optionee and the Company or any of its Affiliates.
As used in this Agreement,
Affiliate
means any corporation, partnership, limited liability
company or partnership, association, trust or other organization which, directly or indirectly,
controls, is controlled by, or is under common control with, the Company. For purposes of the
preceding sentence, control (including, with correlative meanings, the terms controlled by and
under common control with), as used with respect to any entity or organization, shall mean the
possession, directly or indirectly, of the power (i) to vote more than 50% of the securities having
ordinary voting power for the election of directors of the controlled entity or organization, or
(ii) to direct or cause the direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract or otherwise.
This Option shall not be exercisable in any event after the expiration of ten years from the
Original Grant Date. The purchase price of shares as to which this Option is exercised shall be
paid in full at the time of exercise (a) in cash (including check, bank draft or money order
payable to the order of the Company), (b) by certification or attestation to Fidelity Stock Plan
Services or to the Office of the Secretary of the Company of a number of shares then owned by the
Optionee and held by the Optionee for a period of at least six months prior to the date of such
delivery having an aggregate Fair Market Value at the exercise date equal to the aggregate purchase
price., (c) if the Stock is readily tradable on a national securities market, through a
cashless-broker exercise in accordance with a Company established policy or program for the same,
or (d) any combination of the foregoing. No fraction of a share of Stock shall be issued by the
Company upon exercise of an Option or accepted by the Company in payment of the exercise price
thereof; rather, Optionee shall provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Stock. No cash in lieu of fractional shares
shall be paid. Unless and until the shares acquirable upon exercise of this Option have been
represented by a book-entry statement or a certificate(s) delivered by the Company or its transfer
agent to Optionee, Optionee (or the person permitted to exercise this Option in the event of
Optionees death) shall not be or have any of the rights or privileges of a stockholder of the
Company with respect to such shares.
As used in this Agreement,
Fair Market Value
shall mean, as of any applicable date, the per
share closing price of the Stock as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for a particular date or, if the Stock is not so listed on such date,
as reported on NASDAQ or on such other exchange or electronic trading system which, on the date in
question, reports the largest number of traded shares of Stock,
provided
,
however
,
that if on the date Fair Market Value is to be determined there are no transactions in the Stock,
Fair Market Value shall be determined as of the immediately preceding date on which there were
transactions in the Stock;
provided
further
,
however
, that if the foregoing
provisions are not applicable, the fair market value of a share of the Stock as determined by the
Committee by the reasonable application of such reasonable valuation method, consistently applied,
as the Committee deems appropriate.
-3-
4.
Withholding of Tax
. The Company shall have the right to deduct in connection with
this Option any taxes required by law to be withheld and to require any payments required to enable
it to satisfy its withholding obligations. To the extent that the exercise of this Option or the
disposition of shares of Stock acquired by exercise of this Option results in compensation income
or wages to Optionee for federal, state or local tax purposes, Optionee shall deliver to the
Company at the time of such exercise or disposition such amount of money as the Company may require
to meet its minimum obligation under applicable tax laws or regulations. Optionee may elect with
respect to this Option to surrender or authorize the Company to withhold shares of Stock (valued at
their Fair Market Value on the date of surrender or withholding of such shares) to satisfy any tax
required to be withheld upon exercise of this Option. An election pursuant to the preceding
sentence shall be referred to herein as a
Stock Withholding Election
. All Stock Withholding
Elections shall be made by written notice to Fidelity Stock Plan Services or to the Companys
Corporate Secretary. If Optionee is not a Section 16 Person (as hereinafter defined), Optionee may
revoke such election by delivering to the Companys Corporate Secretary (or such other designated
officer or employee) written notice of such revocation prior to the date such election is
implemented through actual surrender or withholding of shares of Stock (the
Withholding Date
).
If Optionee is a Section 16 Person, the Stock Withholding Election must:
(a) be irrevocable and made six months prior to the Withholding Date; or
(b) (i) be approved by the Committee either before or after such election is made, (ii) be
made, and the Withholding Date occur, during a period beginning on the third business day following
the date of release by the Company for publication of quarterly and annual summary statements of
sales and earnings and ending on the twelfth business day following such date, and (iii) be made
more than six months after the Effective Date; or
(c) be made in connection with (i) a delivery to the Company of shares of Stock owned by
Optionee prior to the exercise of this Option to satisfy the portion of the tax required to be
withheld with respect to those shares of Stock received by Optionee upon exercise of this Option
for which payment of the purchase price was made to the Company in shares of Stock owned by
Optionee prior to the exercise of this Option pursuant to Paragraph 3 hereof and (ii) the exercise
of this Option more than six months after the Effective Date.
If Optionee fails to pay the required amount to the Company or fails to make a Stock
Withholding Election, the Company is authorized to withhold from any cash remuneration (or, if
Optionee is not a Section 16 Person, Stock remuneration, including withholding any shares of Stock
distributable to Optionee upon exercise of this Option) then or thereafter payable to Optionee any
tax required to be withheld by reason of the exercise of this Option or the disposition of shares
of Stock acquired by exercise of this Option. For purposes of this Agreement, the term
Section 16
Person
means an officer, director or affiliate of the Company or a former officer, director or
affiliate of the Company who is subject to Section 16 of the Securities Exchange Act of 1934, as
amended (
1934 Act
).
5.
Status of Stock
. The Company shall not be obligated to issue any Stock pursuant to
this Option at any time when the shares covered hereby have not been registered under the
Securities Act of 1933, as amended (the
1933 Act
), and such other state and federal laws, rules
and regulations as the Committee deems applicable and, in the opinion of legal counsel for the
-4-
Company, there is no exemption from the registration requirements of such laws, rules and
regulations available for the issuance and sale of such shares. The Company intends to register
for issuance under the 1933 Act the shares of Stock acquirable upon exercise of this Option, and to
keep such registration effective throughout the period this Option is exercisable. In the absence
of such effective registration or an available exemption from registration under the 1933 Act,
issuance of shares of Stock acquirable upon exercise of this Option will be delayed until
registration of such shares is effective or an exemption from registration under the 1933 Act is
available. The Company intends to use its reasonable efforts to ensure that no such delay will
occur. In the event exemption from registration under the 1933 Act is available upon an exercise
of this Option, Optionee (or the person permitted to exercise this Option in the event of
Optionees death or incapacity), if requested by the Company to do so, will execute and deliver to
the Company in writing an agreement containing such provisions as the Company may require to assure
compliance with applicable securities laws.
Optionee agrees that the shares of Stock which Optionee may acquire by exercising this Option
will not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. Optionee also agrees that (i) the certificates
representing the shares of Stock purchased under this Option may bear such legend or legends as the
Committee deems appropriate in order to assure compliance with applicable securities laws, (ii) the
Company may refuse to register the transfer of the shares of Stock purchased under this Option on
the stock transfer records of the Company if such proposed transfer would in the opinion of counsel
satisfactory to the Company constitute a violation of any applicable securities law, and (iii) the
Company may give related instructions to its transfer agent, if any, to stop registration of the
transfer of the shares of Stock purchased under this Option.
6.
Recapitalization or Reorganization
(a)
No Effect on Right or Power
. The existence of this Option shall not affect
in any way the right or power of the Board or the stockholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in the Companys
or any Affiliates capital structure or its business, any merger or consolidation of the
Company or any Affiliate, any issue of debt or equity securities ahead of or affecting the
Stock or the rights thereof, the dissolution or liquidation of the Company or any Affiliate
or any sale, lease, exchange or other disposition of all or any part of its assets or
business or any other corporate act or proceeding.
(b)
Subdivision or Consolidation of Shares; Stock Dividends
. The shares with
respect to which this Option may be exercised are shares of Stock as presently constituted,
but if, and whenever, prior to the expiration of this Option, the Company shall effect a
subdivision or consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock with respect
to which this Option may thereafter be exercised (i) in the event of an increase in the
number of outstanding shares shall be proportionately increased, and the purchase price per
share shall be proportionately reduced, and (ii) in the event of a reduction in the number
of outstanding shares shall be proportionately reduced, and the
-5-
purchase price per share shall be proportionately increased. Any fractional share
resulting from such adjustment shall be rounded up to the next whole share.
(c)
Recapitalizations and Corporate Changes
. If the Company recapitalizes,
reclassifies its capital stock, or otherwise changes its capital structure (a
recapitalization), the number and class of shares of Stock in respect of which this Option
has not been exercised shall be adjusted so that this Option shall thereafter cover the
number and class of shares of stock and securities to which Optionee would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, Optionee had been the holder of record of the number of shares of Stock
then covered by this Option. If (i) the Company shall not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of an entity), (ii) the Company
sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of
its assets to any other person or entity, (iii) the Company is to be dissolved and
liquidated, (iv) any person or entity, including a group as contemplated by Section
13(d)(3) of the 1934 Act, acquires or gains ownership or control (including, without
limitation, power to vote) of more than 40% of the outstanding shares of the Companys
voting stock (based upon voting power), or (v) as a result of or in connection with a
contested election of Directors (defined below), the persons who were Directors of the
Company before such election shall cease to constitute a majority of the Board (each such
event is referred to herein as a
Corporate Change
), no later than (x) 10 days after the
approval by the stockholders of the Company of such merger, consolidation, reorganization,
sale, lease or exchange of assets or dissolution or such election of Directors or (y) 30
days after a Corporate Change of the type described in clause (iv), the Committee, acting in
its sole discretion without the consent or approval of Optionee, shall effect one or more of
the following alternatives in an equitable and appropriate manner to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available under this
Option, which alternatives may vary among individual holders of options or other derivative
or other securities of the Company and which may vary among options or other derivative or
other securities of the Company held by Optionee: (1) accelerate the time at which this
Option may be exercised so that it may be exercised in full for a limited period of time on
or before a specified date (before or after such Corporate Change) fixed by the Committee,
after which specified date, this Option, to the extent theretofore not exercised, and all
rights of Optionee in respect thereof shall terminate, (2) require the mandatory surrender
to the Company by Optionee of this Option (irrespective of whether it then is exercisable)
as of a date, before or after such Corporate Change, specified by the Committee, in which
event the Committee shall thereupon cancel this Option and the Company shall pay (or cause
to be paid) to Optionee an amount of cash per share equal to the excess, if any, of the
Change of Control Value (as calculated in accordance with subparagraph (d) below) of the
shares subject to this Option over the exercise price under this Option for such shares, or
(3) make such adjustments to this Option as the Committee deems appropriate to reflect such
Corporate Change (provided, however, that the Committee may determine in its sole discretion
that no adjustment is necessary to this Option), including, without limitation, adjusting
this Option to provide that the number and class of shares of Stock covered by this Option
shall be adjusted so that this Option shall thereafter cover securities of the surviving or
acquiring corporation or other property (including, without limitation, cash) as
-6-
determined by the Committee in its sole discretion.
Director
means an individual elected to the Board by the
stockholders of the Company or by the Board under applicable corporate law who is serving on
the Board on the Effective Date or is elected to the Board after such date.
(d)
Change of Control Value
. For the purposes of clause (2) in Subparagraph
(c) above, the
Change of Control Value
shall equal the amount determined in clause (i),
(ii) or (iii), whichever is applicable, as follows: (i) the per share price offered to
stockholders of the Company in any such merger, consolidation, sale of assets or dissolution
transaction, (ii) the price per share offered to stockholders of the Company in any tender
offer or exchange offer whereby a Corporate Change takes place, or (iii) if such Corporate
Change occurs other than pursuant to a tender or exchange offer, the fair market value per
share of the shares into which such Options being surrendered are exercisable, as determined
by the Committee as of the date determined by the Committee to be the date of cancellation
and surrender of such Options. In the event that the consideration offered to stockholders
of the Company in any transaction described in this Subparagraph (d) or Subparagraph (c)
above consists of anything other than cash, the Committee shall determine the fair cash
equivalent of the portion of the consideration offered which is other than cash.
(e)
Other Changes in the Stock
. In the event of changes in the outstanding
Stock by reason of recapitalizations, reorganizations, mergers, consolidations,
combinations, split-ups, split-offs, spin-offs, exchanges or other relevant changes in
capitalization or distributions to the holders of Stock occurring after the Effective Date
and not otherwise provided for by this Paragraph 6, this Option shall be subject to
adjustment by the Committee at its sole discretion as to the number and price of shares of
Stock or other consideration subject to this Option. In the event of any such change in the
outstanding Stock or distribution to the holders of Stock, the aggregate number of shares
available under this Option may be appropriately adjusted by the Committee, whose
determination shall be conclusive.
(f)
Stockholder Action
. Any adjustment provided for in the above Subparagraphs
shall be subject to any required stockholder action.
(g)
No Adjustments unless Otherwise Provided
. Except as hereinbefore expressly
provided, the issuance by the Company of shares of stock of any class or securities
convertible into shares of stock of any class, for cash, property, labor or services, upon
direct sale, upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares or other
securities, and in any case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of shares of Stock
subject to this Option or the purchase price per share.
7.
Employment Relationship
. For purposes of this Agreement, Optionee shall be
considered to be in the employment of the Company as long as Optionee remains an employee of either
the Company, an Affiliate, or a corporation or a parent or subsidiary of such corporation assuming
or substituting a new option for this Option. Without limiting the scope of the
-7-
preceding sentence, it is expressly provided that Optionee shall be considered to have terminated
employment with the Company at the time of the termination of the Affiliate status of the
entity or other organization that employs Optionee and the Company. Nothing contained in this
Option shall (i) confer upon Optionee any right with respect to continuation of employment with the
Company or any Affiliate or (ii) interfere in any way with the right of the Company or any
Affiliate to terminate his or her employment at any time. Any question as to whether and when
there has been a termination of such employment, and the cause of such termination, shall be
determined by the Committee and its determination shall be final.
8.
No Restriction on Corporate Action
. Nothing contained herein shall be construed to
prevent the Company or any Affiliate from taking any action which is deemed by the Company or such
Affiliate to be appropriate or in its best interest, whether or not such action would have an
adverse effect on this Option. Neither Optionee nor any other person shall have any claim against
the Company or any Affiliate as a result of any such action.
9.
Transfer Restrictions and Binding Effect
. This Option and Optionees rights and
duties under this Agreement shall not be transferable or delegable otherwise than (i) by will or
the laws of descent and distribution, (ii) pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder, or (iii) with the consent of the Committee. This Agreement shall be
binding upon and inure to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
10.
Entire Agreement
.
This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof; provided, that the terms of this Agreement shall not
modify and shall be subject to the terms and conditions of any employment or severance agreement
between the Company (or an Affiliate) and the Optionee in effect on the date a determination is
made under this Agreement. Without limiting the scope of the preceding sentence, (i) all prior
understandings and agreements, if any, among the parties hereto relating to the subject matter
hereof are hereby null and void and of no further force and effect, and (ii) this Agreement and
this Option replace the Mariner Stock Option, and Optionee shall have no right or claim against the
Company or its Affiliates in respect of the Mariner Stock Option. Any modification of this
Agreement shall be effective only if it is in writing and signed by both Optionee and an authorized
officer of the Company. Optionee acknowledges that the terms and conditions of this Option and
Agreement, as may be amended from time to time, may not be identical to the terms and conditions of
other options or derivative or other securities of the Company outstanding from time to time.
11.
Governing Law
. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof,
and applicable federal law.
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