AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 25, 2005
REGISTRATION NO. 333 - __________
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UNITED STATES
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 (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
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 CORPORATION
2005 SHARE APPRECIATION PLAN
(FULL TITLE OF THE PLAN)
P. ANTHONY LANNIE, SENIOR VICE PRESIDENT AND 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
=========================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registration
Registered (1) Registered (2) Share (3) Price (3) Fee (3)
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Common Stock, par
value $0.625 per share,
and associated Preferred
Stock Purchase Rights (4) 3,500,000 shares $55.56 $194,460,000 $22,888
==========================================================================================================================
(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) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers any additional shares of Common
Stock which become issuable pursuant to the employee benefit plan
described herein by reason of any stock dividend, stock split,
recapitalization, or other similar transaction.
(3) 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 May 23, 2005.
(4) 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.
INTRODUCTION
This registration statement on Form S-8 is being filed by the registrant, Apache
Corporation ("Apache" or the "Registrant"), for the purpose of registering
3,500,000 shares of Apache common stock, par value $0.625 per share ("Apache
Common Stock"), for issuance under the terms of the Apache Corporation's 2005
Share Appreciation Plan. Such 3,500,000 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 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:
(1) Annual Report on Form 10-K for the year ended December 31, 2004,
filed with the Commission on March 16, 2005.
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 2005,
filed with the Commission on May 10, 2005.
(3) 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 $0.625
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, 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 2.31 shares of
Apache Common Stock issued in order to provide for possible exercises of Rights
(as defined below) under Apache's existing Rights Agreement.
II-1
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 and quoted on the NASDAQ National
Market. 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,
and (ii) 100,000 shares have been designated 5.68% Cumulative Preferred Stock,
Series B ("Series B 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 2.31 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 Apache Common Stock issuable under the terms of the Apache
Corporation 2005 Share Appreciation Plan.
II-2
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").
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.
II-3
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 3.1 to Apache's Annual Report on Form 10-K for the year ended December 31, 2003, as
filed with the Commission on March 12, 2004, Commission File No. 001-04300)
4.2 Bylaws of Apache Corporation, as amended February 5, 2004 (incorporated by reference to Exhibit
3.2 to Apache's Annual Report on Form 10-K for the year ended December 31, 2003, as filed with
the Commission on March 12, 2004, Commission File No. 001-04300)
4.3 Form of Certificate for Registrant's Common Stock (incorporated by reference to Exhibit 4.1 to
Apache's Quarterly Report on Form 10-Q for the quarter ended March 31, 2004, as filed with the
Commission on May 10, 2004, Commission File No. 001-04300)
4.4 Rights Agreement, dated January 31, 1996, between Apache Corporation and Norwest Bank
Minnesota, N.A., as rights agent (incorporated by reference to Exhibit (a) to Apache's
Registration Statement on Form 8-A, as filed with the Commission on January 24, 1996,
Commission File No. 001-04300)
4.5 Apache Corporation 2005 Share Appreciation Plan (incorporated by reference to Appendix C to the
Proxy Statement relating to Apache's 2005 annual meeting of stockholders, as filed with the
Commission on March 28, 2005, Commission File No. 001-04300)
*5.1 Opinion of Andrews Kurth LLP regarding legality of securities being registered
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ryder Scott Company, L.P.
*23.3 Consent of Andrews Kurth LLP (included in Exhibit 5.1)
*24.1 Power of Attorney (included on signature page)
----------------
*Filed herewith
II-4
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-5
(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.
II-6
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: May 25, 2005 By: /s/ G. Steven Farris
--------------------------------
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
Jeffrey B. King, 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)
May 25, 2005
/s/ Roger B. Plank Executive Vice President and
------------------------ Chief Financial Officer
Roger B. Plank (Principal Financial Officer)
May 25, 2005
/s/ Thomas L. Mitchell Vice President and
------------------------ Controller
Thomas L. Mitchell (Principal Accounting Officer)
May 25, 2005
SIGNATURE TITLE DATE
------------------------- --------------------------- ------------
/s/ Raymond Plank Director and
------------------------- Chairman of the Board May 25, 2005
Raymond Plank
/s/ Frederick M. Bohen Director
-------------------------
Frederick M. Bohen May 25, 2005
/s/ Randolph M. Ferlic Director
-------------------------
Randolph M. Ferlic May 25, 2005
/s/ Eugene C. Fiedorek Director
-------------------------
Eugene C. Fiedorek May 25, 2005
/s/ A. D. Frazier, Jr. Director
-------------------------
A. D. Frazier, Jr. May 25, 2005
/s/ Patricia Albjerg Graham Director
-------------------------
Patricia Albjerg Graham May 25, 2005
/s/ John A. Kocur Director
-------------------------
John A. Kocur May 25, 2005
/s/ George D. Lawrence Director
-------------------------
George D. Lawrence May 25, 2005
/s/ F. H. Merelli Director
-------------------------
F. H. Merelli May 25, 2005
/s/ Rodman D. Patton Director
-------------------------
Rodman D. Patton May 25, 2005
/s/ Charles J. Pitman Director
-------------------------
Charles J. Pitman May 25, 2005
/s/ Jay A. Precourt Director
-------------------------
Jay A. Precourt May 25, 2005
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 3.1 to Apache's Annual Report on Form 10-K for the year ended December 31, 2003, as
filed with the Commission on March 12, 2004, Commission File No. 001-04300)
4.2 Bylaws of Apache Corporation, as amended February 5, 2004 (incorporated by reference to Exhibit
3.2 to Apache's Annual Report on Form 10-K for the year ended December 31, 2003, as filed with
the Commission on March 12, 2004, Commission File No. 001-04300)
4.3 Form of Certificate for Registrant's Common Stock (incorporated by reference to Exhibit 4.1 to
Apache's Quarterly Report on Form 10-Q for the quarter ended March 31, 2004, as filed with the
Commission on May 10, 2004, Commission File No. 001-04300)
4.4 Rights Agreement, dated January 31, 1996, between Apache Corporation and Norwest Bank
Minnesota, N.A., as rights agent (incorporated by reference to Exhibit (a) to Apache's
Registration Statement on Form 8-A, as filed with the Commission on January 24, 1996,
Commission File No. 001-04300)
4.5 Apache Corporation 2005 Share Appreciation Plan (incorporated by reference to Appendix C to the
Proxy Statement relating to Apache's 2005 annual meeting of stockholders, as filed with the
Commission on March 28, 2005, Commission File No. 001-04300)
*5.1 Opinion of Andrews Kurth LLP regarding legality of securities being registered
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ryder Scott Company, L.P.
*23.3 Consent of Andrews Kurth LLP (included in Exhibit 5.1)
*24.1 Power of Attorney (included on signature page)
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*Filed herewith