AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 2003
REGISTRATION NO. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APACHE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE NO. 41-0747868
(STATE OR OTHER JURISDICTION OF INCORPORATION (I.R.S. EMPLOYER IDENTIFICATION
OR ORGANIZATION) NUMBER)
2000 POST OAK BOULEVARD, SUITE 100, HOUSTON, TEXAS 77056-4400
(713) 296-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
APACHE UK SHARE INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
ERIC L. HARRY, VICE PRESIDENT AND ASSOCIATE GENERAL COUNSEL
APACHE CORPORATION
2000 POST OAK BOULEVARD, SUITE 100, HOUSTON, TEXAS 77056-4400
(713) 296-6000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registration
Registered (1) Registered Share (2) Price (2) Fee (2)
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Common Stock, par
value $1.25 per share, and
associated Preferred Stock
Purchase Rights (3) 100,000 shares $64.43 $6,443,000 $522
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(c) and 457(h), the offering price and registration fee
are computed on the basis of the average of the high and low prices of the
Common Stock, as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for June 16, 2003.
(3) Preferred Stock Purchase Rights are evidenced by certificates for shares of
the Common Stock and automatically trade with the Common Stock. Value
attributable to such Preferred Stock Purchase Rights, if any, is reflected
in the market price of the Common Stock.
This registration statement on Form S-8 is being filed by the registrant, Apache
Corporation ("Apache"), for the purpose of registering 100,000 shares of Apache
Common Stock, par value $1.25 per share ("Apache Common Stock"), for issuance
under the terms of the Apache UK Share Incentive Plan, and referred to herein as
the Plan. Such 100,000 shares of Apache Common Stock have been reserved and
authorized for issuance from Apache's authorized and unissued capital stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Apache Corporation (the "Registrant" or
"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. 1-4300, are incorporated by reference into this
Registration Statement:
(1) Annual Report on Form 10-K for the year ended December 31,
2002.
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.
(3) Current Reports on Form 8-K, filed January 13, 2003, January
16, 2003, April 17, 2003 (as amended June 16, 2003), and May
16, 2003.
(4) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which
deregisters all securities 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 filing of
such documents.
The descriptions set forth below of the common stock of Apache, par value $1.25
per share ("Apache Common Stock"), the preferred stock and the Rights (as
defined below) constitute brief summaries of certain provisions of Apache's
Restated Certificate of Incorporation, Apache's Bylaws and the Rights Agreement
between Apache and Wells Fargo Bank Minnesota, N. A. ("Wells Fargo"), formerly
Norwest Bank Minnesota, N.A., and are qualified in their entirety by reference
to the relevant provisions of such documents, all of which are listed under Item
8 as exhibits to this Registration Statement and are incorporated herein by
reference.
APACHE COMMON STOCK
All outstanding shares of Apache Common Stock are fully paid and
nonassessable, and all holders of Apache Common Stock have full voting rights
and are entitled to one vote for each share held of record on all matters
submitted to a vote of stockholders. The Board of Directors of Apache is
classified into three groups of approximately equal size, one-third elected each
year. Stockholders do not have the right to cumulate votes in the election of
directors and have no preemptive or subscription rights. Apache Common Stock is
neither redeemable nor convertible, and there are no sinking fund provisions
relating to such stock.
Subject to preferences that may be applicable to any shares of
preferred stock outstanding at the time, holders of Apache Common Stock are
entitled to dividends when and as declared by the Board of Directors from funds
legally available therefor and are entitled, in the event of liquidation, to
share ratably in all assets remaining after payment of liabilities.
Apache's current policy is to reserve one ten-thousandth (1/10,000) of
a share of Series A Preferred Stock (as defined below) for each 1.155 shares of
Apache Common Stock issued in order to provide for possible exercises of Rights
(as defined below) under Apache's existing Rights Agreement.
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The currently outstanding Apache Common Stock and the Rights (as
defined below) under Apache's existing Rights Agreement are listed on the New
York Stock Exchange and the Chicago Stock Exchange. Wells Fargo is the transfer
agent and registrar for Apache Common Stock.
Apache typically mails its annual report to stockholders within 120
days after the end of its fiscal year. Notices of stockholder meetings are
mailed to record holders of Apache Common Stock at their addresses shown on the
books of the transfer agent and registrar.
PREFERRED STOCK
Apache has five million shares of no par preferred stock authorized, of
which (i) 25,000 shares have been designated Series A Junior Participating
Preferred Stock ("Series A Preferred Stock") and authorized for issuance
pursuant to the Rights (as defined below) that trade with Apache Common Stock,
(ii) 100,000 shares have been designated 5.68% Cumulative Preferred Stock,
Series B ("Series B Preferred Stock"), and (iii) 140,000 shares have been
designated Automatically Convertible Equity Securities, Conversion Preferred
Stock, Series C ("Series C Preferred Stock"). A total of 100,000 shares of
Series B Preferred Stock are currently outstanding, and shares of Series A
Preferred Stock have been reserved for issuance in accordance with the Rights
Agreement relating to the Rights. Additional shares of preferred stock may be
authorized for issuance and issued by the Board of Directors with such voting
powers and in such classes and series, and with such designations, preferences,
and relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof (including conversion into or exchange for
Apache Common Stock or other securities of Apache or its subsidiaries), as may
be stated and expressed in the resolution or resolutions providing for the
issuance of such preferred stock adopted by the Board of Directors providing for
the issuance of such preferred stock.
RIGHTS
In December 1995, Apache declared a dividend of one right (a "Right")
for each 1.155 shares (adjusted for the ten and five percent stock dividends) of
Apache Common Stock outstanding on January 31, 1996. Each full Right entitles
the registered holder to purchase from Apache one ten-thousandth (1/10,000) of a
share of Series A Preferred Stock at a price of $100 per one ten-thousandth of a
share, subject to adjustment. The Rights are exercisable ten calendar days
following a public announcement that certain persons or groups have acquired 20
percent or more of the outstanding shares of Apache Common Stock or ten business
days following commencement of an offer for 30 percent or more of the
outstanding shares of Apache Common Stock. Unless and until the Rights become
exercisable, they will be transferred with and only with the shares of Apache
Common Stock.
In addition, if a person or group becomes the beneficial owner of 20
percent or more of the outstanding shares of Apache Common Stock (a "flip in
event"), each Right will become exercisable for shares of Apache Common Stock at
50 percent of the then market price of Apache Common Stock. If a 20-percent
stockholder of Apache acquires Apache, by merger or otherwise, in a transaction
where Apache does not survive or in which Apache Common Stock is changed or
exchanged (a "flip over event"), the Rights become exercisable for shares of the
common stock of the corporation acquiring Apache at 50 percent of the then
market price of Apache Common Stock. Any Rights that are or were beneficially
owned by a person who has acquired 20 percent or more of the outstanding shares
of Apache Common Stock, and who engages in certain transactions or realizes the
benefits of certain transactions with Apache, will become void. If an offer to
acquire all of the outstanding shares of Apache Common Stock is determined to be
fair by Apache's board of directors, the transaction will not trigger a flip in
event or a flip over event. Apache may also redeem the Rights at $.01 per Right
at any time until ten business days after public announcement of a flip in
event. The Rights will expire on January 31, 2006, unless earlier redeemed by
Apache. Unless the Rights have been previously redeemed, all shares of Apache
Common Stock issued by Apache after January 31, 1996, will include Rights,
including the
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Apache Common Stock issuable under the terms of the Apache UK Share Incentive
Plan.
CONSENT OF ARTHUR ANDERSEN LLP
The consolidated financial statements of Apache and its subsidiaries as
of and for the year ended December 31, 2001 incorporated by reference in this
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports. Arthur Andersen LLP has not consented to the inclusion of their
report in this registration statement, and Apache has dispensed with the
requirement to file their consent in reliance upon Rule 437a of the Securities
Act of 1933. Because Arthur Andersen LLP has not consented to the inclusion of
their report, you will not be able to recover against Arthur Andersen LLP under
Section 11 of the Securities Act of 1933 for any untrue statements of a material
fact contained in the financial statements audited by Arthur Andersen LLP or any
omissions to state a material fact required to be stated therein.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), 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 the person is or was 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 the person in connection with the suit or proceeding if the 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, with respect to any criminal action or
proceeding, had no reason to believe his conduct was unlawful. Similar indemnity
is authorized against expenses (including attorneys' fees) actually and
reasonably incurred in defense or settlement of any pending, completed or
threatened action or suit 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) the person shall not have been adjudged liable to the
corporation. The 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 DGCL 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 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 the officers and directors of Apache and its
subsidiaries against certain liabilities for actions taken in their capacities,
including liabilities under the Securities Act of 1933, as amended (the
"Securities Act").
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Article VII of Apache's Bylaws provides, in substance, that directors,
officers, employees and agents of Apache shall be indemnified to the extent
permitted by Section 145 of the DGCL. Additionally, the Seventeenth Article of
Apache's Restated Certificate of Incorporation eliminates in certain
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 (i) for a breach of a director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions by a director not in
good faith; (iii) for acts or omissions by a director involving intentional
misconduct or a knowing violation of the law; (iv) under Section 174 of the DGCL
(relating to the declaration of dividends and purchase or redemption of shares
in violation of the DGCL); and (v) for transactions from which the director
derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed herewith unless otherwise indicated:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation of Apache Corporation (incorporated by reference to Exhibit
99.1 to Apache's Current Report on Form 8-K, dated December 17, 1999, Commission File No. 1-4300)
4.2 Bylaws of Apache Corporation, as amended May 2, 2002 (incorporated by reference to Exhibit 3.1
to Apache's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, Commission
File No. 1-4300)
4.3 Form of Registrant's Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
Apache's Annual Report on Form 10-K for the year ended December 31, 1995, Commission File
No. 1-4300)
4.4 Rights Agreement, dated January 31, 1996, between Apache and Norwest Bank Minnesota, N.A.,
rights agent (incorporated by reference to Exhibit (a) to Apache's Registration Statement on Form
8-A, dated January 24, 1996, Commission File No. 1-4300)
*4.5 Trust Deed and Rules of the Apache UK Share Incentive Plan, dated April 2003
*4.6 Apache UK Share Incentive Plan Employee Booklet
*4.7 Apache UK Share Incentive Plan Introductory Share Announcement Letter
*5.1 Opinion of legal counsel regarding legality of securities being registered
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ryder Scott Company Petroleum Engineers
*23.3 Consent of legal counsel included in Exhibit 5.1
*24.1 Power of Attorney included as part of the signature pages of this Registration Statement
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*Filed herewith
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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 the Registrant 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 the Registrant's 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 plan's 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.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this registration statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-6
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
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 the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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, the Registrant 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.
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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.
APACHE CORPORATION
Date: June 18, 2003 By: /s/ G. Steven Farris
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G. Steven Farris,
President, Chief Executive Officer,
and Chief Operating Officer
POWER OF ATTORNEY
The undersigned directors and officers of Apache Corporation do hereby
constitute and appoint G. Steven Farris, Roger B. Plank, P. Anthony Lannie, and
Eric L. Harry, and each of them, with full power of substitution, our true and
lawful attorneys-in-fact to sign and execute, on behalf of the undersigned, any
and all amendments (including post-effective amendments) to this Registration
Statement; and each of the undersigned does hereby ratify and confirm all that
said attorneys-in-fact shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons, in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ G. Steven Farris Director;
--------------------------- President, Chief Executive Officer,
G. Steven Farris and Chief Operating Officer
(Principal Executive Officer) June 18, 2003
/s/ Roger B. Plank Executive Vice President and
--------------------------- Chief Financial Officer
Roger B. Plank (Principal Financial Officer) June 18, 2003
/s/ Thomas L. Mitchell Vice President and
--------------------------- Controller
Thomas L. Mitchell (Principal Accounting Officer) June 18, 2003
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Raymond Plank Director and
--------------------------- Chairman of the Board June 18, 2003
Raymond Plank
/s/ Frederick M. Bohen Director
---------------------------
Frederick M. Bohen June 18, 2003
/s/ Randolph M. Ferlic Director
---------------------------
Randolph M. Ferlic June 18, 2003
/s/ Eugene C. Fiedorek Director
---------------------------
Eugene C. Fiedorek June 18, 2003
/s/ A. D. Frazier, Jr. Director
---------------------------
A. D. Frazier, Jr. June 18, 2003
/s/ Patricia Albjerg Graham Director
---------------------------
Patricia Albjerg Graham June 18, 2003
/s/ John A. Kocur Director
---------------------------
John A. Kocur June 18, 2003
/s/ George D. Lawrence Director
---------------------------
George D. Lawrence June 18, 2003
/s/ F. H. Merelli Director
---------------------------
F. H. Merelli June 18, 2003
/s/ Rodman D. Patton Director
---------------------------
Rodman D. Patton June 18, 2003
/s/ Charles J. Pitman Director
---------------------------
Charles J. Pitman June 18, 2003
/s/ Jay A. Precourt Director
---------------------------
Jay A. Precourt June 18, 2003
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation of Apache Corporation (incorporated by reference to
Exhibit 99.1 to Apache's Current Report on Form 8-K, dated December 17, 1999, Commission File
No. 1-4300)
4.2 Bylaws of Apache Corporation, as amended May 2, 2002 (incorporated by reference to Exhibit 3.1 to
Apache's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, Commission File
No. 1-4300)
4.3 Form of Registrant's Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Apache's
Annual Report on Form 10-K for the year ended December 31, 1995, Commission File No. 1-4300)
4.4 Rights Agreement, dated January 31, 1996, between Apache and Norwest Bank Minnesota, N.A., rights
agent (incorporated by reference to Exhibit (a) to Apache's Registration Statement on Form 8-A, dated
January 24, 1996, Commission File No. 1-4300)
*4.5 Trust Deed and Rules of the Apache UK Share Incentive Plan, dated April 2003
*4.6 Apache UK Share Incentive Plan Employee Booklet
*4.7 Apache UK Share Incentive Plan Introductory Share Announcement Letter
*5.1 Opinion of legal counsel regarding legality of securities being registered
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ryder Scott Company Petroleum Engineers
*23.3 Consent of legal counsel included in Exhibit 5.1
*24.1 Power of Attorney included as part of the signature pages of this Registration Statement
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*Filed herewith