sv3asr
As filed with the Securities and
Exchange Commission on December 2, 2008
Registration
No. 333-
Registration
No. 333- -01
Registration
No. 333- -02
Registration
No. 333- -03
Registration
No. 333- -04
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
APACHE CORPORATION
(and the subsidiaries identified
in footnote (*) below)
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation or organization)
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41-0747868
(I.R.S. Employer
Identification Number)
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One Post Oak Central
2000 Post Oak Boulevard, Suite 100
Houston, Texas
77056-4400
(713) 296-6000
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P. Anthony Lannie
Senior Vice President and General Counsel
Apache Corporation
One Post Oak Central
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
(713) 296-6000
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(Address, including zip code,
and telephone number
including area code, of registrants principal executive
offices)
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(Name, address, including zip
code, and telephone number,
including area code, of agent for
service)
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Copies to:
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Cheri L. Peper
Corporate Secretary
Apache Corporation
One Post Oak Central
2000 Post Oak Boulevard, Suite 100
Houston, Texas
77056-4400
(713) 296-6000
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John B. Clutterbuck
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
(713) 220-4200
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION OF REGISTRATION
FEE
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Proposed maximum
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Proposed maximum
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Title of each class of
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aggregate offering
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aggregate offering
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Amount of
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securities to be registered
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Amount to be registered
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price per unit
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price
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registration fee(1)
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Senior Debt Securities
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Subordinated Debt Securities
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Guarantees of Debt Securities(2)
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Common Stock Purchase Contracts
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Common Stock Purchase Units
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Preferred Stock
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Common Stock and Related Rights
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Depositary Shares(3)
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(1)
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An indeterminate aggregate initial
offering price or principal amount or number of the securities
of each identified class is being registered as may from time to
time be issued at indeterminate prices or upon conversion,
exchange or exercise of securities registered hereunder to the
extent any such securities are, by their terms, convertible
into, or exchangeable or exercisable for, such securities.
Separate consideration may or may not be received for securities
that are issuable on exercise, conversion or exchange of other
securities. Any securities registered hereunder may be sold
separately or as units with other securities registered
hereunder. In accordance with Rules 456(b) and 457(r) under
the Securities Act of 1933, as amended, the registrant is
deferring payment of all of the registration fee.
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(2)
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Apache Corporation may guarantee
the obligations under some or all of the debt securities. No
separate consideration will be paid in respect of any such
guarantees. Pursuant to Rule 457(n) under the Securities
Act of 1933, as amended, no separate fee is payable with respect
to the guarantees of the debt securities.
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(3)
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Each depositary share will be
issued under a deposit agreement, will represent an interest in
a fractional share or multiple shares of preferred stock and
will be evidenced by a depositary receipt.
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* Each of the following is a co-registrant that may issue
some or all of the securities:
APACHE
FINANCE PTY LTD
(ACN 080 571 900)
(Exact
name of registrant as specified in its charter)
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Australian Capital Territory
(State or other jurisdiction
of incorporation or organization)
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52-2061913
(I.R.S. Employer
Identification Number)
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APACHE
FINANCE AUSTRALIA PTY LTD
(ACN 104 261 261)
(Exact
name of registrant as specified in its charter)
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Australian Capital Territory
(State or other jurisdiction
of incorporation or organization)
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98-0397057
(I.R.S. Employer
Identification Number)
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APACHE
FINANCE CANADA CORPORATION
(Exact
name of registrant as specified in its charter)
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Nova Scotia
(State or other jurisdiction
of incorporation or organization)
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98-0216251
(I.R.S. Employer
Identification Number)
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APACHE
FINANCE CANADA II CORPORATION
(Exact
name of registrant as specified in its charter)
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Nova Scotia
(State or other jurisdiction
of incorporation or organization)
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98-0397056
(I.R.S. Employer
Identification Number)
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PROSPECTUS
APACHE CORPORATION
APACHE FINANCE PTY
LTD
APACHE FINANCE AUSTRALIA PTY
LTD
APACHE FINANCE CANADA
CORPORATION
APACHE FINANCE CANADA II
CORPORATION
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize
all the material terms and provisions of the various types of
securities that Apache, Apache Finance, Apache Australia, Apache
Canada
and/or
Apache Canada II may offer. The particular terms of the
securities offered by any prospectus supplement will be
described in that prospectus supplement. If indicated in an
applicable prospectus supplement, the terms of the securities
may differ from the terms summarized below. An applicable
prospectus supplement will also contain information, where
applicable, about material U.S. federal income tax
considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
Apache may sell from time to time, in one or more offerings:
common stock and related rights;
preferred stock;
depositary shares;
common stock purchase contracts;
common stock purchase units;
senior debt securities; and/or
subordinated debt securities.
Each of Apache Finance, Apache Australia, Apache Canada and
Apache Canada II may from time to time offer its senior or
subordinated debt securities. Each of these securities may be
guaranteed by us as described below.
In this prospectus, securities collectively refers
to the securities described above.
Apaches common stock is listed for trading on the New York
Stock Exchange, the Nasdaq Global Select Market and the Chicago
Stock Exchange under the symbol APA.
We may sell securities to or through underwriters, dealers or
agents. For additional information on the method of sale, you
should refer to the section entitled Plan of
Distribution. The names of any underwriters, dealers or
agents involved in the sale of any securities and the specific
manner in which they may be offered will be set forth in the
prospectus supplement covering the sale of those securities.
This prospectus may not be used to sell securities unless it is
accompanied by a prospectus supplement.
Investing in these securities involves certain risks. For a
discussion of the factors you should carefully consider before
deciding to purchase these securities, please read Risk
Factors in our most recently-filed Annual Report on
Form 10-K
and our most recently-filed Quarterly Report on
Form 10-Q,
as well as those that may be included in the applicable
prospectus supplement and other information included and
incorporated by reference in this prospectus. Also, please read
Cautionary Statement Regarding Forward-Looking
Statements beginning on page ii of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is December 2, 2008
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
You should rely only on the information provided in or
incorporated by reference in this prospectus, any prospectus
supplement, or documents to which we otherwise refer you. We
have not authorized anyone else to provide you with different
information. We are not making an offer of any securities in any
jurisdiction where the offer is not permitted. You should not
assume that the information in this prospectus, any prospectus
supplement or any document incorporated by reference is accurate
as of any date other than the date of the document in which such
information is contained or such other date referred to in such
document, regardless of the time of any sale or issuance of a
security.
This prospectus is part of a registration statement that we have
filed with the Securities and Exchange Commission, or SEC,
utilizing a shelf registration process. Under this
shelf process, we may sell different types of securities
described in this prospectus in one or more offerings. This
prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering and the securities
offered by us in that offering. The prospectus supplement may
also add, update or change information in this prospectus. You
should read both this prospectus and any prospectus supplement
together with additional information described under the
headings Where You Can Find More Information and
Incorporation by Reference.
This prospectus contains summaries of certain provisions
contained in some of the documents described herein, but
reference is made to the actual documents for complete
information. All of the summaries are qualified in their
entirety by reference to the actual documents. Copies of some of
the documents referred to herein have been filed or will be
filed or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and
you may obtain copies of those documents as described below in
the section entitled Where You Can Find More
Information.
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In this prospectus, references to Apache,
we, us and our mean Apache
Corporation and its consolidated subsidiaries, unless otherwise
noted. References to Apache Finance mean Apache
Finance Pty Ltd. References to Apache Australia mean
Apache Finance Australia Pty Ltd. References to Apache
Canada mean Apache Finance Canada Corporation and
references to Apache Canada II mean Apache
Finance Canada II Corporation.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in
this prospectus contain statements that constitute forward
looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934.
These statements relate to future events or our future financial
performance, which involve known and unknown risks,
uncertainties and other factors that may cause our actual
results, levels of activity, performance or achievements to be
materially different from those expressed or implied by any
forward-looking statements. In some cases, you can identify
forward-looking statements by terminology such as
expect, anticipate,
estimate, intend, may,
will, could, would,
should, predict, potential,
plan, believe or the negative of these
terms or similar terminology.
These statements are only predictions. Actual events or results
may differ materially because of market conditions in our
markets or other factors. Moreover, we do not, nor does any
other person, assume responsibility for the accuracy and
completeness of those statements. Unless otherwise required by
applicable securities laws, we disclaim any intention or
obligation to update any of the forward-looking statements after
the date of this prospectus. All of the forward-looking
statements are qualified in their entirety by reference to the
factors discussed under the captions Risk Factors,
Managements Discussion and Analysis of Results of
Operations and Financial Condition in our annual report on
Form 10-K
for the fiscal year ended December 31, 2007 (incorporated
by reference in this prospectus) and similar sections in our
subsequent filings that we incorporated by reference in this
prospectus, which describe risks and factors that could cause
results to differ materially from those projected in those
forward-looking statements.
Those risk factors may not be exhaustive. We operate in a
continually changing business environment, and new risk factors
emerge from time to time. We cannot predict these new risk
factors, nor can we assess the impact, if any, of these new risk
factors on our businesses or the extent to which any factor, or
combination of factors, may cause actual results to differ
materially from those projected in any forward-looking
statements. Accordingly, forward-looking statements should not
be relied upon as a prediction of actual results.
Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934 are not
applicable to any of the issuers other than Apache.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed a registration statement on
Form S-3
with the SEC under the Securities Act of 1933, as amended, or
the Securities Act, that registers the securities offered by
this prospectus. The registration statement, including the
attached exhibits, contains additional relevant information
about us. The rules and regulations of the SEC allow us to omit
from this prospectus some information included in the
registration statement.
We file annual, quarterly, and special reports, proxy statements
and other information with the SEC under the Securities Exchange
Act of 1934, as amended, or the Exchange Act. You may read and
copy any materials we file with the SEC at the SECs Public
Reference Room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the Public Reference
Room. The SEC maintains an Internet website at
http://www.sec.gov that contains reports, proxy and
information statements, and other information regarding issuers,
including us, that file electronically with the SEC. General
information about us, including our annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and amendments to those reports, is available free of charge
through our website at http://www.apachecorp.com as soon
as reasonably practicable after we electronically file them
with, or
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furnish them to, the SEC. Information on our website is not
incorporated into this prospectus or our other securities
filings and is not a part of these filings.
Our common stock has been listed and traded on the New York
Stock Exchange since 1969, the Nasdaq Global Select Market since
2004 and the Chicago Stock Exchange since 1960. Accordingly, you
may inspect the information we file with the Securities and
Exchange Commission at the New York Stock Exchange,
20 Broad Street, New York, New York 10005, the National
Association of Securities Dealers, Inc.,
1735 K Street, N.W., Washington, D.C. 20006, and
at the Chicago Stock Exchange, One Financial Place,
440 S. LaSalle Street, Chicago, Illinois
60605-1070.
For more information on obtaining copies of our public filings
at the New York Stock Exchange, you should call
(212) 656-5060.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose
important information to you by referring you to another
document filed separately with the SEC. The information
incorporated by reference is considered to be part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede the previously filed
information. We incorporate by reference the documents listed
below and any future filings made by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
other than any portions of the respective filings that were
furnished, pursuant to Item 2.02 or Item 7.01 of
Current Reports on
Form 8-K
(including exhibits related thereto) or other applicable SEC
rules, rather than filed, prior to the termination of the
offerings under this prospectus:
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Registration Statements on
Form 8-A
(File
No. 001-04300)
filed on January 24, 1996, May 12, 1999, May 13,
1999, December 13, 1999 and February 3, 2006;
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Annual Report on
Form 10-K
(File
No. 001-04300)
for the year ended December 31, 2007, filed on
February 29, 2008;
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Quarterly Reports on Form 10-Q (File No. 001-4300)
filed on May 12, 2008, August 11, 2008 and
November 10, 2008; and
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Current Reports on
Form 8-K
(File
No. 001-04300)
filed on September 29, 2008 and October 1, 2008.
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Each of these documents is available from the SECs web
site and public reference rooms described above. Through our
website, http://www.apachecorp.com, you can access
electronic copies of documents we file with the SEC, including
our annual reports on
Form 10-K,
quarterly reports on
Form 10-Q
and current reports on
Form 8-K
and any amendments to those reports. Information on our website
is not incorporated by reference in this prospectus. Access to
those electronic filings is available as soon as practical after
filing with the SEC. You may also request a copy of those
filings, excluding exhibits, at no cost by writing or
telephoning Cheri L. Peper, Corporate Secretary, at our
principal executive office, which is:
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas
77056-4400
(713) 296-6000
There are no separate financial statements of Apache Finance,
Apache Australia, Apache Canada or Apache Canada II in this
prospectus. We do not believe these financial statements would
be helpful because:
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Apache Finance, Apache Australia, Apache Canada and Apache
Canada II are wholly-owned subsidiaries of Apache, which
files consolidated financial information under the Securities
Exchange Act of 1934;
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Apache Finance, Apache Australia, Apache Canada and Apache
Canada II will not have any independent operations other
than issuing their debt securities and other necessary or
incidental activities as described in this prospectus;
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Apache guarantees the debt securities of Apache Finance, Apache
Australia, Apache Canada and Apache Canada II.
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iii
You should rely only on the information incorporated by
reference or provided in this prospectus or any prospectus
supplement. The information on our web site is not incorporated
by reference into this prospectus. Neither Apache, Apache
Finance, Apache Australia, Apache Canada nor Apache
Canada II has authorized anyone to provide you with
different information.
Neither Apache nor Apache Finance, Apache Australia, Apache
Canada or Apache Canada II is making an offer of the
securities covered by this prospectus in any state where the
offer is not permitted.
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APACHE
CORPORATION
Apache Corporation, a Delaware corporation formed in 1954, is an
independent energy company that explores for, develops and
produces natural gas, crude oil and natural gas liquids. In
North America, our exploration and production interests are
focused in the Gulf of Mexico, the Gulf Coast, East Texas, the
Permian Basin, the Anadarko Basin and the Western Sedimentary
Basin of Canada. Outside of North America we have exploration
and production interests onshore Egypt, offshore Western
Australia, offshore the United Kingdom in the North Sea (North
Sea), and onshore Argentina.
We hold interests in many of our U.S., Canadian, and other
international properties through operating subsidiaries, such as
Apache Canada Ltd., DEK Energy Company (DEKALB), Apache Energy
Limited (AEL), Apache North America, Inc., and Apache Overseas,
Inc. Properties referred to in this prospectus, any prospectus
supplement, or in any document incorporated by reference in this
prospectus may be held by those subsidiaries. We treat all
operations as one line of business.
APACHE
FINANCE PTY LTD
Apache Finance is a proprietary company with limited liability
organized in October 1997 under the laws of the Australian
Capital Territory, Australia. Apache Finance is our indirect
wholly-owned subsidiary, and Apache Finance issues debt
securities guaranteed by us. Apache Finance was established to
facilitate financing of and investment in our Australian
operations and entities.
The principal place of business of Apache Finance is 256 St.
Georges Terrace, Level 3, Perth, Western Australia
6000; telephone
61-8-9422-7222.
APACHE
FINANCE AUSTRALIA PTY LTD
Apache Australia is a proprietary company with limited liability
organized in March 2003 under the laws of the Australian Capital
Territory, Australia. Apache Australia is our indirect
wholly-owned subsidiary, and Apache Australia issues debt
securities guaranteed by us. Apache Australia was established to
facilitate financing of and investment in our Australian
operations and entities.
The principal place of business of Apache Australia is 256 St.
Georges Terrace, Level 3, Perth, Western Australia
6000; telephone
61-8-9422-7222.
APACHE
FINANCE CANADA CORPORATION
Apache Canada is an unlimited liability company organized in
August 1999 under the laws of the Province of Nova Scotia,
Canada. Apache Canada is our indirect wholly-owned subsidiary
and issues debt securities guaranteed by us. Apache Canada was
established to facilitate financing of and investment in our
Canadian operations and entities.
The principal place of business of Apache Canada is
700 9th Ave. SW, Suite 1000, Calgary,
Alberta, Canada T2P 3V4; telephone
403-261-1200.
APACHE
FINANCE CANADA II CORPORATION
Apache Canada II is an unlimited liability company
organized in March 2003 under the laws of the Province of Nova
Scotia, Canada. Apache Canada II is our indirect
wholly-owned subsidiary, and issues debt securities guaranteed
by us. Apache Canada II was established to facilitate
financing of and investment in our Canadian operations and
entities.
The principal place of business of Apache Canada II is
700 9th Ave. SW, Suite 1000, Calgary,
Alberta, Canada T2P 3V4; telephone
403-261-1200.
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USE OF
PROCEEDS
Unless otherwise indicated in an accompanying prospectus
supplement, we, Apache Finance, Apache Australia, Apache Canada
and Apache Canada II expect to use the net proceeds from
the sale of our securities and Apache Australia, Apache Canada
and Apache Canada II debt securities, as the case may be,
for general corporate purposes, which may include, among other
things:
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the repayment of outstanding indebtedness;
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working capital;
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capital expenditures; and
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acquisitions.
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The precise amount and timing of the application of such
proceeds will depend upon our funding requirements and the
availability and cost of other funds. We currently have no plans
for specific use of the net proceeds. We will specify the
principal purposes for which the net proceeds will be used in a
prospectus supplement at the time of sale.
DESCRIPTION
OF APACHE CORPORATION CAPITAL STOCK
The following descriptions of our common stock and preferred
stock, together with the additional information included in any
applicable prospectus supplement, summarize the material terms
and provisions of these types of securities. For the complete
terms of our common stock and preferred stock, please refer to
our charter, bylaws and stockholder rights plan that are
incorporated by reference into the registration statement that
includes this prospectus. The terms of these securities may also
be affected by the General Corporation Law of the State of
Delaware.
Under our charter, our authorized capital stock currently
consists of 430,000,000 shares of common stock,
$.625 par value per share, and 5,000,000 shares of
preferred stock, no par value. We will describe the specific
terms of any common stock or preferred stock we may offer in a
prospectus supplement. If indicated in a prospectus supplement,
the terms of any common stock or preferred stock offered under
that prospectus supplement may differ from the terms described
below.
Common
Stock
As of October 31, 2008, we had approximately
334,689,127 shares of common stock issued and outstanding
and approximately 22 million shares of common stock
reserved for issuance pursuant to various employee benefit plans
(including treasury shares authorized for issuance under those
plans). Each outstanding share of common stock currently
includes one preferred share purchase right issued under our
stockholder rights plan, which is summarized below. All
outstanding shares of common stock are, and any shares of common
stock sold pursuant to this prospectus will be, duly authorized,
validly issued, fully paid and non-assessable.
Voting
For all matters submitted to a vote of stockholders, each holder
of common stock is entitled to one vote for each share
registered in his or her name on our books. Our common stock
does not have cumulative voting rights. As a result, subject to
the voting rights of Series B preferred stockholders
described below and any future holders of our preferred stock,
persons who hold more than 50 percent of the outstanding
common stock entitled to elect members of the board of directors
can elect all of the directors who are up for election in a
particular year.
Dividends
If our board of directors declares a dividend, holders of common
stock will receive payments from our funds that are legally
available to pay dividends. This dividend right, however, is
subject to any preferential
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dividend rights we have granted to Series B preferred
stockholders or may grant to future holders of preferred stock.
Liquidation
If we dissolve, the holders of common stock will be entitled to
share ratably in all the assets that remain after we pay our
liabilities and any amounts we may owe to the persons who hold
our preferred stock.
Other
Rights and Restrictions
Holders of common stock do not have preemptive rights, and they
have no right to convert their common stock into any other
securities. Our common stock is not subject to redemption by us.
Our charter and bylaws do not restrict the ability of a holder
of common stock to transfer his or her shares of common stock.
Delaware law provides that, if we make a distribution to our
stockholders other than a distribution of our capital stock
either when we are insolvent or when we would be rendered
insolvent, then our stockholders would be required to pay back
to us the amount of the distribution we made to them, or the
portion of the distribution that causes us to become insolvent,
as the case may be.
Listing
Our common stock is listed on the New York Stock Exchange, the
Nasdaq Global Select Market and the Chicago Stock Exchange under
the symbol APA.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is Wells
Fargo Bank, N.A.
Preferred
Stock
General
We have 5,000,000 shares of no par preferred stock
authorized, of which 25,000 shares have been designated as
Series A Junior Participating Preferred Stock and
100,000 shares have been designated as 5.68 %
Series B Cumulative Preferred Stock. The remaining shares
of preferred stock are undesignated.
Our charter authorizes our board of directors to issue preferred
stock in one or more series and to determine the voting rights
and dividend rights, dividend rates, liquidation preferences,
conversion rights, redemption rights, including sinking fund
provisions and redemption prices, and other terms and rights of
each series of preferred stock.
Series A
The shares of Series A preferred stock are authorized for
issuance pursuant to rights that trade with our outstanding
common stock and are reserved for issuance upon the exercise of
the rights discussed below under the caption
Stockholder Rights Plan.
Series B
As of October 31, 2008, we had issued and outstanding
100,000 shares of Series B preferred stock in the form
of one million depositary shares, each representing one-tenth
(1/10th) of a share of Series B preferred stock. The
Series B preferred stock has no stated maturity, is not
subject to a sinking fund and is not convertible into our common
stock or any other securities. Since August 25, 2008, we
have had the option to redeem the Series B preferred stock
at $1,000 per share. Holders of the depositary shares are
entitled to receive cumulative cash dividends at an annual rate
of $5.68 per depositary share (based on $56.80 for each
share of Series B preferred stock) when, as and if declared
by Apaches board of directors.
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The Series B preferred stock has a liquidation preference
of $1,000 per share, which is equivalent to $100 per
depositary share, plus accrued and unpaid dividends.
The Series B preferred stock ranks prior and superior to
our common stock and Series A preferred stock as to payment
of dividends and distribution of assets upon our dissolution,
liquidation or winding up.
If dividends are not paid on the Series B preferred stock,
cash payments on our common stock and any of our other capital
stock that ranks junior to the Series B preferred stock as
to dividends are prohibited and payments on any of our other
capital stock that ranks equal to the Series B preferred
stock as to dividends are restricted.
Shares of Series B preferred stock generally do not have
voting rights. If, however, we fail to pay the equivalent of six
quarterly dividends payable on the Series B preferred stock
or another class or series of preferred stock that ranks equally
with the Series B preferred stock, then we will increase
the size of our board of directors by two members. The holders
of the Series B preferred stock and any other class or
series of preferred stock ranking equally with the Series B
preferred stock voting as a single class together with any other
class of preferred stock ranking equally will then have the
right to vote for the two additional directors. This voting
right would continue until we have paid all past dividends on
all preferred stock.
Without the vote of at least 80 percent of the outstanding
shares of Series B preferred stock, we may not amend any
provision in our charter so as to adversely affect the powers,
preferences, privileges or rights of the Series B preferred
stock.
Without the approval of the holders, voting together as a single
class, of 80 percent of all the shares of Series B
preferred stock then outstanding and all shares of any other
series of our preferred stock ranking equally as to dividends or
upon liquidation we will not:
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issue, authorize or increase the authorized amount of, or issue
or authorize any obligation or security convertible into or
evidencing a right to purchase, any stock of any class ranking
prior to the Series B preferred stock as to dividends or
upon liquidation; or
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reclassify any of our authorized stock into any stock of any
class, or any obligation or security convertible into or
evidencing a right to purchase such stock, ranking prior to the
Series B preferred stock,
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provided that no such vote will be required for us to take any
of these actions to issue, authorize or increase the authorized
amount of, or issue or authorize any obligation or security
convertible into or evidencing a right to purchase, any stock
ranking equally with or junior to the Series B preferred
stock.
Without the approval of the holders of at least a majority of
the shares of Series B preferred stock then outstanding, we
will not become a party to any merger, conversion, consolidation
or compulsory share exchange unless the terms of that
transaction do not provide for a change in the terms of the
Series B preferred stock and the Series B preferred
stock ranks equally with or prior to any capital stock of the
surviving corporation as to dividends or upon liquidation,
dissolution or winding up other than prior-ranking Apache stock
previously authorized with the consent of holders of the
Series B preferred stock.
Undesignated
Preferred Stock
This summary of the undesignated preferred stock discusses terms
and conditions that may apply to preferred stock offered under
this prospectus. The applicable prospectus supplement will
describe the particular terms of each series of preferred stock
actually offered. If indicated in the prospectus supplement, the
terms of any series may differ from the terms described below.
The following description, together with any applicable
prospectus supplement, summarizes all the material terms and
provisions of any preferred stock being offered by this
prospectus. It does not restate the terms and provisions in
their entirety. We urge you to read our charter and any
applicable certificate of designation that may be on file
because they, and not this description, define the rights of any
holders of preferred stock. We have filed our charter as an
exhibit to the registration statement which includes this
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prospectus. We will incorporate by reference as an exhibit to
the registration statement the form of any certificate of
designation before the issuance of any series of preferred stock.
The prospectus supplement for any preferred stock that we
actually offer pursuant to this prospectus may include some or
all of the following terms:
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the designation of the series of preferred stock;
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the number of shares of preferred stock offered, the liquidation
preference per share and the offering price of the preferred
stock;
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the dividend rate or rates of the shares, the method or methods
of calculating the dividend rate or rates, the dates on which
dividends, if declared, will be payable, and whether or not the
dividends are to be cumulative and, if cumulative, the date or
dates from which dividends will be cumulative;
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the amounts payable on shares of the preferred stock in the
event of our voluntary or involuntary liquidation, dissolution
or winding up;
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the redemption rights and price or prices, if any, for the
shares of preferred stock;
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any terms, and the amount, of any sinking fund or analogous fund
providing for the purchase or redemption of the shares of
preferred stock;
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any restrictions on our ability to make payments on any of our
capital stock if dividend or other payments are not made on the
preferred stock;
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any voting rights granted to the holders of the shares of
preferred stock in addition to those required by Delaware law or
our certificate of incorporation;
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whether the shares of preferred stock will be convertible or
exchangeable into shares of our common stock or any other
security, and, if convertible or exchangeable, the conversion or
exchange price or prices, and any adjustment or other terms and
conditions upon which the conversion or exchange shall be made;
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any other rights, preferences, restrictions, limitations or
conditions relative to the shares of preferred stock permitted
by Delaware law or our certificate of incorporation;
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any listing of the preferred stock on any securities exchange;
and
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the U.S. federal income tax considerations applicable to
the preferred stock.
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Subject to our charter and to any limitations imposed by any
then-outstanding preferred stock, we may issue additional series
of preferred stock, at any time or from time to time, with such
powers, preferences, rights and qualifications, limitations or
restrictions as the board of directors determines, and without
further action of the stockholders, including holders of our
then outstanding preferred stock, if any.
Stockholder
Rights Plan
In 1995, our board of directors adopted a stockholder rights
plan to replace the former plan adopted in 1986. The plan, which
was initially to have expired in January 1996, was amended to
extend the term of the plan to January 2016, to reset the rights
trading with each share of our common stock to one right per
share, and to eliminate adjustments in the number of rights per
share for future capitalization events, such as stock splits.
Under our stockholder rights plan, each of our common
stockholders received a dividend of one preferred stock
purchase right for each outstanding shares of common stock
that the stockholder owned. We refer to these preferred stock
purchase rights as the rights. Unless the rights
have been previously redeemed, all shares of our common stock
are issued with rights. The rights trade automatically with our
shares of common stock and become exercisable only under the
circumstances described below.
Since the purpose of the rights is to encourage potential
acquirors to negotiate with our board of directors before
attempting a takeover bid and to provide our board of directors
with leverage in negotiating on behalf
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of our stockholders the terms of any proposed takeover, the
rights may have anti-takeover effects. They should not
interfere, however, with any merger or other business
combination approved by our board of directors.
The following description is a summary of all the material terms
of our stockholder rights plan. It does not restate these terms
in their entirety. We urge you to read our stockholder rights
plan because it, and not this description, defines the terms and
provisions of our plan. Our stockholder rights plan is
incorporated by reference as an exhibit to the registration
statement that includes this prospectus. You may obtain a copy
at no charge by writing to us at the address listed under the
caption Where You Can Find More Information.
Exercise
of Rights
Until a right is exercised, the holder of a right will not have
any rights as a stockholder. When the rights become exercisable,
holders of the rights will be able to purchase from us
1/10,000th of a share of our Series A preferred stock,
at a purchase price of $100, subject to adjustment, per
1/10,000th of a share.
In general, the rights will become exercisable upon the earlier
of:
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ten calendar days after a public announcement that a person or
group has acquired beneficial ownership of 20 percent or
more of the outstanding shares of our common stock; or
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ten business days after the beginning of a tender offer or
exchange offer that would result in a person or group
beneficially owning 30 percent or more of our common stock.
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Flip
in Event
If a person or group becomes the beneficial owner of
20 percent or more of our common stock, each right will
then entitle its holder to receive, upon exercise, a number of
shares of our common stock that is equal to the exercise price
of the right divided by one-half of the market price of our
common stock on the date of the occurrence of this event. We
refer to this occurrence as a flip in event. A flip
in event does not occur if there is an offer for all of our
outstanding shares of common stock that our board of directors
determines is fair to our stockholders and in our best interests.
Flip
Over Event
If, at any time after a person or group becomes the beneficial
owner of 20 percent or more of our common stock, we are
acquired in a merger or other transaction in which we do not
survive or in which our common stock is changed or exchanged or
50 percent or more of our assets or earning power is sold
or transferred, then each holder of a right will be entitled to
receive, upon exercise, a number of shares of common stock of
the acquiring company in the transaction equal to the exercise
price of the right divided by one-half of the market price of
the acquiring companys common stock on the date of the
occurrence of this event. This exercise right will not occur if
the merger or other transaction follows an offer for all of our
outstanding shares of common stock that our board of directors
determines is fair to our stockholders and in our best interests.
Exchange
of Rights
At any time after a flip in event but prior to a person or group
becoming a beneficial owner of more than 50 percent of the
shares of outstanding common stock, our board of directors may
exchange the rights by providing to the holder one share of our
common stock or 1/10,000th of a share of our Series A
preferred stock for each of the holders rights.
Redemption
of Rights
At any time before a flip in event, we may redeem the rights at
a price of $.01 per right. The rights will expire on the
close of business on January 31, 2016, subject to earlier
expiration or termination as described in our stockholder rights
plan.
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Unless and until the rights become exercisable, they will be
transferred with and only with the shares of our common stock.
Anti-Takeover
Effect of Provisions of Apaches Charter and Bylaws and
Delaware Law
Our charter and bylaws include provisions, summarized below,
that may have the effect of delaying, deferring or preventing a
takeover of Apache. Please refer to our charter and bylaws that
are incorporated by reference into the registration statement
that includes this prospectus. You may obtain copies at no
charge by writing to us at the address listed under the caption
Where You Can Find More Information.
The provisions of Delaware law described below also may have an
anti-takeover effect.
Apaches
Bylaws
Our board of directors is divided into three classes, with
directors serving staggered three-year terms.
Apaches
Charter
Article Nine provides that our board of directors is
divided into three classes, with directors serving staggered
three-year terms.
Article Twelve stipulates that the affirmative vote of
80 percent of our voting shares is required to adopt any
agreement for the merger or consolidation with or into any other
corporation which is the beneficial owner of more than
5 percent of our voting shares. Article Twelve further
provides that such 80 percent approval is necessary to
authorize any sale or lease of assets between us and any
beneficial holder of 5 percent or more of our voting shares.
Article Fourteen contains a fair price
provision that requires any tender offer made by a beneficial
owner of more than 5 percent of our outstanding voting
stock in connection with any:
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plan of merger, consolidation or reorganization;
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sale or lease of substantially all of our assets; or
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issuance of our equity securities to the 5 percent
stockholder
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must provide at least as favorable terms to each holder of
common stock other than the stockholder making the tender offer.
Article Fifteen contains an anti-greenmail
mechanism which prohibits us from acquiring any voting stock
from the beneficial owner of more than 5 percent of our
outstanding voting stock, except for acquisitions pursuant to a
tender offer to all holders of voting stock on the same price,
terms and conditions, acquisitions in compliance with
Rule 10b-18
under the Securities Exchange Act of 1934 and acquisitions at a
price not exceeding the market value per share.
Article Sixteen prohibits the stockholders from acting by
written consent in lieu of a meeting.
The affirmative vote of 80 percent of the voting shares is
required to amend or adopt any provision inconsistent with
Articles Nine, Twelve, Fourteen and Sixteen.
Business
Combinations with Interested Stockholders Under Delaware
Law
Section 203 of the Delaware General Corporation Law
prevents a publicly held corporation from engaging in a
business combination with an interested
stockholder for a period of three years after the date of
the transaction in which the person became an interested
stockholder, unless:
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before the date on which the person became an interested
stockholder, the board of directors of the corporation approved
either the business combination or the transaction in which the
person became an interested stockholder;
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the interested stockholder owned at least 85 percent of the
outstanding voting stock of the corporation at the beginning of
the transaction in which it became an interested stockholder,
excluding stock held by directors who are also officers of the
corporation and by employee stock plans that do not provide
participants with the rights to determine confidentially whether
shares held subject to the plan will be tendered in a tender or
exchange offer; or
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on or after the date on which the interested stockholder became
an interested stockholder, the business combination is approved
by the board of directors and the holders of two-thirds of the
outstanding voting stock of the corporation voting at a meeting,
excluding the voting stock owned by the interested stockholder.
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As defined in Section 203, an interested
stockholder is generally a person owning 15 percent
or more of the outstanding voting stock of the corporation. As
defined in Section 203, a business combination
includes mergers, consolidations, stock and assets sales and
other transactions with the interested stockholder.
The provisions of Section 203 may have the effect of
delaying, deferring or preventing a change of control of Apache.
DESCRIPTION
OF DEPOSITARY SHARES
The following description, together with any applicable
prospectus supplement, summarizes all the material terms and
provisions of the depositary shares that we may offer under this
prospectus and the related deposit agreements and depositary
receipts. Specific deposit agreements and depositary receipts
will contain additional important terms and provisions. The
forms of the applicable deposit agreement and depositary receipt
will be incorporated by reference as an exhibit to the
registration statement that includes this prospectus before we
issue any depositary shares.
This summary of depositary agreements, depositary shares and
depositary receipts relates to terms and conditions applicable
to these types of securities generally. The particular terms of
any series of depositary shares will be summarized in the
applicable prospectus supplement. If indicated in the applicable
prospectus supplement, the terms of any series may differ from
the terms summarized below.
General
We may elect to offer fractional shares of preferred stock
rather than full shares of preferred stock. If so, we will issue
depositary receipts for these depositary
shares. Each depositary share will represent a fraction of
a share of a particular series of preferred stock. Each holder
of a depositary share will be entitled, in proportion to the
fraction of preferred stock represented by that depositary
share, to all the rights, preferences and privileges of the
preferred stock, including dividend, voting, redemption,
conversion and liquidation rights, if any, and all the
limitations of the preferred stock. We will enter into a deposit
agreement with a depositary, which will be named in the
applicable prospectus supplement.
In order to issue depositary shares, we will issue preferred
stock and immediately deposit these shares with the depositary.
The depositary will then issue and deliver depositary receipts
to the persons who purchase depositary shares. Each whole
depositary share issued by the depositary may represent a
fraction of a share of preferred stock held by the depositary.
The depositary will issue depositary receipts in a form that
reflects whole depositary shares, and each depositary receipt
may evidence any number of whole depositary shares.
Pending the preparation of definitive engraved depositary
receipts, if any, a depositary may, upon our written order,
issue temporary depositary receipts, which will temporarily
entitle the holders to all the rights pertaining to the
definitive depositary receipts. We will bear the costs and
expenses of promptly preparing definitive depositary receipts
and of exchanging the temporary depositary receipts for such
definitive depositary receipts.
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Dividends
and Other Distributions
The depositary will distribute all cash and non-cash
distributions it receives with respect to the underlying
preferred stock to the record holders of depositary shares in
proportion to the number of depositary shares they hold, subject
to any obligations of the record holders to file proofs,
certificates and other information and to pay any taxes or other
governmental charges. In the case of any non-cash distribution,
we may determine that the distribution cannot be made
proportionately or the depositary may determine that it may not
be feasible to make the distribution. If so, the depositary may,
with our approval, adopt a method it deems equitable and
practicable to effect the distribution, including the sale,
public or private, of the securities or other non-cash property
it receives in the distribution at a place and on terms it deems
proper. The amounts distributed by the depositary will be
reduced by any amount required to be withheld by us or the
depositary on account of taxes.
Redemption
of Depositary Shares
If the shares of preferred stock that underlie the depositary
shares are redeemable and we redeem the preferred stock, the
depositary will redeem the depositary shares from the proceeds
it receives from the redemption of the preferred stock it holds.
The depositary will redeem the number of depositary shares that
represent the amount of underlying preferred stock that we have
redeemed. The redemption price for depositary shares will be in
proportion to the redemption price per share that we paid for
the underlying preferred stock. If we redeem less than all of
the depositary shares, the depositary will select which
depositary shares to redeem by lot, or some substantially
equivalent method.
After a redemption date is fixed, the depositary shares to be
redeemed no longer will be considered outstanding. The rights of
the holders of the depositary shares will cease, except for the
rights to receive money or other property upon redemption. In
order to redeem their depositary shares, holders must surrender
their depositary receipts to the depositary.
Voting
the Preferred Stock
When the depositary receives notice about any meeting at which
the holders of preferred stock are entitled to vote, the
depositary will mail the information contained in the notice to
the record holders of depositary shares related to that
preferred stock. Each record holder of depositary shares on the
record date, which will be the same date as the record date for
the preferred stock, will be entitled to instruct the depositary
on how to vote the shares of preferred stock represented by that
holders depositary shares. The depositary will endeavor,
to the extent practicable, to vote the preferred stock
represented by the depositary shares in accordance with these
instructions. If the depositary does not receive instructions
from the holders of the depositary shares, the depositary will
abstain from voting the preferred stock that underlies those
depositary shares.
Withdrawal
of Preferred Stock
If a holder of depositary receipts surrenders those depositary
receipts at the corporate office (as defined in the deposit
agreement) of the depositary, or any other office as the
depositary may designate, and pays any taxes, charges or fees,
that holder is entitled to delivery at the corporate office of
certificates evidencing the number of shares of preferred stock,
but only in whole shares, and any money and other property
represented by those depositary receipts. If the depositary
receipts we deliver evidence a number of depositary shares in
excess of the number of whole shares of preferred stock to be
withdrawn, the depositary will deliver to us at the same time a
new depositary receipt evidencing that excess number of
depositary shares. We do not expect that there will be any
public trading market for the shares of preferred stock except
those represented by the depositary shares.
Amendment
and Termination of the Deposit Agreement
We and the depositary can agree, at any time, to amend the form
of depositary receipt and any provisions of the deposit
agreement. If, however, an amendment has a material adverse
effect on the rights of the holders of related depositary
shares, the holders of at least a majority of the depositary
shares then outstanding must
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first approve the amendment. Every holder of a depositary
receipt at the time an amendment becomes effective will be bound
by the amended deposit agreement. Subject to any conditions in
the deposit agreement or applicable law, no amendment, however,
can impair the right of any holder of a depositary share to
receive shares of the related preferred stock, or any money or
other property represented by the depositary shares, when they
surrender their depositary receipts.
Unless otherwise specified in the applicable prospectus
supplement, the deposit agreement may be terminated by us or by
the depositary if there has been a final distribution in respect
of the preferred stock in connection with any liquidation,
dissolution or winding up of Apache and that distribution has
been distributed to the holders of depositary receipts.
Charges
of Depositary
We will pay all transfer and other taxes and the government
charges that relate solely to the depositary arrangements. We
will also pay the charges of each depositary, including charges
in connection with the initial deposit of the related series of
preferred stock, the initial issuance of the depositary shares,
and all withdrawals of shares of the related series of preferred
stock. Holders of depositary shares, however, will be required
to pay transfer and other taxes and government charges, as
provided in the deposit agreement.
Resignation
and Removal of Depositary
The depositary may submit notice of resignation at any time or
we may remove the depositary at any time. However, no
resignation or removal will take effect until we appoint a
successor depositary, which must occur within 60 days after
delivery of the notice of resignation or removal. The successor
depositary must be a bank or trust company that has its
principal office in the United States and has a combined capital
and surplus of at least $50,000,000.
Miscellaneous
If we are required to furnish any information to the holders of
the preferred stock underlying any depositary shares, the
depositary, as the holder of the underlying preferred stock,
will forward to the holders of depositary shares any report or
information it receives from us.
Neither the depositary nor we will be liable if its ability to
perform its obligations under the deposit agreement is prevented
or delayed by law or any circumstance beyond its control. Each
of Apache and the depositary will be obligated to use its best
judgment and to act in good faith in performing its duties under
the deposit agreement. Each of Apache and the depositary will be
liable only for gross negligence and willful misconduct in
performing its duties under the deposit agreement. They will not
be obligated to appear in, prosecute or defend any legal
proceeding with respect to any depositary receipts, depositary
shares or preferred stock unless they receive what they, in
their sole discretion, determine to be a satisfactory indemnity
from one or more holders of the depositary shares. We and the
depositary will evaluate any proposed indemnity in order to
determine whether the financial protection afforded by the
indemnity is sufficient to reduce each partys risk to a
satisfactory and customary level. We and the depositary may rely
on the advice of legal counsel or accountants of their choice.
They may also rely on information provided by persons they
believe, in good faith, to be competent, and on documents they
believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the
depositarys corporate trust office. Unless the prospectus
supplement indicates otherwise, the depositary will act as
transfer agent and registrar for depositary receipts, and if we
redeem shares of preferred stock, the depositary will act as
redemption agent for the corresponding depositary receipts.
Title
We, each depositary and any agent of Apache or the applicable
depositary may treat the registered owner of any depositary
share as the absolute owner of the depositary shares for all
purposes, including making
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payment, regardless of whether any payment in respect of the
depositary share is overdue and regardless of any notice to the
contrary. See Book-Entry Securities below.
DESCRIPTION
OF APACHE CORPORATION DEBT SECURITIES
The following description, together with any applicable
prospectus supplement, summarizes all the material terms and
provisions of the debt securities that we may offer under this
prospectus and the related trust indentures. We will issue the
senior debt securities under a senior indenture, dated as of
February 15, 1996, between us and The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, as supplemented by the First
Supplemental Indenture, dated November 5, 1996, between us
and the trustee. We will issue the subordinated debt securities
under a subordinated indenture to be executed in the future by
us and The Bank of New York Mellon Trust Company, N.A., as
trustee. The senior indenture and the subordinated indenture are
together referred to in this section as the
indentures. The senior debt securities and the
subordinated debt securities are together referred to in this
section as the debt securities. The Bank of New York
Mellon Trust Company, N.A., or any successor, in its capacity as
trustee under either or both of the indentures, is referred to
as the trustee for purposes of this section. The
indentures contain and the debt securities, when issued, will
contain additional important terms and provisions. The
indentures are, and prior to their issuance the debt securities
will be, filed as exhibits to the registration statement that
includes this prospectus.
This summary of the indentures and the debt securities relates
to terms and conditions applicable to the debt securities
generally. The applicable prospectus supplement will set forth
the particular terms of any series of debt securities that we
may offer. If indicated in the prospectus supplement, the terms
of any series may differ from the terms summarized below.
Neither indenture limits the amount of debt securities we may
issue under it, and each provides that additional debt
securities of any series may be issued up to the aggregate
principal amount that we authorize from time to time. We also
may issue debt securities pursuant to the indentures in
transactions exempt from the registration requirements of the
Securities Act of 1933. Those debt securities will not be
considered in determining the aggregate amount of securities
issued under this prospectus.
Unless otherwise indicated in the applicable prospectus
supplement, we will issue the debt securities in denominations
of $1,000 or integral multiples of $1,000.
Other than as described below under The Senior Indenture
Limits Our Ability to Incur Liens, The Senior
Indenture Limits Our Ability to Engage in Sale/Leaseback
Transactions and We Are Obligated to Purchase Debt
Securities upon a Change in Control, and as may be
described in the applicable prospectus supplement, the
indentures do not limit our ability to incur indebtedness or
afford holders of debt securities protection in the event of a
decline in our credit quality or if we are involved in a
takeover, recapitalization or highly leveraged or similar
transaction. Nothing in the indentures or the debt securities
will in any way limit the amount of indebtedness or securities
that we or our subsidiaries, as defined in the indentures, may
incur or issue.
General
The prospectus supplement relating to the particular series of
debt securities being offered will specify whether they are
senior or subordinated debt securities and the amounts, prices
and terms of those debt securities. These terms may include:
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the designation, aggregate principal amount and authorized
denominations of the debt securities;
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the date or dates on which the debt securities will mature;
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the percentage of the principal amount at which the debt
securities will be issued;
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the date on which the principal of the debt securities will be
payable;
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whether the debt securities will be issued as registered
securities, bearer securities or a combination of the two;
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whether the debt securities will be issued in the form of one or
more global securities and whether such global securities will
be issued in a temporary global form or permanent global form;
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the currency or currencies or currency unit or units of two or
more currencies in which debt securities are denominated, for
which they may be purchased, in which principal and any premium
and interest is payable and any special U.S. federal income
tax or other considerations;
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if the currency or currencies or currency unit or units for
which debt securities may be purchased or in which principal and
any premium and interest may be paid is at our election or at
the election of a purchaser, the manner in which an election may
be made and its terms;
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the annual rate or rates, which may be fixed or variable, or the
method of determining the rate or rates at which the debt
securities will bear any interest, whether by remarketing,
auction, formula or otherwise;
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the date or dates from which any interest will accrue and the
date or dates on which such interest will be payable;
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a description of any provisions providing for redemption,
exchange or conversion of the debt securities at our option, a
holders option or otherwise, and the terms and provisions
of such a redemption, exchange or conversion;
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information with respect to book-entry procedures relating to
global debt securities;
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sinking fund terms;
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whether and under what circumstances we will pay
additional amounts, as defined in the indentures, on
the debt securities to any holder who is a United States
alien, as defined in the indentures, in respect of any
tax, assessment or governmental charge; the term
interest, as used in this prospectus, includes any
additional amounts;
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any modifications or additions to, or deletions of, any of the
events of default or covenants of Apache with respect to the
debt securities that are described in this section;
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if either or both of the sections of the applicable indenture
relating to defeasance and covenant defeasance are not
applicable to the debt securities, or if any covenants in
addition to or other than those specified in the applicable
indenture shall be subject to covenant defeasance;
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any deletions from, or modifications or additions to, the
provisions of the indentures relating to satisfaction and
discharge in respect of the debt securities;
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any index or other method used to determine the amount of
payments of principal of, and any premium and interest on, the
debt securities; and
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any other specific terms of the debt securities.
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We are not obligated to issue all debt securities of any one
series at the same time and, unless we specify otherwise in the
applicable prospectus supplement, a series of debt securities
may be reopened for additional issuances of debt securities of
that series or to establish additional terms of that series. The
debt securities of any one series may not bear interest at the
same rate or mature on the same date.
If any of the debt securities are sold for foreign currencies or
foreign currency units or if the principal of, or any premium or
interest on, any series of debt securities is payable in foreign
currencies or foreign currency units, we will describe the
restrictions, elections, tax consequences, specific terms and
other information with respect to those debt securities and such
foreign currencies or foreign currency units in the applicable
prospectus supplement.
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The terms, if any, on which the debt securities of any series
are convertible into or exchangeable for shares of common stock,
shares of preferred stock or other securities, whether or not
issued by us, property or cash, or a combination of any of the
foregoing, will be set out in the accompanying prospectus
supplement. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at
our option, in which the securities, property or cash to be
received by the holders of the debt securities would be
calculated according to the factors and at such time as
described in the accompanying prospectus supplement.
Ranking
Senior
Debt Securities
Unless otherwise indicated in the applicable prospectus
supplement, our obligation to pay the principal of, and any
premium and interest on, the senior debt securities will be
unsecured and will rank equally with all of our other unsecured
unsubordinated indebtedness.
Subordinated
Debt Securities
Our obligation to pay the principal of, and any premium and
interest on, any subordinated debt securities will be unsecured
and will rank subordinate and junior in right of payment to all
of our senior indebtedness to the extent provided in the
subordinated indenture and the terms of those subordinated debt
securities, as described below and in any applicable prospectus
supplement, which may make deletions from, or modifications or
additions to, the subordination terms described below.
Upon any payment or distribution of our assets or securities to
creditors upon any liquidation, dissolution,
winding-up,
reorganization, or any bankruptcy, insolvency, receivership or
similar proceedings in connection with any insolvency or
bankruptcy proceeding of Apache, the holders of senior
indebtedness will first be entitled to receive payment in full
of the senior indebtedness before the holders of subordinated
debt securities will be entitled to receive any payment or
distribution in respect of the subordinated debt securities.
No payments on account of principal or any premium or interest
in respect of the subordinated debt securities may be made if
there has occurred and is continuing a default in any payment
with respect to senior indebtedness or an event of default with
respect to any senior indebtedness resulting in the acceleration
of its maturity, or if any judicial proceeding is pending with
respect to any default.
Indebtedness, for purposes of the subordinated
indenture, means:
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indebtedness for borrowed money or for the unpaid purchase price
of real or personal property of, or guaranteed by, Apache, other
than accounts payable arising in the ordinary course of business
payable on terms customary in the trade;
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indebtedness secured by any mortgage, lien, pledge, security
interest or encumbrances of any kind or payable out of the
proceeds of production from property;
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indebtedness which is evidenced by mortgages, notes, bonds,
securities, acceptances or other instruments;
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indebtedness which must be capitalized as liabilities under
generally accepted accounting principles;
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liabilities under interest rate swap, exchange, collar or cap
agreements and all other agreements or arrangements designed to
protect against fluctuations in interest rates or currency
exchange rates;
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liabilities under commodity hedge, commodity swap, exchange,
collar or cap agreements, fixed price agreements and all other
agreements or arrangements designed to protect against
fluctuations in oil and gas prices;
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guarantees and endorsements of obligations of others, directly
or indirectly, and all other repurchase agreements and
indebtedness in effect guaranteed through an agreement,
contingent or otherwise, to purchase that indebtedness, or to
purchase or sell property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of the indebtedness or to assure the owner of the
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indebtedness against loss, or to supply funds to or in any
manner invest in the debtor, or otherwise to assure a creditor
against loss (but excluding guarantees and endorsements of
notes, bills and checks made in the ordinary course of
business); and
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indebtedness relative to the amount of all letters of credit;
provided, however, that such term shall not include any amounts
included as deferred credits on our financial statements and
computed in accordance with generally accepted accounting
principles.
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Senior indebtedness, for purposes of the
subordinated indenture, means all indebtedness, whether
outstanding on the date of execution of the subordinated
indenture or thereafter created, assumed or incurred, except our
obligations under the subordinated debt securities, indebtedness
ranking equally with the subordinated debt securities or
indebtedness ranking junior to the subordinated debt securities.
Indebtedness ranking equally with the subordinated debt
securities, for purposes of the subordinated indenture,
means indebtedness, whether outstanding on the date of execution
of the subordinated indenture or thereafter created, assumed or
incurred, to the extent the indebtedness specifically by its
terms ranks equally with and not prior to the subordinated debt
securities in the right of payment upon the happening of the
dissolution,
winding-up,
liquidation or reorganization of Apache. The securing of any
indebtedness otherwise constituting indebtedness ranking equally
with the subordinated debt securities will not prevent the
indebtedness from constituting indebtedness ranking equally with
the subordinated debt securities.
Indebtedness ranking junior to the subordinated debt
securities, for purposes of the subordinated indenture,
means any indebtedness, whether outstanding on the date of
execution of the subordinated indenture or thereafter created,
assumed or incurred, to the extent the indebtedness by its terms
ranks junior to and not equally with or prior to
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the subordinated debt securities, and
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any other indebtedness ranking equally with the subordinated
debt securities, in right of payment upon the happening of the
dissolution,
winding-up,
liquidation or reorganization of Apache. The securing of any
indebtedness otherwise constituting indebtedness ranking junior
to the subordinated debt securities will not prevent the
indebtedness from constituting indebtedness ranking junior to
the subordinated debt securities.
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Dividends and other distributions to us from our various
subsidiaries may be subject to statutory, contractual and other
restrictions (including, without limitation, exchange controls
that may be applicable to foreign subsidiaries). The rights of
our creditors to participate in the assets of any subsidiary
upon that subsidiarys liquidation or recapitalization will
be subject to the prior claims of the subsidiarys
creditors, except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
Interest
Rates and Discounts
The debt securities will earn interest at a fixed or floating
rate or rates for the period or periods of time specified in the
applicable prospectus supplement. Unless we specify otherwise in
the applicable prospectus supplement, the debt securities will
bear interest on the basis of a
360-day year
consisting of twelve
30-day
months.
We may sell debt securities at a substantial discount below
their stated principal amount, bearing no interest or interest
at a rate that at the time of issuance is below market rates. We
will describe the federal income tax consequences and the
special considerations that apply to any series in the
applicable prospectus supplement.
Exchange,
Registration and Transfer
Registered securities of any series that are not global
securities will be exchangeable for other registered securities
of the same series and of like aggregate principal amount and
tenor in different authorized denominations. In addition, if
debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon
written request, and subject to the terms of the applicable
indenture, to
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exchange bearer securities and the appropriate related coupons
of that series into registered securities of the same series of
any authorized denominations and of like aggregate principal
amount and tenor. Bearer securities with attached coupons
surrendered in exchange for registered securities between a
regular record date or a special record date and the relevant
date for interest payment shall be surrendered without the
coupon relating to the interest payment date. Interest will not
be payable with respect to the registered security issued in
exchange for that bearer security. That interest will be payable
only to the holder of the coupon when due in accordance with the
terms of the indenture. Bearer securities will not be issued in
exchange for registered securities.
You may present registered securities for registration of
transfer, together with a duly executed form of transfer, at the
office of the security registrar or at the office of any
transfer agent designated by us for that purpose with respect to
any series of debt securities and referred to in the applicable
prospectus supplement. This may be done without service charge
but upon payment of any taxes and other governmental charges as
described in the applicable indenture. The security registrar or
the transfer agent will effect the transfer or exchange upon
being satisfied with the documents of title and identity of the
person making the request. We have appointed the trustee as
security registrar for each indenture. If a prospectus
supplement refers to any transfer agents initially designated by
us with respect to any series of debt securities in addition to
the security registrar, we may at any time rescind the
designation of any of those transfer agents or approve a change
in the location through which any of those transfer agents acts.
If, however, debt securities of a series are issuable solely as
registered securities, we will be required to maintain a
transfer agent in each place of payment for that series, and if
debt securities of a series are issuable as bearer securities,
we will be required to maintain a transfer agent in a place of
payment for that series located outside of the United States in
addition to the security registrar. We may at any time designate
additional transfer agents with respect to any series of debt
securities.
In the event of any redemption, we will not be required to:
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before any selection of debt securities of that
series to be redeemed and ending at the close of business on the
day of mailing of the relevant notice of redemption; or
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register the transfer of or exchange any registered security, or
portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part.
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Payment
and Paying Agents
Unless we specify otherwise in the applicable prospectus
supplement, payment of principal of, and any premium and
interest on, bearer securities will be payable in accordance
with any applicable laws and regulations, at the offices of
those paying agents outside the United States that we may
designate at various times. We will make interest payments on
bearer securities and the attached coupons on any interest
payment date only against surrender of the coupon relating to
that interest payment date. No payment with respect to any
bearer security will be made at any of our offices or agencies
in the United States or by check mailed to any U.S. address
or by transfer to an account maintained with a bank located in
the United States. If, however, but only if, payment in
U.S. dollars of the full amount of principal of, and any
premium and interest on, bearer securities denominated and
payable in U.S. dollars at all offices or agencies outside
the United States is illegal or effectively precluded by
exchange controls or other similar restrictions, then those
payments will be made at the office of our paying agent in the
Borough of Manhattan, The City of New York.
Unless we specify otherwise in the applicable prospectus
supplement, payment of principal of, and any premium and
interest on, registered securities will be made at the office of
the paying agent or paying agents that we designate at various
times. At our option, however, we may make interest payments by
check mailed to the address, as it appears in the security
register, of the person entitled to the payments. Unless we
specify otherwise in the applicable prospectus supplement, we
will make payment of any installment of interest on registered
securities to the person in whose name that registered security
is registered at the close of business on the regular record
date for such interest.
15
Unless we specify otherwise in the applicable prospectus
supplement, the Corporate Trust Office of the trustee in
the Borough of Manhattan, The City of New York, will be
designated:
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as our sole paying agent for payments with respect to debt
securities that are issuable solely as registered
securities; and
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as our paying agent in the Borough of Manhattan, The City of New
York, for payments with respect to debt securities, subject to
the limitation described above in the case of bearer securities,
that are issuable solely as bearer securities or as both
registered securities and bearer securities.
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We will name any paying agents outside the United States and any
other paying agents in the United States initially designated by
us for the debt securities in the applicable prospectus
supplement. We may at any time designate additional paying
agents or rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts. If,
however, debt securities of a series are issuable solely as
registered securities, we will be required to maintain a paying
agent in each place of payment for that series. If debt
securities of a series are issuable as bearer securities, we
will be required to maintain:
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a paying agent in the Borough of Manhattan, The City of New
York, for payments with respect to any registered securities of
the series and for payments with respect to bearer securities of
the series in the circumstance described above, but not
otherwise; and
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a paying agent in a place of payment located outside the United
States where debt securities of that series and any attached
coupons may be presented and surrendered for payment.
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If, however, the debt securities of that series are listed on
the London Stock Exchange, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, and if
the stock exchange requires it, we will maintain a paying agent
in London or Luxembourg or any other required city located
outside the United States for those debt securities.
All monies we pay to a paying agent for the payment of principal
of, and any premium or interest on, any debt security or coupon
that remains unclaimed at the end of two years after becoming
due and payable will be repaid to us. After that time, the
holder of the debt security or coupon will look only to us for
payments out of those repaid amounts.
Global
Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global certificates that we will
deposit with a depository identified in the applicable
prospectus supplement. Global securities may be issued in either
registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for
the individual debt securities it represents, a global security
may not be transferred except as a whole:
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by the applicable depository to a nominee of the depository;
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by any nominee to the depository itself or another nominee; or
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by the depository or any nominee to a successor depository or
any nominee of the successor.
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To the extent not described below and under the heading
Book-Entry Securities, we will describe the terms of
the depository arrangement with respect to a series of debt
securities in the applicable prospectus supplement. We
anticipate that the following provisions will generally apply to
depository arrangements.
As long as the depository for a global security, or its nominee,
is the registered owner of that global security, the depository
or nominee will be considered the sole owner or holder of the
debt securities represented by the global security for all
purposes under the applicable indenture. Except as provided
under Book-Entry Securities or in any applicable
prospectus supplement, owners of beneficial interests in a
global security:
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will not be entitled to have any of the underlying debt
securities registered in their names;
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will not receive or be entitled to receive physical delivery of
any of the underlying debt securities in definitive
form; and
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will not be considered the owners or holders under the indenture
relating to those debt securities.
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The laws of some states require that some purchasers of
securities take physical delivery of securities in definitive
form. These laws may impair your ability to transfer beneficial
interests in a global security.
Payments of principal of, and any premium and interest on,
individual debt securities represented by a global security
registered in the name of a depository or its nominee will be
made to the depository or its nominee as the registered owner of
the global security representing such debt securities. Neither
we, the trustee, any paying agent nor the registrar for the debt
securities will be responsible for any aspect of the records
relating to or payments made by the depository or any
participants on account of beneficial interests of the global
security.
For a description of the depository arrangements for global
securities held by The Depository Trust Company, see
Book-Entry Securities.
The
Senior Indenture Limits Our Ability to Incur Liens
Unless we specify otherwise in the applicable prospectus
supplement, the senior indenture provides that neither we nor
any of our subsidiaries may issue, assume or guarantee any
notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed that are secured by a mortgage,
lien, pledge, security interest or other encumbrance
defined in the senior indenture as liens
upon any of our property unless we provide that any and all
senior debt securities then outstanding shall be secured by a
lien equally and ratably with any and all other obligations by
the lien. The restrictions on liens will not, however, apply to:
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liens existing on the date of the senior indenture or provided
for under the terms of agreements existing on the date thereof;
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liens securing all or part of the cost of exploring, producing,
gathering, processing, marketing, drilling or developing any of
our or our subsidiaries properties, or securing
indebtedness incurred to provide funds therefor or indebtedness
incurred to finance all or part of the cost of acquiring,
constructing, altering, improving or repairing any such property
or assets, or improvements used in connection with such
property, or securing indebtedness incurred to provide funds
therefor;
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liens securing only indebtedness owed by one of our subsidiaries
to us and/or
to one or more of our other subsidiaries;
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liens on the property of any corporation or other entity
existing at the time it becomes our subsidiary;
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liens on any property to secure indebtedness incurred in
connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of
industrial revenue bond financing or indebtedness issued or
guaranteed by the United States, any state or any department,
agency or instrumentality of either or indebtedness issued to or
guaranteed by a foreign government, any state or any department,
agency or instrumentality of either or an international finance
agency or any division or department thereof, including the
World Bank, the International Finance Corp. and the Multilateral
Investment Guarantee Agency;
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any extension, renewal or replacement or successive extensions,
renewals or replacements of any lien referred to in the
foregoing clauses that existed on the date of the senior
indenture;
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other ordinary course liens, as defined in the
senior indenture, incurred in the ordinary course of our
business; or
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liens which secure limited recourse indebtedness, as
defined in the senior indenture.
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Notwithstanding the limitations on liens described above, we and
any one or more of our subsidiaries may issue, assume or
guarantee the following indebtedness secured by liens on assets
without regard to the limitations described above: indebtedness
in any aggregate principal amount that, together with the
aggregate
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outstanding principal amount of all our other indebtedness and
indebtedness of any of our subsidiaries so secured (excluding
indebtedness secured by the permitted liens described above),
and the aggregate amount of sale/leaseback transaction
obligations that would otherwise be subject to the limitations
on sale/leaseback transactions described below, does not at the
time such indebtedness is incurred exceed 10 percent of our
consolidated net worth as shown on our most recent audited
consolidated balance sheet.
In addition, the following types of transactions, among others,
shall not be deemed to create indebtedness secured by liens:
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the sale, granting of liens with respect to or other transfer of
crude oil, natural gas or other petroleum hydrocarbons in place
for a period of time until, or in an amount such that, the
transferee will receive as a result of the transfer a specified
amount of money or of such crude oil, natural gas or other
petroleum hydrocarbons;
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the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment,
overriding royalty, forward sale or similar interest; and
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the granting of liens required by any contract or statute in
order to permit us or one of our subsidiaries to perform any
contract or subcontract made with or at the request of the
U.S. government or any foreign government or international
finance agency, any state or any department thereof, or any
agency or instrumentality of either, or to secure partial,
progress, advance or other payments to us or one of our
subsidiaries by any of these entities pursuant to the provisions
of any contract or statute.
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The
Senior Indenture Limits Our Ability to Engage in Sale/Leaseback
Transactions
Unless we specify otherwise in the applicable prospectus
supplement, the senior indenture provides that neither we nor
any of our subsidiaries will enter into any arrangement with any
person, other than us or one of our subsidiaries, to lease any
property to ourselves or a subsidiary of ours for more than
three years. For the restriction to apply, we or one of our
subsidiaries must sell or plan to sell the property to the
person leasing it to us or our subsidiary or to another person
to which funds have been or are to be advanced on the security
of the leased property. The limitation does not apply where:
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either we or our subsidiary would be entitled to create debt
secured by a lien on the property to be leased in a principal
amount equal to or exceeding the value of that sale/leaseback
transaction;
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since the date of the senior indenture and within a period
commencing six months prior to the consummation of that
arrangement and ending six months after the consummation of the
arrangement, we have or our subsidiary has expended for any
property an amount up to the net proceeds of that arrangement,
including amounts expended for the acquisition, exploration,
drilling or development thereof, and for additions, alterations,
improvements and repairs to the property, and we designate such
amount as a credit against that arrangement, with any of that
amount not being so designated to be applied as set forth in the
next item below; or
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during or immediately after the expiration of the 12 months
after the effective date of that transaction, we apply to the
voluntary redemption, defeasance or retirement of the senior
debt securities and other senior indebtedness, as defined in the
senior indenture, an amount equal to the greater of the net
proceeds of the sale or transfer of the property leased in that
transaction and the fair value of such property at the time of
entering into such transaction, in either case adjusted to
reflect the remaining term of the lease and any amount we
utilize as set forth in the prior item; the amount will be
reduced by the principal amount of other senior indebtedness we
voluntarily retire within that
12-month
period.
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Each
Indenture Includes Events of Default
Unless otherwise specified in the applicable prospectus
supplement, any one of the following events will constitute an
event of default under each indenture with respect
to the debt securities of any series issued under that indenture:
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if we fail to pay any interest on any debt security of that
series when due, and the failure continues for 30 days;
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if we fail to pay principal of or any premium on the debt
securities of that series when due and payable, either at
maturity or otherwise;
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if we fail to perform or we breach any of our other covenants or
warranties in the applicable indenture or in the debt securities
of that series other than a covenant or warranty
included in the applicable indenture solely for the benefit of a
series of securities other than the debt securities of that
series and that breach of failure continues for
60 days after written notice as provided in the applicable
indenture;
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specified events of voluntary or involuntary bankruptcy,
insolvency or reorganization involving us or any of our
subsidiaries; or
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any other event of default provided with respect to the debt
securities of that series.
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Unless otherwise specified in the applicable prospectus
supplement, either of the following two events will also
constitute an event of default under the senior
indenture with respect to any senior debt securities:
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if any of our or any of our subsidiaries indebtedness, as
defined in the senior indenture, in excess of an aggregate of
$25,000,000 in principal amount is accelerated under any event
of default as defined in any mortgage, indenture or instrument
and the acceleration has not been rescinded or annulled within
30 days after written notice as provided in the senior
indenture has been given specifying such event of default and
requiring us to cause that acceleration to be rescinded or
annulled; or
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if we or any of our subsidiaries fail to pay, bond or otherwise
discharge within 60 days of entry, a judgment, court order
or uninsured monetary damage award against us in excess of an
aggregate of $25,000,000 which is not stayed on appeal or
otherwise being appropriately contested in good faith.
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If an event of default with respect to the debt securities of
any series, other than an event of default described in the item
above pertaining to events of bankruptcy, insolvency or
reorganization, occurs and is continuing, either the trustee or
the holders of at least 25 percent in aggregate principal
amount of the outstanding debt securities of that series may
declare the principal amount of the debt securities of that
series to be due and payable immediately. At any time after a
declaration of acceleration has been made, but before a judgment
or decree for payment of money due has been obtained by the
trustee, and subject to applicable law and other provisions of
the applicable indenture, the holders of a majority in aggregate
principal amount of the debt securities of that series may,
under some circumstances, rescind and annul such acceleration.
If an event of default occurs pertaining to events of
bankruptcy, insolvency or reorganization, the principal amount
and accrued interest or a lesser amount as provided
for in the debt securities of that series shall be
immediately due and payable without any declaration or other act
by the trustee or any holder.
Within 90 days after the occurrence of any default under an
indenture with respect to the debt securities of any series
issued under that indenture, the trustee must transmit notice of
the default to the holders of the debt securities of that series
unless the default has been cured or waived. The trustee may
withhold the notice, however, except in the case of a payment
default, if and so long as the board of directors, the executive
committee or a trust committee of directors or responsible
officers of the trustee has in good faith determined that the
withholding of the notice is in the interest of the holders of
debt securities of that series.
If an event of default occurs and is continuing with respect to
the debt securities of any series, the trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the holders of debt securities of that series by all
appropriate judicial proceedings.
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Subject to the duty of the trustee during any default to act
with the required standard of care, the trustee is under no
obligation to exercise any of its rights or powers under an
indenture at the request or direction of any of the holders of
debt securities issued under that indenture, unless the holders
offer the trustee reasonable indemnity. Subject to indemnifying
the trustee, and subject to applicable law and other provisions
of each indenture, the holders of a majority in aggregate
principal amount of the outstanding debt securities of a series
issued under that indenture may direct the time, method and
place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series.
We Are
Obligated to Purchase Debt Securities Upon a Change in
Control
If a change in control, as defined in each indenture, occurs, we
must mail within 15 days a written notice regarding the
change in control to the trustee and to every holder of the debt
securities of each series issued under that indenture. The
notice must also be published at least once in an authorized
newspaper, as defined in each indenture, and must state:
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the events causing the change in control and the date of the
change in control;
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the date by which notice of the change in control is required by
the applicable indenture to be given;
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the date, 35 business days after the occurrence of the change in
control, by which we must purchase debt securities we are
obligated to purchase pursuant to the selling holders
exercise of rights on change in control;
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the price we must pay for the debt securities we are obligated
to purchase;
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the name and address of the trustee;
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the procedure for surrendering debt securities to the trustee or
other designated office or agency for payment;
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a statement of our obligation to make prompt payment on proper
surrender of the debt securities;
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the procedure for holders exercise of rights of sale of
the debt securities; and
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the procedures by which a holder may withdraw such a notice
after it is given.
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After we give this notice we will be obligated, at the election
of each holder, to purchase the applicable debt securities.
Under each indenture, a change in control is deemed to have
occurred when:
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any event requiring the filing of any report under or in
response to Schedule 13D or 14D-1 pursuant to the
Securities Exchange Act of 1934 disclosing beneficial ownership
of either 50 percent or more of our common stock then
outstanding or 50 percent or more of the voting power of
our voting stock then outstanding;
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the completion of any sale, transfer, lease, or conveyance of
our properties and assets substantially as an entirety to any
person or persons that is not our subsidiary, as those terms are
defined in each indenture; or
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the completion of a consolidation or merger of Apache with or
into any other person or entity in a transaction in which either
we are not the sole surviving corporation or our common stock
existing before the transaction is converted into cash,
securities or other property and in which those exchanging our
common stock do not, as a result of the transaction, receive
either 75 percent or more of the survivors common
stock or 75 percent or more of the voting power of the
survivors voting stock.
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We will not purchase any debt securities if there has occurred
and is continuing an event of default under either indenture,
other than default in payment of the purchase price payable for
the debt securities upon change in control. In connection with
any purchase of debt securities after a change in control, we
will comply with all federal and state securities laws,
including, specifically,
Rule 13e-4,
if applicable, under the Securities Exchange Act of 1934, and
any related
Schedule 13E-4
required to be submitted under that rule.
20
Discharge,
Defeasance and Covenant Defeasance
We may discharge our obligations to holders of any series of
debt securities that have not already been delivered to the
trustee for cancellation and that:
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have become due and payable;
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will become due and payable within one year; or
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are scheduled for redemption within one year.
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To discharge the obligations with respect to a series of debt
securities, we must deposit with the trustee, in trust, an
amount of funds in U.S. dollars or in the foreign currency
in which those debt securities are payable sufficient to pay the
entire amount of principal of, and any premium or interest on,
those debt securities to the date of the deposit if those debt
securities have become due and payable or to the maturity of the
debt securities, as the case may be.
Unless we specify otherwise in the applicable prospectus
supplement, we may elect
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to defease and be discharged from any and all obligations with
respect to those debt securities, which we refer to as
legal defeasance; or
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with respect to any senior debt securities, to be released from
our obligations under the covenants described above in The
Senior Indenture Limits Our Ability to Incur Liens,
The Senior Indenture Limits Our Ability to Engage in Sale/
Leaseback Transactions or, with respect to any debt
securities, any other covenant obligation as may be provided for
under Section 301 of the applicable indenture and specified
in the applicable prospectus supplement, which we refer to as
covenant defeasance.
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In the case of discharge of our obligations or legal defeasance
we will still retain some obligations in respect of the debt
securities, including our obligations:
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to pay additional amounts, if any, upon the occurrence of
specified events of taxation, assessment or governmental charge
with respect to payments on the debt securities;
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to register the transfer or exchange of the debt securities;
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to replace temporary or mutilated, destroyed, lost or stolen
debt securities; and
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to maintain an office or agency with respect to the debt
securities and to hold monies for payment in trust.
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After a covenant defeasance, any omission to comply with the
obligations or covenants that have been defeased shall not
constitute a default or an event of default with respect to the
debt securities.
To elect either legal defeasance or covenant defeasance we must
deposit with the trustee, in trust, an amount, in
U.S. dollars or in the foreign currency in which the
relevant debt securities are payable at stated maturity, or in
government obligations, as defined below, or both, applicable to
such debt securities which through the scheduled payment of
principal and interest in accordance with their terms will
provide money in an amount sufficient to pay the principal of
and any premium and interest on those debt securities on their
scheduled due dates.
In addition, we can only elect legal defeasance or covenant
defeasance if, among other things:
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the applicable defeasance does not result in a breach or
violation of, or constitute a default under, the applicable
indenture or any other material agreement or instrument to which
we are a party or by which we are bound;
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no default or event of default with respect to the debt
securities to be defeased shall have occurred and be continuing
on the date of the establishment of the trust and, with respect
to legal defeasance only, at any time during the period ending
on the 91st day after the date of the establishment of the
trust; and
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we have delivered to the trustee an opinion of counsel to the
effect that the holders of the debt securities will not
recognize income, gain or loss for U.S. federal income tax
purposes as a result of the defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the
defeasance had not occurred, and the opinion of counsel, in the
case of legal defeasance, must refer to and be based upon a
letter ruling of the Internal Revenue Service received by us, a
Revenue Ruling published by the Internal Revenue Service or a
change in applicable U.S. federal income tax law occurring
after the date of the applicable indenture.
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Each of the indentures deems a foreign currency to be any
currency, currency unit or composite currency issued by the
government of one or more countries other than the United States
or by any recognized confederation or association of governments.
Each of the indentures defines government obligations as
securities which are not callable or redeemable at the option of
the issuer or issuers and are:
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direct obligations of the United States or the government or the
governments in the confederation that issued the foreign
currency in which the debt securities of a particular series are
payable, for the payment of which its full faith and credit is
pledged; or
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obligations of a person or entity controlled or supervised by
and acting as an agency or instrumentality of the United States
or the government or governments that issued the foreign
currency in which the debt securities of a particular series are
payable, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States or that other government or governments.
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Government obligations also include a depositary receipt issued
by a bank or trust company as custodian with respect to any
government obligation described above or a specific payment of
interest on or principal of or any other amount with respect to
any government obligation held by that custodian for the account
of the holder of such depositary receipt, as long as, except as
required by law, that custodian is not authorized to make any
deduction from the amount payable to the holder of the
depositary receipt from any amount received by the custodian
with respect to the government obligation or the specific
payment of interest on or principal of or any other amount with
respect to the government obligation evidenced by the depositary
receipt.
Unless otherwise specified in the applicable prospectus
supplement, if, after we have deposited funds
and/or
government obligations to effect legal defeasance or covenant
defeasance with respect to debt securities of any series, either:
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the holder of a debt security of that series is entitled to, and
does, elect to receive payment in a currency other than that in
which such deposit has been made in respect of that debt
security; or
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a conversion event, as defined below, occurs in respect of the
foreign currency in which the deposit has been made, the
indebtedness represented by that debt security shall be deemed
to have been, and will be, fully discharged and satisfied
through the payment of the principal of, and any premium and
interest on, that debt security as that debt security becomes
due out of the proceeds yielded by converting the amount or
other properties so deposited in respect of that debt security
into the currency in which that debt security becomes payable as
a result of the election or conversion event based on:
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in the case of payments made pursuant to the first of the two
items in the list above, the applicable market exchange rate for
the currency in effect on the second business day prior to the
date of the payment; or
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with respect to a conversion event, the applicable market
exchange rate for such foreign currency in effect, as nearly as
feasible, at the time of the conversion event.
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Each indenture defines a conversion event as the
cessation of use of:
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a foreign currency other than the euro both by the government of
the country or the confederation which issued such foreign
currency and for the settlement of transactions by a central
bank or other public institutions of or within the international
banking community; or
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the euro both by governments within the Euro Zone and for the
settlement of transactions by central banks or other public
institutions of or within the Euro Zone or of or within the
international banking community.
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Unless otherwise provided in the applicable prospectus
supplement, all payments of principal of, and any premium and
interest on, any debt security that are payable in a foreign
currency that ceases to be used by the government or
confederation of issuance shall be made in U.S. dollars.
If we effect a covenant defeasance with respect to any debt
securities and the debt securities are declared due and payable
because of the occurrence of any event of default other than an
event of default with respect to which there has been covenant
defeasance, the amount in the foreign currency in which the debt
securities are payable, and government obligations on deposit
with the trustee, will be sufficient to pay amounts due on the
debt securities at the time of the stated maturity but may not
be sufficient to pay amounts due on the debt securities at the
time of the acceleration resulting from the event of default. We
would remain liable, however, for payment of the amounts due at
the time of acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the debt securities of or
within a particular series.
Under each indenture, we are required to furnish to the trustee
annually a statement as to our performance of our obligations
under the indenture and as to any default in such performance.
We are also required to deliver to the trustee, within five days
after occurrence thereof, written notice of any event of default
or event that after notice or lapse of time or both would
constitute an event of default.
Modification
and Waiver
We and the trustee may, without the consent of holders, modify
provisions of each indenture for specified purposes, including,
among other things, curing ambiguities and maintaining the
qualification of the applicable indenture under the Trust
Indenture Act. We and the trustee may modify other provisions of
each indenture with the consent of the holders of not less than
two-thirds, in the case of the senior indenture, or a majority,
in the case of the subordinate indenture, in aggregate principal
amount of the debt securities of each series issued under that
indenture affected by the modification, except that the
provisions of the indentures, however, may not be modified
without the consent of the holder of each debt security affected
thereby if the modification would:
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change the stated maturity or any installment of the principal
of, or any premium or interest on, or any installment of
principal, or any additional amounts with respect to, any debt
security issued under that indenture;
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reduce the principal amount of, or premium or interest on, or
any additional amounts with respect to, any debt security issued
under that indenture;
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change the coin or currency in which any debt security issued
under that indenture or any premium or any interest on that debt
security or any additional amounts with respect to that debt
security is payable;
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if the debt securities are convertible or exchangeable, modify
the conversion or exchange provision in a manner adverse to
holders of that debt security;
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in the case of a subordinated debt security, modify any of the
subordination provisions in a manner adverse to holders of that
debt security;
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impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of any debt securities
issued under that indenture or, in the case of redemption,
exchange or conversion, if applicable, on or after the
redemption, exchange or conversion date or, in the case of
repayment at the option of any holder, if applicable, on or
after the date for repayment or in the case of a change in
control, after the change in control purchase date;
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reduce the percentage and principal amount of the outstanding
debt securities, the consent of whose holders is required under
that indenture in order to take specified actions;
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change any of our obligations to maintain an office or agency in
the places and for the purposes required by that
indenture; or
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modify any of the above provisions.
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The holders of at least a majority in aggregate principal amount
of debt securities of any series issued under one of the
indentures may, on behalf of the holders of all debt securities
of that series, waive our compliance with specified restrictive
provisions of that indenture. The holders of not less than a
majority in aggregate principal amount of debt securities of any
series issued under one of the indentures may, on behalf of all
holders of debt securities of that series, waive any past
default and its consequences under that indenture with respect
to the debt securities of that series, except:
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a payment default with respect to debt securities of that
series; or
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a default of a covenant or provision of that indenture that
cannot be modified or amended without the consent of the holder
of the debt securities of that series.
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Consolidation,
Merger and Sale of Assets
We may, without the consent of the holders of the debt
securities, consolidate or merge with or into, or convey,
transfer or lease our properties and assets as an entirety, or
substantially as an entirety to, any person that is a
corporation or limited liability company organized and validly
existing under the laws of any domestic jurisdiction. We may
also permit any of those persons to consolidate with or merge
into us or convey, transfer or lease its properties and assets
substantially as an entirety to us, as long as:
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any successor person assumes our obligations on the debt
securities;
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no event of default under the applicable indenture has occurred
and is continuing after giving effect to the transaction;
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no event which, after notice or lapse of time or both, would
become an event of default under the applicable indenture has
occurred and is continuing after giving effect to the
transaction; and
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other conditions are met.
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DESCRIPTION
OF COMMON STOCK PURCHASE CONTRACTS AND UNITS
We may issue stock purchase contracts, representing contracts
entitling or obligating holders to purchase from or sell to us,
and us to sell to or purchase from the holders, a specified
number of shares of common stock at a future date or dates. The
price per share of common stock may be fixed at the time the
contracts are issued or may be determined by reference to a
specific formula set forth in the contracts. The common stock
purchase contracts may be issued separately or as a part of
units, which are referred to in this prospectus as common
stock purchase units, consisting of a common stock
purchase contract and, as security for the holders
obligations to purchase the common stock under the contracts,
the following:
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our senior debt securities or subordinated debt securities;
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our preferred stock;
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debt obligations of third parties, including U.S. Treasury
securities;
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senior or subordinated debt securities of Apache Australia,
Apache Canada
and/or
Apache Canada II;
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any other security described in the applicable prospectus
supplement; or
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any combination of the foregoing.
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The common stock purchase contracts may require us to make
periodic payments to the holders of the common stock purchase
units or vice versa, and such payments may be unsecured or
prefunded on some basis. The common stock purchase contracts may
require holders to secure their obligations thereunder in a
specified manner, and in some circumstances we may deliver newly
issued prepaid common stock purchase contracts, which are
referred to as prepaid securities, upon release to a
holder of any collateral securing such holders obligations
under the original contract.
The applicable prospectus supplement will describe the terms of
any common stock purchase contracts or units and, if applicable,
prepaid securities. The description in the prospectus supplement
will not purport to be complete and will be qualified in its
entirety by reference to the contracts, the collateral
arrangements and depositary arrangements, if applicable,
relating to such contracts or units and, if applicable, the
prepaid securities and the document pursuant to which such
prepaid securities will be issued.
DESCRIPTION
OF APACHE FINANCE, APACHE AUSTRALIA, APACHE CANADA
AND APACHE CANADA II DEBT SECURITIES AND APACHE
GUARANTEE
The following description, together with any applicable
prospectus supplement, summarizes all the material terms and
provisions of the debt securities that Apache Finance, Apache
Australia, Apache Canada
and/or
Apache Canada II, each of which we refer to in this section
as the applicable issuer, and the guarantee we may
offer under this prospectus and the related trust indentures.
The applicable issuer, unless the applicable issuer is Apache
Finance, will issue senior debt securities, and we will issue
our guarantee, under a senior indenture to be executed in the
future by us, as guarantor, the applicable issuer and The Bank
of New York Mellon Trust Company, N.A., as trustee. Apache
Finance will issue senior debt securities, and we will issue our
guarantee, under a senior indenture, dated as of
December 7, 1997, between Apache Finance, us, as guarantor,
and The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company,
N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee. The senior indentures are
collectively referred to in this section as the senior
indentures. The senior debt securities of Apache Finance,
Apache Australia, Apache Canada and Apache Canada II are
collectively referred to in this section as the senior
debt securities.
The applicable issuer will issue the subordinated debt
securities, and we will issue our guarantee, under a
subordinated indenture to be executed in the future by us, as
guarantor, the applicable issuer and The Bank of New York Mellon
Trust Company, N.A., as trustee. The subordinated indentures are
collectively referred to in this section as the
subordinated indentures. The subordinated debt
securities of Apache Finance, Apache Australia, Apache Canada
and Apache Canada II are collectively referred to in this
section as the subordinated debt securities.
The senior indentures and the subordinated indentures are
together referred to in this section as the
indentures, and the senior debt securities and the
subordinated debt securities are together referred to in this
section as the debt securities. The indentures
contain and the debt securities, when issued, will contain
additional important terms and provisions. The Bank of New York
Mellon Trust Company, N.A., or any successor, in its capacity as
trustee under any or all of the indentures, is referred to as
the trustee for purposes of this section. A form of
each indenture is, and prior to their issuance, the debt
securities will be, filed as an exhibit to the registration
statement that includes this prospectus.
This summary of the indentures and the debt securities relates
to terms and conditions applicable to the debt securities
generally. The particular terms of any series of debt securities
will be summarized in the applicable prospectus supplement. If
indicated in the prospectus supplement, the terms of any series
may differ from the terms summarized below.
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None of the indentures limits the amount of debt securities the
applicable issuer may issue under it, and each provides that
additional debt securities of any series may be issued up to the
aggregate principal amount that we and the applicable issuer
authorize from time to time. Debt securities may also be issued
pursuant to the indentures in transactions exempt from the
registration requirements of the Securities Act. Those debt
securities will not be considered in determining the aggregate
amount of securities issued under this prospectus.
Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will be issued in denominations
of $1,000 or integral multiples of $1,000.
Other than as described below under The Senior Indentures
Limit Our and the Applicable Issuers Ability to Incur
Liens, The Senior Indentures Limit Our and the
Applicable Issuers Ability to Engage in Sale/Leaseback
Transactions and The Applicable Issuer is Obligated
to Purchase Debt Securities upon a Change in Control, and
as may be described in the applicable prospectus supplement, the
indentures do not limit our ability to incur indebtedness or
afford holders of debt securities protection in the event of a
decline in our credit quality or if we are involved in a
takeover, recapitalization or highly leveraged or similar
transaction. Nothing in the indentures or the debt securities
will in any way limit the amount of indebtedness or securities
that we, the applicable issuer or our other subsidiaries, as
defined in the indentures, may incur or issue.
General
The prospectus supplement relating to the particular series of
debt securities being offered will specify the applicable issuer
and whether they are senior or subordinated debt securities and
the amounts, prices and terms of those debt securities. These
terms may include:
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the designation, aggregate principal amount and authorized
denominations of the debt securities;
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the date or dates on which the debt securities will mature;
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the percentage of the principal amount at which the debt
securities will be issued;
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the date on which the principal of the debt securities will be
payable;
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whether the debt securities will be issued as registered
securities, bearer securities or a combination of the two;
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whether the debt securities will be issued in the form of one or
more global securities and whether such global securities will
be issued in a temporary global form or permanent global form;
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the currency or currencies or currency unit or units of two or
more currencies in which debt securities are denominated, for
which they may be purchased, and in which principal and any
premium and interest is payable;
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if the currency or currencies or currency unit or units for
which debt securities may be purchased or in which principal and
any premium and interest may be paid is at the applicable
issuers election or at the election of a purchaser, the
manner in which an election may be made and its terms;
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the annual rate or rates, which may be fixed or variable, or the
method of determining the rate or rates at which the debt
securities will bear any interest, whether by remarketing,
auction, formula or otherwise;
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the date or dates from which any interest will accrue and the
date or dates on which such interest will be payable;
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a description of any provisions providing for redemption,
exchange or conversion of the debt securities at the applicable
issuers option, a holders option or otherwise, and
the terms and provisions of such a redemption, exchange or
conversion;
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information with respect to book-entry procedures relating to
global debt securities;
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sinking fund terms;
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if the provisions providing that the applicable issuer will pay
additional amounts, as defined in the indentures, on
the debt securities to any holder who is a United States
alien, as defined in the indentures, in respect of any
tax, assessment or governmental charge and that the applicable
issuer will have the option to redeem the debt securities rather
than pay any additional amounts are not applicable to the debt
securities, or any deletions from, or modifications or additions
to, those provisions. The term interest, as used in
this prospectus, includes any additional amounts;
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any modifications or additions to, or deletions of, any of the
events of default or covenants of Apache or the applicable
issuer with respect to the debt securities that are described in
this section;
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if either or both of the sections of the applicable indenture
relating to defeasance and covenant defeasance are not
applicable to the debt securities, or if any covenants in
addition to or other than those specified in the applicable
indenture shall be subject to covenant defeasance;
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any deletions from, or modifications or additions to, the
provisions of the indentures relating to satisfaction and
discharge in respect of the debt securities;
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any index or other method used to determine the amount of
payments of principal of, and any premium and interest on, the
debt securities; and
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any other specific terms of the debt securities.
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The applicable issuer is not obligated to issue all debt
securities of any one series at the same time and, unless the
applicable issuer specifies otherwise in the applicable
prospectus supplement, a series of debt securities may be
reopened for additional issuances of debt securities of that
series or to establish additional terms of that series. The debt
securities of any one series may not bear interest at the same
rate or mature on the same date.
If any of the debt securities are sold for foreign currencies or
foreign currency units or if the principal of, or any premium or
interest on, any series of debt securities is payable in foreign
currencies or foreign currency units, we will describe the
restrictions, elections, tax consequences, specific terms and
other information with respect to those debt securities and such
foreign currencies or foreign currency units in the applicable
prospectus supplement.
Guarantees
We will irrevocably and unconditionally guarantee to each holder
of a debt security issued by the applicable issuer and
authenticated and delivered by the trustee the due and punctual
payment of the principal of, and any premium and interest on,
the debt security, when and as it becomes due and payable,
whether at maturity, upon acceleration, by call for redemption,
repayment or otherwise in accordance with the terms of the debt
securities and of the applicable indenture. We will
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agree that, if an event of default occurs under the debt
securities, our obligations under the guarantees will be as if
we had issued the debt securities, and will be enforceable
irrespective of any invalidity, irregularity or unenforceability
of any series of the debt securities or the indenture or any
supplement thereto; and
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waive our right to require the trustee or the holders to pursue
or exhaust their legal or equitable remedies against the
applicable issuer before exercising their rights under the
guarantees.
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Conversion
and Exchange
The terms, if any, on which the debt securities of any series
are convertible into or exchangeable for shares of common stock,
shares of preferred stock or other securities, whether or not
issued by us or the applicable issuer, property or cash, or a
combination of any of the foregoing, will be set out in the
accompanying prospectus supplement. Such terms may include
provisions for conversion or exchange, either mandatory, at the
option of the holder, or at our option or the option of the
applicable issuer, in which the
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securities, property or cash to be received by the holders of
the debt securities would be calculated according to the factors
and at such time as described in the accompanying prospectus
supplement.
Ranking
Senior
Debt Securities
Unless otherwise indicated in the applicable prospectus
supplement, the applicable issuers obligation to pay the
principal of, and any premium and interest on, its senior debt
securities will be unsecured and will rank equally with all of
the applicable issuers other unsecured unsubordinated
indebtedness.
Subordinated
Debt Securities
The applicable issuers obligation to pay the principal of,
and any premium and interest on any subordinated debt securities
will be unsecured and will rank subordinate and junior in right
of payment to all of that issuers senior indebtedness to
the extent provided in the subordinated indenture and the terms
of those subordinated debt securities, as described below and in
any applicable prospectus supplement, which may make deletions
from, or modifications or additions to, the subordination terms
described below.
Upon any payment or distribution of the applicable issuers
assets or securities to creditors upon any liquidation,
dissolution,
winding-up,
reorganization, or any bankruptcy, insolvency, receivership or
similar proceedings in connection with any insolvency or
bankruptcy proceeding of the applicable issuer, the holders of
senior indebtedness of the applicable issuer will first be
entitled to receive payment in full of the senior indebtedness
before the holders of subordinated debt securities will be
entitled to receive any payment or distribution in respect of
the subordinated debt securities.
No payments on account of principal or any premium or interest
in respect of the subordinated debt securities may be made if
there has occurred and is continuing a default in any payment
with respect to senior indebtedness or an event of default with
respect to any senior indebtedness resulting in the acceleration
of its maturity, or if any judicial proceeding is pending with
respect to any default.
Indebtedness of the applicable issuer, for purposes
of each subordinated indenture, means:
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indebtedness for borrowed money or for the unpaid purchase price
of real or personal property of, or guaranteed by, the
applicable issuer, other than accounts payable arising in the
ordinary course of business payable on terms customary in the
trade;
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indebtedness secured by any mortgage, lien, pledge, security
interest or encumbrances of any kind or payable out of the
proceeds of production from property;
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indebtedness which is evidenced by mortgages, notes, bonds,
securities, acceptances or other instruments;
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indebtedness which must be capitalized as liabilities under
generally accepted accounting principles;
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liabilities under interest rate swap, exchange, collar or cap
agreements and all other agreements or arrangements designed to
protect against fluctuations in interest rates or currency
exchange rates;
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liabilities under commodity hedge, commodity swap, exchange,
collar or cap agreements, fixed price agreements and all other
agreements or arrangements designed to protect against
fluctuations in oil and gas prices;
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guarantees and endorsements of obligations of others, directly
or indirectly, and all other repurchase agreements and
indebtedness in effect guaranteed through an agreement,
contingent or otherwise, to purchase that indebtedness, or to
purchase or sell property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of the indebtedness or to assure the owner of the indebtedness
against loss, or to supply funds to or in any manner invest in
the debtor, or otherwise to assure a creditor against loss (but
excluding guarantees and endorsements of notes, bills and checks
made in the ordinary course of business); and
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indebtedness relative to the amount of all letters of credit;
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provided, however, that such term shall not include any
amounts included as deferred credits on the financial statements
of Apache and computed in accordance with generally accepted
accounting principles.
Senior indebtedness of the applicable issuer, for
purposes of each subordinated indenture, means all indebtedness,
whether outstanding on the date of execution of the subordinated
indenture or thereafter created, assumed or incurred, except the
applicable issuers obligation under the subordinated debt
securities, indebtedness ranking equally with the subordinated
debt securities or indebtedness ranking junior to the
subordinated debt securities.
Indebtedness ranking equally with the subordinated debt
securities of the applicable issuer, for purposes of each
subordinated indenture, means indebtedness, whether outstanding
on the date of execution of the subordinated indenture or
thereafter created, assumed or incurred, to the extent the
indebtedness specifically by its terms ranks equally with and
not prior to the subordinated debt securities in the right of
payment upon the happening of the dissolution,
winding-up,
liquidation or reorganization of the applicable issuer. The
securing of any indebtedness otherwise constituting indebtedness
ranking equally with the subordinated debt securities will not
prevent the indebtedness from constituting indebtedness ranking
equally with the subordinated debt securities.
Indebtedness ranking junior to the subordinated debt
securities of the applicable issuer, for purposes of each
subordinated indenture, means any indebtedness, whether
outstanding on the date of execution of the subordinated
indenture or thereafter created, assumed or incurred, to the
extent the indebtedness by its terms ranks junior to and not
equally with or prior to
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the subordinated debt securities, and
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any other indebtedness ranking equally with the subordinated
debt securities,
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in right of payment upon the happening of the dissolution,
winding-up,
liquidation or reorganization of the applicable issuer. The
securing of any indebtedness otherwise constituting indebtedness
ranking junior to the subordinated debt securities will not
prevent the indebtedness from constituting indebtedness ranking
junior to the subordinated debt securities.
Guarantees
Unless we provide otherwise in the applicable prospectus
supplement,
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our guarantee of the senior debt securities of any particular
series of the applicable issuer will be our unsecured obligation
and will rank equally with all of our other unsecured and
unsubordinated indebtedness (including our senior debt
securities); and
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our guarantee of the subordinated debt securities of any
particular series of the applicable issuer will be our unsecured
obligation, subordinated in right of payment to the prior
payment in full of all of the Apache senior indebtedness (which
term includes our senior debt securities and our guarantee of
the senior debt securities of the applicable issuer) with
respect to such series as described below and in the applicable
prospectus supplement, which may make deletions from, or
modifications or additions to, the subordination terms described
below.
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Dividends and other distributions to us from our various
subsidiaries may be subject to statutory, contractual and other
restrictions (including, without limitation, exchange controls
that may be applicable to foreign subsidiaries). The rights of
our creditors to participate in the assets of any subsidiary
upon that subsidiarys liquidation or recapitalization will
be subject to the prior claims of the subsidiarys
creditors, except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
The claims of holders under the guarantees will be effectively
subordinated to the claims of creditors of our subsidiaries
other than, in the case of the debt securities, the applicable
issuer. The indentures do not restrict the amount of
indebtedness that we, the applicable issuers or our other
subsidiaries may incur.
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Our guarantee of the subordinated debt securities of each series
will, to the extent set forth in the applicable subordinated
indenture, be subordinate in right of payment to the prior
payment in full of all of the Apache senior indebtedness with
respect to such series. Upon any payment or distribution of our
assets or securities to creditors upon any dissolution,
winding-up,
liquidation or reorganization, or any bankruptcy, insolvency,
receivership or similar proceeding in connection with any
insolvency or bankruptcy proceedings of Apache, all amounts due
upon all Apache senior indebtedness with respect to the
subordinated debt securities of any series of the applicable
issuer will first be paid in full, or payment thereof provided
for in money in accordance with its terms, before the holders of
the subordinated debt securities of such series are entitled to
receive or retain any payment from us on account of principal
of, or any premium or interest on, or any additional amounts
with respect to, the subordinated debt securities of such
series, and to that end the holders of such Apache senior
indebtedness shall be entitled to receive, for application to
the payment thereof, any payment or distribution by us of any
kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable
or deliverable by us by reason of the payment of any of our
other indebtedness being subordinated to the payment of the
subordinated debt securities of such series, which may be
payable or deliverable by us in respect of the subordinated debt
securities of such series upon any such dissolution,
winding-up,
liquidation or reorganization or in any such bankruptcy,
insolvency, receivership or similar proceeding.
Because of such subordination, in the event of our liquidation
or insolvency, holders of Apache senior indebtedness with
respect to the subordinated debt securities of any series of the
applicable issuer and holders of other obligations of ours that
are not subordinated to such senior indebtedness may recover
more, ratably, than the holders of the subordinated debt
securities of such series of the applicable issuer.
No payments on account of principal or any premium or interest
in respect of the subordinated debt securities of the applicable
issuer may be made by Apache if there has occurred and is
continuing a default in any payment with respect to Apache
senior indebtedness or an event of default with respect to any
Apache senior indebtedness resulting in the acceleration of its
maturity, or if any judicial proceeding is pending with respect
to any default.
Apache indebtedness, for purposes of the
subordinated indenture of the applicable issuer, has the same
meaning as indebtedness for purposes of the Apache
subordinated indenture, as described above under
Description of Apache Corporation Debt
Securities Ranking Subordinated Debt
Securities.
Apache senior indebtedness means, with respect to
the subordinated debt securities of any particular series of the
applicable issuer, all Apache indebtedness, whether outstanding
on the date of execution of the applicable subordinated
indenture or thereafter created, assumed or incurred, except
Apaches obligations under the guarantee in respect of the
subordinated debt securities, Apache indebtedness ranking
equally with the Apache guarantee of the subordinated debt
securities or Apache indebtedness ranking junior to the Apache
guarantee of the subordinated debt securities.
Apache indebtedness ranking equally with the Apache
guarantee of the subordinated debt securities means, with
respect to the subordinated debt securities of any particular
series of the applicable issuer, Apache indebtedness, whether
outstanding on the date of execution of the applicable
subordinated indenture or thereafter created, assumed or
incurred, to the extent the Apache indebtedness specifically by
its terms ranks equally with and not prior to the Apache
guarantee of the subordinated debt securities in the right of
payment upon the happening of the dissolution,
winding-up,
liquidation or reorganization of Apache. The securing of any
indebtedness otherwise constituting indebtedness ranking equally
with the Apache guarantee of the subordinated debt securities
will not prevent the indebtedness from constituting indebtedness
ranking equally with the Apache guarantee of the subordinated
debt securities.
Apache indebtedness ranking junior to the Apache guarantee
of the subordinated debt securities means, with respect to
the subordinated debt securities of any particular series of the
applicable issuer, any Apache indebtedness, whether outstanding
on the date of execution of the applicable subordinated
indenture or thereafter created, assumed or incurred, to the
extent the indebtedness by its terms ranks junior to and not
equally with or prior to
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the Apache guarantee of the subordinated debt
securities, and
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any other indebtedness ranking equally with the Apache guarantee
of the subordinated debt securities,
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in right of payment upon the happening of the dissolution,
winding-up,
liquidation or reorganization of Apache. The securing of any
indebtedness otherwise constituting indebtedness ranking junior
to the Apache guarantee of the subordinated debt securities will
not prevent the indebtedness from constituting indebtedness
ranking junior to the Apache guarantee of the subordinated debt
securities.
Interest
Rates and Discounts
The debt securities will earn interest at a fixed or floating
rate or rates for the period or periods of time specified in the
applicable prospectus supplement. Unless we and the applicable
issuer specify otherwise in the applicable prospectus
supplement, the debt securities will bear interest on the basis
of a 360-day
year consisting of twelve
30-day
months.
The applicable issuer may sell debt securities at a substantial
discount below their stated principal amount, bearing no
interest or interest at a rate that at the time of issuance is
below market rates. We will describe the federal income tax
consequences and the special considerations that apply to any
series in the applicable prospectus supplement.
Exchange,
Registration and Transfer
Registered securities of any series that are not global
securities will be exchangeable for other registered securities
of the same series and of like aggregate principal amount and
tenor in different authorized denominations. In addition, if
debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon
written request, and subject to the terms of the applicable
indenture, to exchange bearer securities and the appropriate
related coupons of that series into registered securities of the
same series of any authorized denominations and of like
aggregate principal amount and tenor. Bearer securities with
attached coupons surrendered in exchange for registered
securities between a regular record date or a special record
date and the relevant date for interest payment shall be
surrendered without the coupon relating to the interest payment
date. Interest will not be payable with respect to the
registered security issued in exchange for that bearer security.
That interest will be payable only to the holder of the coupon
when due in accordance with the terms of the applicable
indenture. Bearer securities will not be issued in exchange for
registered securities.
You may present registered securities for registration of
transfer, together with a duly executed form of transfer, at the
office of the security registrar or at the office of any
transfer agent designated by the applicable issuer for that
purpose with respect to any series of debt securities and
referred to in the applicable prospectus supplement. This may be
done without service charge but upon payment of any taxes and
other governmental charges as described in the applicable
indenture. The security registrar or the transfer agent will
effect the transfer or exchange upon being satisfied with the
documents of title and identity of the person making the
request. The applicable issuer has appointed the trustee as
security registrar for each indenture. If a prospectus
supplement refers to any transfer agents initially designated by
the applicable issuer with respect to any series of debt
securities in addition to the security registrar, the applicable
issuer may at any time rescind the designation of any of those
transfer agents or approve a change in the location through
which any of those transfer agents acts. If, however, debt
securities of a series are issuable solely as registered
securities, the applicable issuer will be required to maintain a
transfer agent in each place of payment for that series, and if
debt securities of a series are issuable as bearer securities,
the applicable issuer will be required to maintain a transfer
agent in a place of payment for that series located outside of
the United States in addition to the security registrar. The
applicable issuer may at any time designate additional transfer
agents with respect to any series of debt securities.
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In the event of any redemption, the applicable issuer will not
be required to:
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before any selection of debt securities of that
series to be redeemed and ending at the close of business on the
day of mailing of the relevant notice of redemption; or
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register the transfer of or exchange any registered security, or
portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part.
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Payment
and Paying Agents
Unless the applicable issuer specifies otherwise in the
applicable prospectus supplement, payment of principal of, and
any premium and interest on, bearer securities will be payable
in accordance with any applicable laws and regulations, at the
offices of those paying agents outside the United States that we
or the applicable issuer may designate at various times. The
applicable issuer will make interest payments on bearer
securities and the attached coupons on any interest payment date
only against surrender of the coupon relating to that interest
payment date. No payment with respect to any bearer security
will be made at any of our or the applicable issuers
offices or agencies in the United States or by check mailed to
any U.S. address or by transfer to an account maintained
with a bank located in the United States. If, however, but only
if, payment in U.S. dollars of the full amount of principal
of, and any premium and interest on, bearer securities
denominated and payable in U.S. dollars at all offices or
agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions,
then those payments will be made at the office of our and the
applicable issuers paying agent in the Borough of
Manhattan, The City of New York.
Unless we or the applicable issuer specify otherwise in the
applicable prospectus supplement, payment of principal of, and
any premium and interest on, registered securities will be made
at the office of the paying agent or paying agents that we
designate at various times. At the applicable issuers
option, however, it may make interest payments by check mailed
to the address, as it appears in the security register, of the
person entitled to the payments. Unless we and the applicable
issuer specify otherwise in the applicable prospectus
supplement, the applicable issuer will make payment of any
installment of interest on registered securities to the person
in whose name that registered security is registered at the
close of business on the regular record date for such interest.
Unless we and the applicable issuer specify otherwise in the
applicable prospectus supplement, the Corporate
Trust Office of the trustee in the Borough of Manhattan,
The City of New York, will be designated:
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as the applicable issuers sole paying agent for payments
with respect to debt securities that are issuable solely as
registered securities; and
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as the applicable issuers paying agent in the Borough of
Manhattan, The City of New York, for payments with respect to
debt securities, subject to the limitation described above in
the case of bearer securities, that are issuable solely as
bearer securities or as both registered securities and bearer
securities.
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The applicable issuer will name any paying agents outside the
United States and any other paying agents in the United States
initially designated by us for the debt securities in the
applicable prospectus supplement. The applicable issuer may at
any time designate additional paying agents or rescind the
designation of any paying agent or approve a change in the
office through which any paying agent acts. If, however, debt
securities of a series are issuable solely as registered
securities, the applicable issuer will be required to maintain a
paying agent in each place of payment for that series. If debt
securities of a series are issuable as bearer securities, the
applicable issuer will be required to maintain:
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a paying agent in the Borough of Manhattan, The City of New
York, for payments with respect to any registered securities of
the series and for payments with respect to bearer securities of
the series in the circumstance described above, but not
otherwise; and
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a paying agent in a place of payment located outside the United
States where debt securities of that series and any attached
coupons may be presented and surrendered for payment.
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If, however, the debt securities of that series are listed on
the London Stock Exchange, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, and if
the stock exchange requires it, the applicable issuer will
maintain a paying agent in London or Luxembourg or any other
required city located outside the United States for those debt
securities.
All monies the applicable issuer pays to a paying agent for the
payment of principal of, and any premium or interest on, any
debt security or coupon that remains unclaimed at the end of two
years after becoming due and payable will be repaid to the
applicable issuer or the guarantor, as the case may be. After
that time, the holder of the debt security or coupon will look
only to the applicable issuer or the guarantor, as the case may
be, for payments out of those repaid amounts.
Global
Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global certificates that the
applicable issuer will deposit with a depository identified in
the applicable prospectus supplement. Global securities may be
issued in either registered or bearer form and in either
temporary or permanent form. Unless and until it is exchanged in
whole or in part for the individual debt securities it
represents, a global security may not be transferred except as a
whole:
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by the applicable depository to a nominee of the depository;
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by any nominee to the depository itself or another
nominee; or
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by the depository or any nominee to a successor depository or
any nominee of the successor.
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To the extent not described below and under the heading
Book-Entry Securities, the applicable issuer will
describe the terms of the depository arrangement with respect to
a series of debt securities in the applicable prospectus
supplement. The applicable issuer anticipates that the following
provisions will generally apply to depository arrangements.
As long as the depository for a global security, or its nominee,
is the registered owner of that global security, the depository
or nominee will be considered the sole owner or holder of the
debt securities represented by the global security for all
purposes under the applicable indenture. Except as provided
under Book-Entry Securities or in any applicable
prospectus supplement, owners of beneficial interests in a
global security:
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will not be entitled to have any of the underlying debt
securities registered in their names;
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will not receive or be entitled to receive physical delivery of
any of the underlying debt securities in definitive
form; and
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will not be considered the owners or holders under the indenture
relating to those debt securities.
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The laws of some states require that some purchasers of
securities take physical delivery of securities in definitive
form. These laws may impair your ability to transfer beneficial
interests in a global security.
Payments of principal of, and any premium and interest on,
individual debt securities represented by a global security
registered in the name of a depository or its nominee will be
made to the depository or its nominee as the registered owner of
the global security representing such debt securities. Neither
the applicable issuer, the trustee, any paying agent nor the
registrar for the debt securities will be responsible for any
aspect of the records relating to or payments made by the
depository or any participants on account of beneficial
interests of the global security.
For a description of the depository arrangements for global
securities held by The Depository Trust Company, see
Book-Entry Securities.
The
Senior Indentures Limit Our and the Applicable Issuers
Ability to Incur Liens
Unless the applicable issuer specifies otherwise in the
applicable prospectus supplement, the senior indentures provide
that none of us, the applicable issuer or any of our other
subsidiaries may issue, assume or
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guarantee any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed that are secured by
a mortgage, lien, pledge, security interest or other
encumbrance defined in each senior indenture as
liens upon any of its property unless we
provide that any and all senior debt securities then outstanding
shall be secured by a lien equally and ratably with any and all
other obligations secured by the lien. The restrictions on liens
will not, however, apply to:
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liens existing on the date of the indenture or provided for
under the terms of agreements existing on the date thereof;
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liens securing all or part of the cost of exploring, producing,
gathering, processing, marketing, drilling or developing any of
our or our subsidiaries properties, or securing
indebtedness incurred to provide funds therefor or indebtedness
incurred to finance all or part of the cost of acquiring,
constructing, altering, improving or repairing any such property
or assets, or improvement used in connection with such property,
or securing indebtedness incurred to provide funds therefor;
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liens securing only indebtedness owed by one of our subsidiaries
to us, the applicable issuer
and/or to
one or more of our other subsidiaries;
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liens on the property of any corporation or other entity
existing at the time it becomes our subsidiary;
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liens on any property to secure indebtedness incurred in
connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of
industrial revenue bond financing or indebtedness issued or
guaranteed by the United States, any state or any department,
agency or instrumentality of either or indebtedness issued to or
guaranteed by a foreign government, any state or any department,
agency or instrumentality of either or an international finance
agency or any division or department thereof, including the
World Bank, the International Finance Corp. and the Multilateral
Investment Guarantee Agency;
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any extension, renewal or replacement or successive extensions,
renewals or replacements of any lien referred to in the
foregoing clauses that existed on the date of the indenture;
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other ordinary course liens, as defined in the
indenture, incurred in the ordinary course of our
business; or
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liens that secure limited recourse indebtedness, as
defined in the indenture.
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Notwithstanding the limitations on liens described above, we and
any one or more or our subsidiaries may issue, assume or
guarantee the following indebtedness secured by liens on assets
without regard to the limitations described above: indebtedness
in any aggregate principal amount that, together with the
aggregate outstanding principal amount of all our other
indebtedness and indebtedness of any of our subsidiaries so
secured (excluding indebtedness secured by the permitted liens
described above), and the aggregate amount of sale/leaseback
transaction obligations that would otherwise be subject to the
limitations on sale/leaseback transactions described below, does
not at the time such indebtedness is incurred exceed
10 percent of our consolidated net worth as shown on our
most recent audited consolidated balance sheet.
In addition, the following types of transactions, among others,
shall not be deemed to create indebtedness secured by liens:
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the sale, granting of liens with respect to or other transfer of
crude oil, natural gas or other petroleum hydrocarbons in place
for a period of time until, or in an amount such that, the
transferee will receive as a result of the transfer a specified
amount of money or of such crude oil, natural gas or other
petroleum hydrocarbons;
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the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment,
overriding royalty, forward sale or similar interest; and
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the granting of liens required by any contract or statute in
order to permit us or one of our subsidiaries to perform any
contract or subcontract made with or at the request of the
U.S. government or any foreign government or international
finance agency, any state or any department thereof, or any
agency
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or instrumentality of either, or to secure partial, progress,
advance or other payments to us or one of our subsidiaries by
any of these entities pursuant to the provisions of any contract
or statute.
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The
Senior Indentures Limit Our and the Applicable Issuers
Ability to Engage in Sale/Leaseback Transactions
Unless we specify otherwise in the applicable prospectus
supplement, the senior indentures provide that neither we, the
applicable issuer nor any of our other subsidiaries will enter
into any arrangement with any person, other than us or one of
our subsidiaries, to lease any property to ourselves or a
subsidiary of ours for more than three years. For the
restriction to apply, we or one of our subsidiaries must sell or
plan to sell the property to the person leasing it to us or our
subsidiary or to another person to which funds have been or are
to be advanced on the security of the leased property. The
limitation does not apply where:
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either we, the applicable issuer or our other subsidiaries would
be entitled to create debt secured by a lien on the property to
be leased in a principal amount equal to or exceeding the value
of that sale/leaseback transaction;
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since the date of the applicable indenture and within a period
commencing six months prior to the consummation of that
arrangement and ending six months after the consummation of the
arrangement, we, the applicable issuer or our other subsidiaries
have expended for any property an amount up to the net proceeds
of that arrangement, including amounts expended for the
acquisition, exploration, drilling or development thereof, and
for additions, alterations, improvements and repairs to the
property, and we or the applicable issuer designate such amount
as a credit against that arrangement, with any of that amount
not being so designated to be applied as set forth in the next
item below; or
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during or immediately after the expiration of the 12 months
after the effective date of that transaction, we or the
applicable issuer, as the case may be, applies to the voluntary
redemption, defeasance or retirement of the senior debt
securities and our or its other senior indebtedness, as defined
in the applicable senior indenture, an amount equal to the
greater of the net proceeds of the sale or transfer of the
property leased in that transaction and the fair value of such
property at the time of entering into such transaction, in
either case adjusted to reflect the remaining term of the lease
and any amount we or the applicable issuer utilizes as set forth
in the prior item; the amount will be reduced by the principal
amount of other senior indebtedness we or the applicable issuer,
as the case may be, voluntarily retires within that
12-month
period.
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Each
Indenture Includes Events of Default
Unless otherwise specified in the applicable prospectus
supplement, any one of the following events will constitute an
event of default under each indenture with respect
to the debt securities of any series issued under that indenture:
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if we or the applicable issuer fail to pay any interest on any
debt security of that series when due, and the failure continues
for 30 days;
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if we or the applicable issuer fail to pay principal of or any
premium on the debt securities of that series when due and
payable, either at maturity or otherwise;
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if we or the applicable issuer fail to perform or we breach any
of our other covenants or warranties in the applicable indenture
or in the debt securities of that series other than
a covenant or warranty included in the applicable indenture
solely for the benefit of a series of securities other than the
debt securities of that series and that breach of
failure continues for 60 days after written notice as
provided in the applicable indenture;
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specified events of voluntary or involuntary bankruptcy,
insolvency or reorganization involving us or any of our
subsidiaries; or
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any other event of default provided with respect to the debt
securities of that series.
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Unless otherwise specified in the applicable prospectus
supplement, either of the following two events will also
constitute an event of default under the applicable senior
indenture with respect to any senior debt securities of the
applicable issuer:
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if any of our, the applicable issuers or any of our other
subsidiaries indebtedness, as defined in the indenture, in
excess of an aggregate of $25,000,000 in principal amount is
accelerated under any event of default as defined in any
mortgage, indenture or instrument and the acceleration has not
been rescinded or annulled within 30 days after written
notice as provided in the applicable indenture has been given
specifying such event of default and requiring us and the
applicable issuer to cause that acceleration to be rescinded or
annulled; or
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if we, the applicable issuer or any of our other subsidiaries
fail to pay, bond or otherwise discharge within 60 days of
entry, a judgment, court order or uninsured monetary damage
award against us in excess of an aggregate of $25,000,000 which
is not stayed on appeal or otherwise being appropriately
contested in good faith.
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If an event of default with respect to the debt securities of
any series, other than an event of default described in the item
above pertaining to events of bankruptcy, insolvency or
reorganization, occurs and is continuing, either the trustee or
the holders of at least 25 percent in aggregate principal
amount of the outstanding debt securities of that series may
declare the principal amount of the debt securities of that
series to be due and payable immediately. At any time after a
declaration of acceleration has been made, but before a judgment
or decree for payment of money due has been obtained by the
trustee, and subject to applicable law and other provisions of
the applicable indenture, the holders of a majority in aggregate
principal amount of the debt securities of that series may,
under some circumstances, rescind and annul such acceleration.
If an event of default occurs pertaining to events of
bankruptcy, insolvency or reorganization, the principal amount
and accrued interest or a lesser amount as provided
for in the debt securities of that series shall be
immediately due and payable without any declaration or other act
by the trustee or any holder.
Within 90 days after the occurrence of any default under an
indenture with respect to the debt securities of any series
issued under that indenture, the trustee must transmit notice of
the default to the holders of the debt securities of that series
unless the default has been cured or waived. The trustee may
withhold the notice, however, except in the case of a payment
default, if and so long as the board of directors, the executive
committee or a trust committee of directors or responsible
officers of the trustee has in good faith determined that the
withholding of the notice is in the interest of the holders of
debt securities of that series.
If an event of default occurs and is continuing with respect to
the debt securities of any series, the trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the holders of debt securities of that series by all
appropriate judicial proceedings.
Subject to the duty of the trustee during any default to act
with the required standard of care, the trustee is under no
obligation to exercise any of its rights or powers under an
indenture at the request or direction of any of the holders of
debt securities issued under that indenture, unless the holders
offer the trustee reasonable indemnity. Subject to indemnifying
the trustee, and subject to applicable law and other provisions
of each indenture, the holders of a majority in aggregate
principal amount of the outstanding debt securities of a series
issued under that indenture may direct the time, method and
place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series.
The
Applicable Issuer is Obligated to Purchase Debt Securities Upon
a Change in Control
If a change in control, as defined in each indenture, occurs,
the applicable issuer must mail within 15 days a written
notice regarding the change in control to the trustee and to
every holder of the debt securities of each series issued under
that indenture. The notice must also be published at least once
in an authorized newspaper, as defined in each indenture, and
must state:
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the events causing the change in control and the date of the
change the control;
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the date by which notice of the change in control is required by
the applicable indenture to be given;
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the date, 35 business days after the occurrence of the change in
control, by which the applicable issuer must purchase debt
securities we are obligated to purchase pursuant to the selling
holders exercise of rights on change in control;
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the price the applicable issuer must pay for the debt securities
we are obligated to purchase;
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the name and address of the trustee;
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the procedure for surrendering debt securities to the trustee or
other designated office or agency for payment;
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a statement of the applicable issuers obligation to make
prompt payment on proper surrender of the debt securities;
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the procedure for holders exercise of rights of sale of
the debt securities; and
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the procedures by which a holder may withdraw such a notice
after it is given.
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After giving this notice the applicable issuer will be
obligated, at the election of each holder, to purchase the
applicable debt securities. Under each indenture, a change in
control is deemed to have occurred when:
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any event requiring the filing of any report under or in
response to Schedule 13D or 14D-1 pursuant to the Exchange
Act disclosing beneficial ownership of either 50 percent or
more of our common stock then outstanding or 50 percent or
more of the voting power of our voting stock then outstanding;
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the completion of any sale, transfer, lease, or conveyance of
our properties and assets substantially as an entirety to any
person or persons that is not our subsidiary, as those terms are
defined in each indenture; or
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the completion of a consolidation or merger of Apache with or
into any other person or entity in a transaction in which either
we are not the sole surviving corporation or our common stock
existing before the transaction is converted into cash,
securities or other property and in which those exchanging our
common stock do not, as a result of the transaction, receive
either 75 percent or more of the survivors common
stock or 75 percent or more of the voting power of the
survivors voting stock.
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The applicable issuer will not purchase any debt securities if
there has occurred and is continuing an event of default under
either indenture, other than default in payment of the purchase
price payable for the debt securities upon change in control. In
connection with any purchase of debt securities after a change
in control, we will comply with all federal and state securities
laws, including, specifically,
Rule 13e-4,
if applicable, under the Exchange Act, and any related
Schedule 13E-4
required to be submitted under that rule.
Discharge,
Defeasance and Covenant Defeasance
We or the applicable issuer may discharge our obligations to
holders of any series of debt securities that have not already
been delivered to the trustee for cancellation and that:
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have become due and payable;
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will become due and payable within one year; or
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are scheduled for redemption within one year.
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To discharge the obligations with respect to a series of debt
securities, we or the applicable issuer must deposit with the
trustee, in trust, an amount of funds in U.S. dollars or in
the foreign currency in which those debt securities are payable
sufficient to pay the entire amount of principal of, and any
premium or interest and any additional amounts on, those debt
securities to the date of the deposit if those debt securities
have become due and payable or to the maturity of the debt
securities, as the case may be.
Unless we or the applicable issuer specify otherwise in the
applicable prospectus supplement, we or the applicable issuer
may elect
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to defease and be discharged from any and all obligations with
respect to those debt securities, which we refer to as
legal defeasance; or
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with respect to any senior debt securities, to be released from
our obligations under the covenants described above in The
Senior Indentures Limit Our and the Applicable Issuers
Ability to Incur Liens, The Senior Indentures Limit
Our and the Applicable Issuers Ability to Engage in Sale/
Leaseback Transactions or, with respect to any debt
securities, any other covenant obligation as may be provided for
under Section 301 of the applicable indenture and specified
in the applicable prospectus supplement, which we refer to as
covenant defeasance.
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In the case of legal defeasance we and the applicable issuer
will still retain some obligations in respect of the debt
securities, including our obligations:
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to pay additional amounts, if any, upon the occurrence of
specified events of taxation, assessment or governmental charge
with respect to payments on the debt securities;
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to register the transfer or exchange of the debt securities;
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to replace temporary or mutilated, destroyed, lost or stolen
debt securities; and
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to maintain an office or agency with respect to the debt
securities and to hold monies for payment in trust.
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After a covenant defeasance, any omission to comply with the
obligations or covenants that have been defeased shall not
constitute a default or an event of default with respect to the
debt securities.
To elect either legal defeasance or covenant defeasance we or
the applicable issuer must deposit with the trustee, in trust,
an amount, in U.S. dollars or in the foreign currency in
which the relevant debt securities are payable at stated
maturity, or in government obligations, as defined below, or
both, applicable to such debt securities which through the
scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient to pay
the principal of and any premium and interest on those debt
securities on their scheduled due dates.
In addition, we or the applicable issuer can only elect legal
defeasance or covenant defeasance if, among other things:
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the applicable defeasance does not result in a breach or
violation of, or constitute a default under, the applicable
indenture or any other material agreement or instrument to which
we or the applicable issuer are a party or by which we or the
applicable issuer are bound;
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no default or event of default with respect to the debt
securities to be defeased shall have occurred and be continuing
on the date of the establishment of the trust and, with respect
to legal defeasance only, at any time during the period ending
on the 91st day after the date of the establishment of the
trust; and
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we or the applicable issuer have delivered to the trustee an
opinion of counsel to the effect that the holders of the debt
securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of the
defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if the defeasance had not occurred, and
the opinion of counsel, in the case of legal defeasance, must
refer to and be based upon a letter ruling of the Internal
Revenue Service received by us or the applicable issuer, a
Revenue Ruling published by the Internal Revenue Service or a
change in applicable U.S. federal income tax law occurring
after the date of the applicable indenture.
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Each of the indentures deems a foreign currency to be any
currency, currency unit or composite currency issued by the
government of one or more countries other than the United States
or by any recognized confederation or association of governments.
38
Each of the indentures defines government obligations as
securities which are not callable or redeemable at the option of
the issuer or issuers and are:
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direct obligations of the United States or the government or the
governments in the confederation that issued the foreign
currency in which the debt securities of a particular series are
payable, for the payment of which its full faith and credit is
pledged; or
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obligations of a person or entity controlled or supervised by
and acting as an agency or instrumentality of the United States
or the government or governments that issued the foreign
currency in which the debt securities of a particular series are
payable, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States or that other government or governments.
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Government obligations also include a depositary receipt issued
by a bank or trust company as custodian with respect to any
government obligation described above or a specific payment of
interest on or principal of or any other amount with respect to
any government obligation held by that custodian for the account
of the holder of such depositary receipt, as long as, except as
required by law, that custodian is not authorized to make any
deduction from the amount payable to the holder of the
depositary receipt from any amount received by the custodian
with respect to the government obligation or the specific
payment of interest on or principal of or any other amount with
respect to the government obligation evidenced by the depositary
receipt.
Unless otherwise specified in the applicable prospectus
supplement, if, after we or the applicable issuer have deposited
funds and/or
government obligations to effect legal defeasance or covenant
defeasance with respect to debt securities of any series, either:
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the holder of a debt security of that series is entitled to, and
does, elect to receive payment in a currency other than that in
which such deposit has been made in respect of that debt
security; or
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a conversion event, as defined below, occurs in respect of the
foreign currency in which the deposit has been made,
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the indebtedness represented by that debt security shall be
deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of, and any premium and
interest on, that debt security as that debt security becomes
due out of the proceeds yielded by converting the amount or
other properties so deposited in respect of that debt security
into the currency in which that debt security becomes payable as
a result of the election or conversion event based on:
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in the case of payments made pursuant to the first of the two
items in the list above, the applicable market exchange rate for
the currency in effect on the second business day prior to the
date of the payment; or
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with respect to a conversion event, the applicable market
exchange rate for such foreign currency in effect, as nearly as
feasible, at the time of the conversion event.
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Each indenture defines a conversion event as the
cessation of use of:
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a foreign currency other than the euro by the government of the
country or the confederation which issued such foreign currency
and for the settlement of transactions by a central bank or
other public institutions of or within the international banking
community; or
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the euro both by governments within the Euro Zone and for the
settlement of transactions by public institutions of or within
the Euro Zone or of or within the international banking
community.
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Unless otherwise provided in the applicable prospectus
supplement, all payments of principal of, and any premium and
interest on, any debt security that are payable in a foreign
currency that ceases to be used by the government or
confederation of issuance shall be made in U.S. dollars.
If we or the applicable issuer effect a covenant defeasance with
respect to any debt securities and the debt securities are
declared due and payable because of the occurrence of any event
of default other than an event of default with respect to which
there has been covenant defeasance, the amount in the foreign
currency
39
in which the debt securities are payable, and government
obligations on deposit with the trustee, will be sufficient to
pay amounts due on the debt securities at the time of the stated
maturity but may not be sufficient to pay amounts due on the
debt securities at the time of the acceleration resulting from
the event of default. We and the applicable issuer would remain
liable, however, for payment of the amounts due at the time of
acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the debt securities of or
within a particular series.
Under each indenture, we and the applicable issuer are required
to furnish to the trustee annually a statement as to our
performance of our obligations under such indenture and as to
any default in such performance. We are also required to deliver
to the trustee, within five days after occurrence thereof,
written notice of any event of default or event that after
notice or lapse of time or both would constitute an event of
default.
Modification
and Waiver
We, the applicable issuer and the trustee may, without the
consent of holders, modify provisions of each indenture for
specified purposes, including, among other things, curing
ambiguities and maintaining the qualification of the applicable
indenture under the Trust Indenture Act. We, the applicable
issuer and the trustee may modify other provisions of each
indenture with the consent of the holders of not less than
two-thirds in aggregate principal amount of the debt securities
of each series issued under the indenture affected by the
modification. The provisions of the indenture, however, may not
be modified without the consent of the holder of each debt
security affected thereby if the modification would:
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change the stated maturity or any installment of the principal
of, or any premium or interest on, or any installment of
principal, or any additional amounts with respect to, any debt
security issued under the indenture;
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reduce the principal amount of, or premium or interest on, or
any additional amounts with respect to, any debt security issued
under the indenture;
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change the coin or currency in which any debt security issued
under the indenture or any premium or any interest on that debt
security or any additional amounts with respect to that debt
security is payable;
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if the debt securities are convertible or exchangeable, modify
the conversion or exchange provision in a manner adverse to
holders of that debt security;
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impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of any debt securities
issued under the indenture or, in the case of redemption,
exchange or conversion, if applicable, on or after the
redemption, exchange or conversion date or, in the case of
repayment at the option of any holder, if applicable, on or
after the date for repayment or in the case of a change in
control, after the change in control purchase date;
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reduce the percentage and principal amount of the outstanding
debt securities, the consent of whose holders is required under
the indenture in order to take specified actions;
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change any of our obligations to maintain an office or agency in
the places and for the purposes required by the
indenture; or
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modify any of the above provisions.
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The holders of at least a majority in aggregate principal amount
of debt securities of any series issued under the indenture, on
behalf of the holders of all debt securities of that series, may
waive our or the applicable issuers compliance with
specified restrictive provisions of that indenture. The holders
of not less than a majority in aggregate principal amount of
debt securities of any series issued under the indenture may, on
40
behalf of all holders of debt securities of that series, waive
any past default and its consequences under that indenture with
respect to the debt securities of that series, except:
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a payment default with respect to debt securities of that
series; or
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a default of a covenant or provision of that indenture that
cannot be modified or amended without the consent of the holder
of the debt securities of that series.
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Assumption
of the Obligations under the Debt Securities by Apache
Under each indenture, we may, at our option, assume the
applicable issuers obligations under the debt securities
if:
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we expressly assume the obligations in an assumption agreement
or supplemental indenture that is executed and delivered to the
trustee in a form that is acceptable to the trustee;
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no event of default and no event that after a notice or the
lapse of time or both would become an event of default occurs
and is continuing after giving effect to our assuming the
obligations; and
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we expressly agree in an assumption agreement or supplemental
indenture to indemnify the holders of the debt securities
against any tax, assessment or government charge imposed on a
holder or required to be withheld or deducted from any payment
made to a holder, including any charge or withholding required
on account of this indemnification, and any costs or expenses
incurred by a holder on account of our assuming the obligations.
If we deliver to the trustee an opinion of an independent tax
counsel or consultant of recognized standing stating that the
holders will not recognize income, gain or loss, for
U.S. federal income tax purposes, as a result of assuming
these obligations, then a holder will have the above
indemnification rights only if and when gain for
U.S. federal income tax purposes is actually recognized by
a holder.
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If we assume the applicable issuers obligations, as
described above, we will be substituted for the applicable
issuer for all purposes regarding the debt securities so assumed
as if we had been the original issuer of the securities.
Assignment
to Another Subsidiary
Under each indenture, the applicable issuer may assign its
obligations under any series of debt securities to any of our
other subsidiaries and the new subsidiary will be treated, for
all purposes, as the applicable issuers successor with
respect to the series of debt securities assigned, provided that
the conditions described under Consolidation, Merger and
Sale of Assets below are satisfied.
Payment
of Additional Amounts
Unless we and the applicable issuer specify otherwise in the
applicable prospectus supplement, the applicable issuer must
make all payments of, or in respect of, principal of and any
premium and interest on the debt securities without withholding
or deduction for any taxes imposed or levied by or on behalf of
any Australian or Canadian taxing authorities, as the case may
be. If the taxing authorities nonetheless require the applicable
issuer to withhold taxes, the applicable issuer must pay as
additional interest an amount that will result, after deducting
the taxes, in the payment to the holder of the debt securities
of the amount that would have been paid if no withholding was
required. Except as otherwise specified in the applicable
prospectus supplement, the applicable issuer is not required to
pay this additional interest for or on account of:
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any tax that would not have been imposed but for the fact that
the holder
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was a resident, domiciled or national of, or engaged in business
or maintained a permanent establishment or was physically
present in Australia or Canada, as applicable, or otherwise had
some connection with Australia or Canada, as applicable, other
than merely owning the debt security;
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presented, if presentation is required, the debt security for
payment in Australia or Canada, as applicable, unless the debt
security could not have been presented for payment elsewhere;
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presented, if presentation is required, the debt security more
than 30 days after the date on which the payment relating
to the debt security first became due and payable or provided
for, whichever is later, except to the extent that the holder
would have been entitled to the additional interest if it had
presented the debt security for payment on any day within this
30 day period;
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is, directly or indirectly, taken to be an associate of the
issuer (as associate is defined for Australian tax
purposes), in the case of Apache Australia, or is not dealing
with the issuer, directly or indirectly, on an arms-length
basis, in the case of Apache Canada and Apache
Canada II; or
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entered into or participated in a scheme to avoid Australian or
Canadian withholding tax, as applicable, that the issuer was
neither a party to nor participated in and, in the case of
Apache Australia, in respect of which the Australian
Commissioner of Taxation has made a determination that
Australian interest withholding tax is payable in respect of the
amount;
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any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
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any tax that is payable other than by withholding or deduction
from payments of, or in respect of, principal of or any premium
or interest on the debt securities;
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any tax that is imposed or withheld because the holder or the
beneficial owner of a debt security failed, upon request of the
applicable issuer to provide information concerning the
nationality, residence or identity of the holder or the
beneficial owner, or to make any declaration or other similar
claim or satisfy any information or reporting requirement that
is required or imposed by Australian or Canadian federal income
tax laws, as applicable, as a precondition to exemption from all
or part of the tax, assessment or other governmental
charge; or
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any combination of the four items listed above.
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The issuer also does not have to pay additional interest with
respect to any payment of the principal of or any premium or
interest on the debt security to any holder that is a fiduciary
or partnership or other than the sole beneficial owner of the
payment to the extent the payment would be required by the laws
of Australia or Canada, as applicable, to be included in the
income for tax purposes of a beneficiary or settlor with respect
to a fiduciary or a member of the partnership or a beneficial
owner who would not have been entitled to the additional
interest if it held the debt security.
Any amounts paid by us, as guarantor, under the applicable
indenture must be paid without withholding or deduction for any
taxes imposed or levied by or on behalf of any U.S. taxing
authority. If a U.S. taxing authority nonetheless requires
us to withhold taxes, we must pay an additional amount so that
the net amount paid to the holder, after deducting the taxes, is
not less than the amount then due and payable on the debt
securities. We are not required to pay this additional amount to
any holder of a debt security who is:
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subject to U.S. tax by reason of the holder being connected
with the U.S. otherwise than by holding or owning the debt
securities; or
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not dealing at arms length with us.
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Where this prospectus mentions, in any context, the payment of
principal of, or any premium or interest on, or in respect of,
the debt securities of any series or the net proceeds received
on the sale or exchange of the debt securities, this amount
shall be deemed to include the payment of additional amounts
provided for in the applicable indenture to the extent that the
additional amounts are, were or would be payable under such
applicable indenture.
Redemption
for Taxation Reasons
Unless we and the applicable issuer specify otherwise in the
applicable prospectus supplement, if Australian or Canadian
taxing authorities, as the case may be, change or amend their
laws, regulations or published tax rulings or the official
administration, application or interpretation of their laws,
regulations or
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published tax rulings either generally or in relation to the
debt securities, and the applicable issuer determines that:
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it will be required to pay any additional amounts under the
indenture or the terms of any debt security in respect of
interest on the next succeeding interest payment date; or
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in respect of the principal of any discounted debt securities on
the date of the determination, assuming that a payment in
respect of principal were required to be made on this date under
the terms of the debt securities; and
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the applicable issuer cannot avoid paying the additional amount
by taking reasonable measures available to it,
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it may, at its option, redeem all, but not less than all, of the
debt securities of any series in respect of which any additional
amounts would be so payable at any time, upon not less than 30
nor more than 60 days written notice as provided in
the indenture. Unless otherwise specified in the accompanying
prospectus supplement, the redemption price will be equal to
100 percent of the principal amount of the debt securities
plus accrued interest to the date of redemption, except that any
debt securities that are discounted debt securities may be
redeemed at the redemption price specified in the debt
securities terms, provided that:
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no notice of redemption may be given earlier than 60 days
before the earliest date on which the applicable issuer would be
obligated to pay any additional amounts if a payment was due in
respect of the debt securities; and
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at the time any redemption notice is given, the obligation to
pay any additional amounts must remain in effect.
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If the applicable issuer has consolidated with or merged into,
or conveyed or transferred or leased its properties and assets
as an entirety or substantially as an entirety to, any person
that is organized under the laws of any jurisdiction other than
the United States, any state of the United States or the
District of Columbia, or Australia or Canada, as the case may
be, as the result of any change in or any amendment to the laws,
regulations or published tax rulings of the jurisdiction under
which the applicable issuers successor is organized or of
its political subdivisions or taxing authorities affecting
taxation, or any change in the official administration,
application or interpretation of its laws, regulations or
published tax rulings either generally or in relation to any
particular debt securities, then
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the applicable issuers successor must pay any additional
amounts under the indenture or the terms of any debt securities
in respect of interest on any debt securities on the next
succeeding interest payment date or in respect of the principal
of any discounted debt securities on the date of the
determination, assuming the principal must be paid on that date
under the terms of the debt securities, and the applicable
issuer or its successor taking reasonable measures cannot avoid
this obligation, and, thereafter,
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the applicable issuer or its successor may redeem all, but not
less than all, of the debt securities of any series in respect
of which any additional amounts would be so payable at any time,
upon not less than 30 nor more than 60 days written
notice as provided in the indenture, at a redemption price equal
to 100 percent of the principal amount of the debt
securities plus accrued interest to the date fixed for
redemption, unless otherwise specified in the applicable
prospectus supplement, except that any debt securities that are
discounted debt securities may be redeemed at the price
specified in the debt securities terms. No notice of
redemption may be given earlier than 60 days before the
earliest date on which a successor must pay any additional
amounts if a payment was due in respect of the debt securities.
Also, at the time any redemption notice is given, the
successors obligation to pay any additional amounts must
remain in effect.
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Consolidation,
Merger and Sale of Assets
We may, without the consent of the holders of the debt
securities, consolidate or merge with or into, or convey,
transfer or lease our properties and assets as an entirety, or
substantially as an entirety, to any person that is a
corporation or limited liability company organized and validly
existing under the laws of any domestic jurisdiction. We may
also permit any of those persons to consolidate with or merge
into us or convey, transfer or lease its properties and assets
substantially as an entirety to us, as long as:
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any successor person assumes our obligations on the debt
securities;
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no event of default under the applicable indenture has occurred
and is continuing after giving effect to the transaction;
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no event which, after notice or lapse of time or both, would
become an event of default under the applicable indenture has
occurred and is continuing after giving effect to the
transaction; and
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other conditions are met.
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The applicable issuer may, without the consent of the holders of
the debt securities, consolidate or merge into, or convey,
transfer or lease its properties and assets substantially as an
entirety to any person that is a corporation, partnership,
joint-stock company or limited liability company or permit any
such person to consolidate with or merge into or convey,
transfer or lease its properties and assets substantially as an
entirety to us or the applicable issuer, as long as the person
assumes the applicable issuers obligations on the debt
securities and under the indenture, and immediately after the
transaction, no event of default, and no event which, after
notice or lapse of time or both, would become an event of
default, under the indenture has occurred.
Also, the successor person to us or the applicable issuer must
expressly agree in a supplemental indenture:
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that all payments on the debt securities in respect of the
principal of and any premium and interest shall be made without
withholding or deduction for any present or future taxes,
duties, assessments or governmental charges of any nature
imposed or levied by or on behalf of the persons
jurisdiction of organization or political subdivision or taxing
authority, unless the taxes are required by the jurisdiction,
subdivision or authority to be withheld or deducted, in which
case the person will pay additional amounts so that after
deducting the taxes the holder of a debt security receives the
same amount that the holder would have received if no
withholding or deduction was required; subject to the exceptions
set forth above in Payment of Additional
Amounts; and
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to indemnify immediately the holder of each debt security against
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any tax, assessment or governmental charge imposed on the holder
or required to be withheld or deducted from any payment to the
holder as a consequence of the transaction; and
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any other tax costs or other tax expenses of the transaction.
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If we, the applicable issuer or the successor person deliver an
opinion of an independent counsel or a tax consultant of
recognized standing that the holder will not recognize income,
gain or loss for U.S. federal income tax purposes as a
result of the transaction, a holder will have this right to
indemnification only if and when gain for U.S. federal
income tax purposes is actually recognized by the holder.
Service
of Process
Under each applicable indenture, each of Apache Finance, Apache
Australia, Apache Canada and Apache Canada II will
irrevocably appoint CT Corporation System, 111 8th Avenue,
New York, New York 10011, as its agent for service of process in
any suit, action or proceeding with respect to the indenture,
the debt securities or the guarantees issued thereunder and for
actions brought under the federal or state securities laws
brought in any federal or state court located in New York City,
and submitted to jurisdiction in New York.
44
Since a substantial portion of the assets of each of Apache
Finance, Apache Australia, Apache Canada and Apache
Canada II are outside the United States, any judgment
obtained in the United States against Apache Australia, Apache
Canada or Apache Canada II or, including judgments with
respect to the payment of principal or interest on the
securities, may not be collectible in the United States.
Governing
Law
Each indenture, the debt securities and the guarantees are
governed by and construed under the laws of the State of New
York, without regard to the principles of conflicts of laws,
except as may otherwise be required by mandatory provisions of
law. All matters governing the authorization and execution of
the indenture and the debt securities by Apache Finance, Apache
Australia, Apache Canada and Apache Canada II will be
governed by and construed in accordance with the laws of
Australian Capital Territory, Australia and Nova Scotia, Canada,
respectively.
BOOK-ENTRY
SECURITIES
Unless otherwise specified in the applicable prospectus
supplement, we, Apache Finance, Apache Australia, Apache Canada
or Apache Canada II, as the case may be, will issue to
investors securities, other than Apache common stock, in the
form of one or more book-entry certificates registered in the
name of a depository or a nominee of a depository. Unless
otherwise specified in the applicable prospectus supplement, the
depository will be The Depository Trust Company, also referred
to as DTC. We have been informed by DTC that its nominee will be
Cede & Co., also referred to as Cede. Accordingly,
Cede is expected to be the initial registered holder of all
securities that are issued in book-entry form.
No person that acquires a beneficial interest in securities
issued in book-entry form will be entitled to receive a
certificate representing those securities, except as set forth
in this prospectus or in the applicable prospectus supplement.
Unless and until definitive securities are issued under the
limited circumstances described below, all references to actions
by holders or beneficial owners of securities issued in
book-entry form will refer to actions taken by DTC upon
instructions from its participants, and all references to
payments and notices to holders or beneficial owners will refer
to payments and notices to DTC or Cede, as the registered holder
of such securities.
DTC has informed us that it is:
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a limited-purpose trust company organized under New York banking
laws;
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a banking organization within the meaning of the New
York banking laws;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New
York Uniform Commercial Code; and
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a clearing agency registered under the Securities
Exchange Act of 1934.
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DTC has also informed us that it was created to:
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hold securities for participants; and
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facilitate the computerized settlement of securities
transactions among participants through computerized electronic
book-entry changes in participants accounts, thereby
eliminating the need for the physical movement of securities
certificates.
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Participants have accounts with DTC and include securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Indirect access to
the DTC system also is available to indirect participants such
as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a participant,
either directly or indirectly.
Persons that are not participants or indirect participants but
desire to buy, sell or otherwise transfer ownership of or
interests in securities may do so only through participants and
indirect participants. Under the
45
book-entry system, beneficial owners may experience some delay
in receiving payments, as payments will be forwarded by our
agent to Cede, as nominee for DTC. DTC will forward these
payments to its participants, which thereafter will forward them
to indirect participants or beneficial owners. Beneficial owners
will not be recognized by the applicable registrar, transfer
agent, trustee or depositary as registered holders of the
securities entitled to the benefits of the certificate, the
indenture or any deposit agreement. Beneficial owners that are
not participants will be permitted to exercise their rights as
an owner only indirectly through participants and, if
applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will
be required to make book-entry transfers of securities among
participants and to receive and transmit payments to
participants. Participants and indirect participants with which
beneficial owners of securities have accounts are also required
by these rules to make book-entry transfers and receive and
transmit such payments on behalf of their respective account
holders.
Because DTC can act only on behalf of participants, who in turn
act only on behalf of other participants or indirect
participants, and on behalf of banks, trust companies and other
persons approved by it, the ability of a beneficial owner of
securities issued in book-entry form to pledge those securities
to persons or entities that do not participate in the DTC system
may be limited due to the unavailability of physical
certificates for the securities.
DTC has advised us that it will take any action permitted to be
taken by a registered holder of any securities under the
certificate, the indenture or any deposit agreement only at the
direction of one or more participants to whose accounts with DTC
the securities are credited.
According to DTC, the information with respect to DTC has been
provided to its participants and other members of the financial
community for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of
any kind.
Unless otherwise specified in the applicable prospectus
supplement, a book-entry security will be exchangeable for
definitive securities registered in the names of persons other
than DTC or its nominee only if:
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DTC notifies us that it is unwilling or unable to continue as
depositary for the book-entry security or DTC ceases to be a
clearing agency registered under the Securities Exchange Act of
1934 at a time when DTC is required to be so registered;
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we execute and deliver to the applicable registrar, transfer
agent, trustee
and/or
depositary an order complying with the requirements of the
certificate, the indenture or any deposit agreement that the
book-entry security will be so exchangeable; or
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in the case of debt securities, an event of default with respect
to the applicable series of debt securities has occurred and is
continuing.
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Any book-entry security that is exchangeable in accordance with
the preceding sentence will be exchangeable for securities
registered in such names as DTC directs.
If one of the events described in the immediately preceding
paragraph occurs, DTC is generally required to notify all
participants of the availability through DTC of definitive
securities. Upon surrender by DTC of the book-entry security
representing the securities and delivery of instructions for
re-registration, the registrar, transfer agent, trustee or
depositary, as the case may be, will reissue the securities as
definitive securities. After reissuance of the securities, such
persons will recognize the beneficial owners of such definitive
securities as registered holders of securities.
Except as described above:
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a book-entry security may not be transferred except as a whole
book-entry security by or among DTC, a nominee of DTC
and/or a
successor depository appointed by us; and
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DTC may not sell, assign or otherwise transfer any beneficial
interest in a book-entry security unless the beneficial interest
is in an amount equal to an authorized denomination for the
securities evidenced by the book-entry security.
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None of us, the trustee, any registrar and transfer agent or any
depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTCs or any
participants records relating to, or for payments made on
account of, beneficial interests in a book-entry security.
PLAN OF
DISTRIBUTION
We may sell our securities through agents, underwriters or
dealers, or directly to purchasers.
We may designate agents to solicit offers to purchase our
securities.
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We will name any agent involved in offering or selling our
securities, and any commissions that we will pay to the agent,
in our prospectus supplement.
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Unless we indicate otherwise in our prospectus supplement, our
agents will act on a reasonable best efforts basis for the
period of their appointment.
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Our agents may be deemed to be underwriters under the Securities
Act of any of our securities that they offer or sell.
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We may use one or more underwriters in the offer or sale of our
securities.
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If we use an underwriter, we will execute an underwriting
agreement with the underwriter(s) at the time that we reach an
agreement for the sale of our securities.
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We will include the names of the managing underwriter(s), as
well as any other underwriters, and the terms of the
transaction, including the compensation the underwriters and
dealers will receive, in our prospectus supplement.
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The underwriters will use our prospectus supplement to sell our
securities.
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We may use a dealer to sell our securities.
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If we use a dealer, we, as principal, will sell our securities
to the dealer.
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The dealer will then sell our securities to the public at
varying prices that the dealer will determine at the time it
sells our securities.
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We will include the name of the dealer and the terms of our
transactions with the dealer in our prospectus supplement.
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We may directly solicit offers to purchase our securities, and
we may directly sell our securities to institutional or other
investors. We will describe the terms of our direct sales in our
prospectus supplement.
We may indemnify agents, underwriters and dealers against
certain liabilities, including liabilities under the Securities
Act.
We may authorize our agents and underwriters to solicit offers
by certain institutions to purchase our securities at the public
offering price under delayed delivery contracts.
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If we use delayed delivery contracts, we will disclose that we
are using them in the prospectus supplement and will tell you
when we will demand payment and delivery of the securities under
the delayed delivery contracts.
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These delayed delivery contracts will be subject only to the
conditions that we set forth in the prospectus supplement.
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We will indicate in our prospectus supplement the commission
that underwriters and agents soliciting purchases of our
securities under delayed delivery contracts will be entitled to
receive.
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47
Any underwriter to whom securities are sold by us for public
offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. The applicable
prospectus supplement will identify any underwriters, dealers or
agents and will describe their compensation. We, Apache Finance,
Apache Australia, Apache Canada or Apache Canada II may
have agreements with the underwriters, dealers and agents to
indemnify them against some civil liabilities, including
liabilities under the Securities Act. Underwriters, dealers and
agents may engage in transactions with or perform services for
us or our subsidiaries in the ordinary course of their
businesses.
Other than our common stock, and unless otherwise specified in
the applicable prospectus supplement, each class or series of
securities offered by this prospectus and the applicable
prospectus supplement will be a new issue of securities with no
established trading market. The securities may or may not be
listed on a national securities exchange or a foreign securities
exchange, except for the common stock which is currently listed
and traded on the NYSE, the Nasdaq Global Select Market and the
Chicago Stock Exchange. We cannot give you any assurance as to
the liquidity of or the trading markets for any securities.
INVESTMENT
IN APACHE CORPORATION BY EMPLOYEE BENEFIT PLANS
An investment in us by an employee benefit plan is subject to
additional considerations to the extent that the investments by
these plans are subject to the fiduciary responsibility and
prohibited transaction provisions of ERISA, and restrictions
imposed by Section 4975 of the Internal Revenue Code. For
these purposes, the term employee benefit plan
includes, but is not limited to, certain qualified pension,
profit-sharing and stock bonus plans, Keogh plans, simplified
employee pension plans and individual retirement annuities or
accounts (IRAs) established or maintained by an employer or
employee organization. Incident to making an investment in us,
among other things, consideration should be given by an employee
benefit plan to:
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whether the investment is prudent under
Section 404(a)(1)(B) of ERISA;
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whether in making the investment, that plan will satisfy the
diversification requirements of Section 404(a)(l)(C) of
ERISA; and
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whether the investment will result in recognition of unrelated
business taxable income by the plan and, if so, the potential
after-tax investment return.
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In addition, the person with investment discretion with respect
to the assets of an employee benefit plan or other arrangement
that is covered by the prohibited transactions restrictions of
the Internal Revenue Code, often called a fiduciary, should
determine whether an investment in us is authorized by the
appropriate governing instrument and is a proper investment for
the plan or arrangement.
Section 406 of ERISA and Section 4975 of the Internal
Revenue Code prohibit certain employee benefit plans, and
Section 4975 of the Internal Revenue Code prohibits IRAs
and certain other arrangements that are not considered part of
an employee benefit plan, from engaging in specified
transactions involving plan assets with parties that
are parties in interest under ERISA or
disqualified persons under the Internal Revenue Code
with respect to the plan or other arrangement that is covered by
ERISA or the Internal Revenue Code.
The U.S. Department of Labor regulations provide guidance
with respect to whether the assets of an entity in which
employee benefit plans or other arrangements described above
acquire equity interests would be deemed plan assets
under some circumstances. Under these regulations, an
entitys assets would not be considered to be plan
assets if, among other things:
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the equity interests acquired by employee benefit plans or other
arrangements described above are publicly offered securities;
i.e., the equity interests are widely held by 100 or more
investors independent of the issuer and each other, freely
transferable and registered under some provisions of the federal
securities laws;
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the entity is an operating company,
i.e., it is primarily engaged in the production or sale of a
product or service other than the investment of capital either
directly or through a majority owned subsidiary or
subsidiaries; or
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less than 25 percent of the value of each class of equity
interest, disregarding any such interests held by our general
partner, its affiliates, and some other persons, is held by the
employee benefit plans referred to above, IRAs and other
employee benefit plans or arrangements subject to ERISA or
Section 4975 of the Code.
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Our assets should not be considered plan assets
under these regulations because the investment in our common
stock will satisfy the requirements in the first bullet point
above.
Plan fiduciaries contemplating a purchase of common stock should
consult with their own counsel regarding the consequences of
such purchase under ERISA and the Internal Revenue Code in light
of possible personal liability for any breach of fiduciary
duties and the imposition of serious penalties on persons who
engage in prohibited transactions under ERISA or the Internal
Revenue Code.
LEGAL
MATTERS
The validity of the securities, as to matters of United States
law and other customary legal matters relating to the offering
the securities issued by us, will be passed upon for us by
Andrews Kurth LLP, Houston, Texas. If the securities are being
distributed through underwriters or agents, the validity of the
securities will be passed upon for the underwriters or agents by
counsel identified in the related prospectus supplement.
The validity of the securities issued by (a) Apache Canada
and Apache Canada II and particular matters concerning the
laws of Canada and Nova Scotia will be passed upon by Bennett
Jones LLP, Calgary, Alberta, Canada and McInnes Cooper, Nova
Scotia, Canada, respectively and (b) Apache Finance and
Apache Australia and particular matters concerning the laws of
Australia and Australian Capital Territory will be passed upon
by Allens Arthur Robinson, Perth, Western Australia, Australia.
EXPERTS
The consolidated financial statements of Apache Corporation
appearing in our Annual Report on
Form 10-K
for the year ended December 31, 2007, have been audited by
Ernst & Young LLP, independent registered public
accounting firm, as set forth in their report thereon, included
therein, and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in
reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
The information incorporated by reference into this prospectus
regarding our total proved reserves was prepared by Apache and
reviewed by Ryder Scott Company Petroleum Engineers, as stated
in their letter reports, and is incorporated by reference in
reliance upon the authority of said firm as experts in such
matters.
49
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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ITEM 14.
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Other
Expenses of Issuance and Distribution.
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The following sets forth the expenses in connection with the
issuance and distribution of the securities being registered
hereby, other than underwriting discounts and commissions. All
amounts set forth below, other than the SEC registration fee,
are estimates.
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SEC Registration Fee
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$
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*
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Legal Fees and Expenses
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$
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**
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Accountants Fees and Expenses
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$
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**
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Trustees Fees and Expenses
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$
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**
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Printing and Engraving Expenses
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$
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**
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Rating Agency Fees
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$
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**
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Miscellaneous
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$
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**
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TOTAL
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$
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**
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* |
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Deferred in accordance with Rule 456(b) under the
Securities Act of 1933, as amended, and calculated in accordance
with the offering of securities under this registration
statement pursuant to Rule 457(r) of the Securities Act of
1933, as amended. |
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Because an indeterminate amount of securities is covered by this
registration statement, the expenses of the issuance and
distribution of the securities cannot be determined at this
time. The estimates of such expenses in connection with
securities offered and sold pursuant to this registration
statement will be included in the applicable prospectus
supplement. |
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ITEM 15.
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Indemnification
of Directors and Officers.
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APACHE
CORPORATION
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 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
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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 Seventeen 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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for 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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Reference is made to the form of underwriting agreements to be
incorporated by reference in this registration statement for a
description of the indemnification arrangements Apache, Apache
Australia, Apache Canada and Apache Canada II agree to in
connection with offerings of the securities registered by this
registration statement.
APACHE
FINANCE PTY LTD
Section 199A of the Australian Corporations Act 2001 (Cth)
(the Corporations Act) prohibits a company or a
related body corporate (as defined in the Corporations Act) from
exempting a person (whether directly or through an interposed
entity) from a liability to the company incurred as an officer
of the company. Officer includes a director or secretary, and
also includes a person who participates in making decisions that
affect a substantial part of the business, who has the capacity
to affect significantly the companys financial standing or
in accordance with whose instructions or wishes the directors of
the company are accustomed to act.
In addition, an officer cannot be indemnified by a company or
its related body corporate against:
(a) a liability owed to the company or a related body
corporate;
(b) a liability for a pecuniary civil penalty order under
the Corporations Act or a compensation order under the
Corporations Act in favour of the company; or
(c) a liability that is owed to a third person and that did
not arise out of conduct in good faith.
A company or related body corporate is also prohibited from
indemnifying a person against legal costs incurred in defending
an action for a liability incurred as an officer of the company
if the costs are incurred:
(a) in defending or resisting proceedings in which the
person is found to have a liability for which they could not be
indemnified;
(b) in defending or resisting criminal proceedings in which
the person is found guilty;
(c) in defending or resisting proceedings brought by the
Australian Securities and Investments Commission
(ASIC), or by a liquidator, seeking a court order if
the grounds for making the order are found by the court to have
been established (other than costs incurred in responding to
actions taken by ASIC or a liquidator as part of an
investigation before commencing proceedings for the court
order); or
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(d) in connection with proceedings for relief to the person
under the Corporations Act in which the court denies the relief.
Section 199B provides that a company or a related body
corporate must not pay, or agree to pay, a premium for a
contract insuring a person who is or has been an officer of the
company against a liability (other than one for legal costs)
arising out of:
(a) conduct involving a wilful breach of duty in relation
to the company; or
(b) misuse of the persons position or corporate
information.
Under section 199C, anything that purports to indemnify or
insure a person against a liability, or exempt them from a
liability, is void to the extent that it contravenes
section 199A or 199B.
Article 111 of the Constitution of Apache Finance Pty Ltd
provides that its directors, secretaries, officers, employees,
trustees and former officers shall be indemnified to the extent
Apache Finance Pty Ltd is not precluded by law from doing so.
Article 111 also provides that on the authority of the
Board, Apache Finance Pty Ltd may execute a documentary
indemnity in favor of any officer of the corporation and
purchase insurance on behalf of or in respect of any officer of
the corporation against any liability incurred by the officer in
or arising out of the conduct of the business of the corporation
or in or arising out of the discharge of the duties of the
officer.
APACHE
FINANCE AUSTRALIA PTY LTD
Section 199A of the Australian Corporations Act 2001 (Cth)
(the Corporations Act) prohibits a company or a
related body corporate (as defined in the Corporations Act) from
exempting a person (whether directly or through an interposed
entity) from a liability to the company incurred as an officer
of the company. Officer includes a director or secretary, and
also includes a person who participates in making decisions that
affect a substantial part of the business, who has the capacity
to affect significantly the companys financial standing or
in accordance with whose instructions or wishes the directors of
the company are accustomed to act.
In addition, an officer cannot be indemnified by a company or
its related body corporate against:
(a) a liability owed to the company or a related body
corporate;
(b) a liability for a pecuniary civil penalty order under
the Corporations Act or a compensation order under the
Corporations Act in favour of the company; or
(c) a liability that is owed to a third person and that did
not arise out of conduct in good faith.
A company or related body corporate is also prohibited from
indemnifying a person against legal costs incurred in defending
an action for a liability incurred as an officer of the company
if the costs are incurred:
(a) in defending or resisting proceedings in which the
person is found to have a liability for which they could not be
indemnified;
(b) in defending or resisting criminal proceedings in which
the person is found guilty;
(c) in defending or resisting proceedings brought by the
Australian Securities and Investments Commission
(ASIC), or by a liquidator, seeking a court order if
the grounds for making the order are found by the court to have
been established (other than costs incurred in responding to
actions taken by ASIC or a liquidator as part of an
investigation before commencing proceedings for the court
order); or
(d) in connection with proceedings for relief to the person
under the Corporations Act in which the court denies the relief.
II-3
Section 199B provides that a company or a related body
corporate must not pay, or agree to pay, a premium for a
contract insuring a person who is or has been an officer of the
company against a liability (other than one for legal costs)
arising out of:
(a) conduct involving a wilful breach of duty in relation
to the company; or
(b) misuse of the persons position or corporate
information.
Under section 199C, anything that purports to indemnify or
insure a person against a liability, or exempt them from a
liability, is void to the extent that it contravenes
section 199A or 199B.
Article 94 of the Constitution of Apache Finance Australia
Pty Ltd provides that its directors, secretaries, officers,
employees, trustees and former officers shall be indemnified to
the extent Apache Finance Australia Pty Ltd is not precluded by
law from doing so. Article 94 also provides that on the
authority of the Board, Apache Finance Australia Pty Ltd may
execute a documentary indemnity in favor of any officer of the
corporation and purchase insurance on behalf of or in respect of
any officer of the corporation against any liability incurred by
the officer in or arising out of the conduct of the business of
the corporation or in or arising out of the discharge of the
duties of the officer.
APACHE
FINANCE CANADA CORPORATION
The Articles of Association of Apache Finance Canada Corporation
provide, in substance, that every director and officer of Apache
Canada shall be indemnified by Apache Finance Canada Corporation
against all costs, losses and expenses which such person may
incur by reason of any contract entered into, or any act or
thing done, by him in such capacity or in anyway in the
discharge of his duties, unless such costs, losses and expenses
result from the dishonesty of the director or the officer.
Nova Scotia law does not make any statutory provision for, nor
impose any statutory restriction upon, the ability of a company
to indemnify directors and officers.
Although the matter has not been judicially considered, the
obligation to indemnify may not extend to losses occasioned by a
breach by a director of his common law fiduciary duty to Apache
Finance Canada Corporation.
APACHE
FINANCE CANADA II CORPORATION
The Articles of Association of Apache Finance Canada II
Corporation provide, in substance, that every director and
officer of Apache Canada II shall be indemnified by Apache
Finance Canada II Corporation against all costs, losses and
expenses which such person may incur by reason of any contract
entered into, or any act or thing done, by him in such capacity
or in anyway in the discharge of his duties, unless such costs,
losses and expenses result from the dishonesty of the director
or the officer.
Nova Scotia law does not make any statutory provision for, nor
impose any statutory restriction upon, the ability of a company
to indemnify directors and officers.
Although the matter has not been judicially considered, the
obligation to indemnify may not extend to losses occasioned by a
breach by a director of his common law fiduciary duty to Apache
Finance Canada II Corporation.
II-4
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Exhibit No.
|
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Exhibit
|
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**1
|
.1
|
|
Form of Underwriting Agreement
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|
2
|
.1
|
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Agreement and Plan of Merger among Apache, YPY Acquisitions,
Inc. and The Phoenix Resource Companies, Inc., dated
March 27, 1996 (incorporated by reference to
Exhibit 2.1 to Apaches Registration Statement on
Form S-4,
Registration
No. 333-02305,
filed April 5, 1996)
|
|
2
|
.2
|
|
Purchase and Sale Agreement by and between BP
Exploration & Production Inc., as seller, and Apache,
as buyer, dated January 11, 2003 (incorporated by reference
to Exhibit 2.1 to Apaches Current Report on
Form 8-K,
dated and filed January 13, 2003, SEC File
No. 001-04300)
|
|
2
|
.3
|
|
Sale and Purchase Agreement by and between BP Exploration
Operating Company Limited, as seller, and Apache North Sea
Limited, as buyer, dated January 11, 2003 (incorporated by
reference to Exhibit 2.2 to Apaches Current Report on
Form 8-K,
dated and filed January 13, 2003, SEC File
No. 001-04300)
|
|
4
|
.1
|
|
Certificate of Amendment of Certificate of Designation of
Series A Junior Participating Preferred Stock, dated
January 31, 2006, as filed with the Secretary of State of
Delaware on January 31, 2006 (incorporated by reference to
Exhibit 3.1 to Apaches Current Report on
Form 8-K,
filed February 3, 2006, SEC File
No. 001-04300)
|
|
4
|
.2
|
|
Form of Certificate for Apaches Common Stock (incorporated
by reference to Exhibit 4.1 to Apaches Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2004, SEC File
No. 001-04300)
|
|
4
|
.3
|
|
Form of Certificate for Apaches 5.68% Cumulative Preferred
Stock, Series B (incorporated by reference to
Exhibit 4.2 to Amendment No. 2 on
Form 8-K/A
to Apaches Current Report on
Form 8-K,
dated August 18, 1998 and filed August 25, 1998, SEC
File
No. 001-04300)
|
|
4
|
.4
|
|
Rights Agreement, dated January 31, 1996, between Apache
and Norwest Bank Minnesota, N.A., rights agent, relating to the
declaration of a rights dividend to Apaches common
shareholders of record on January 31, 1996 (incorporated by
reference to Exhibit 99.A to Apaches Registration
Statement on
Form 8-A,
dated January 24, 1996, SEC File
No. 001-04300)
|
|
4
|
.5
|
|
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. (successor to Norwest Bank Minnesota, N.A.)
(incorporated by reference to Exhibit 4.4 to Apaches
Amendment No. 1 to Registration Statement on
Form 8-A,
dated January 31, 2006, SEC File
No. 001-04300)
|
|
4
|
.6
|
|
Form of Apaches Right Certificate (incorporated by
reference to Exhibit B of Exhibit 4.4 to Amendment
No. 1 to Apaches Registration Statement on
Form 8-A
(File
No. 001-04300),
filed February 3, 2006)
|
|
4
|
.7
|
|
Senior Indenture, dated February 15, 1996, between Apache
and The Bank of New York Mellon Trust Company, N.A. (formerly
known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.6 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.8
|
|
First Supplemental Indenture to the Senior Indenture, dated as
of November 5, 1996, between Apache and The Bank of New
York Mellon Trust Company, N.A. (formerly known as The Bank of
New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.7 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.9
|
|
Form of Subordinated Indenture between Apache and The Bank of
New York Mellon Trust Company, N.A. (formerly known as The Bank
of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities (incorporated by reference to Exhibit 4.10 to
Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
II-5
|
|
|
|
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Exhibit No.
|
|
Exhibit
|
|
|
4
|
.10
|
|
Senior Indenture, dated December 9, 1997, among Apache Finance
Pty Ltd, Apache and The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company,
N.A., as successor-in-interest to JP Morgan Chase Bank, N.A.,
formerly known as The Chase Manhattan Bank), as trustee,
governing the senior debt securities and guarantees
(incorporated by reference to Exhibit 4.1 to Apaches Form
8-K/A, filed December 17, 1997)
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|
**4
|
.11
|
|
Form of Subordinated Indenture among Apache Finance Pty Ltd,
Apache and The Bank of New York Mellon Trust Company, N.A., as
trustee, governing the subordinated debt securities and
guarantees
|
|
4
|
.12
|
|
Form of Senior Indenture among Apache Finance Australia Pty Ltd,
Apache and The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.8 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.13
|
|
Form of Subordinated Indenture among Apache Finance Australia
Pty Ltd, Apache and The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company,
N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities and guarantees (incorporated by reference to
Exhibit 4.11 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
**4
|
.14
|
|
Form of Senior Indenture among Apache Finance Canada
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A., as trustee, governing the senior debt securities
and guarantees
|
|
**4
|
.15
|
|
Form of Subordinated Indenture among Apache Finance Canada
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A., as trustee, governing the subordinated debt
securities and guarantees
|
|
4
|
.16
|
|
Form of Senior Indenture among Apache Finance Canada II
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.9 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.17
|
|
Form of Subordinated Indenture among Apache Finance
Canada II Corporation, Apache and The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities and guarantees (incorporated by reference to
Exhibit 4.12 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
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**4
|
.18
|
|
Form of Deposit Agreement
|
|
**4
|
.19
|
|
Form of Preferred Securities Certificate of Designation
|
|
**4
|
.20
|
|
Form of Purchase Contract Agreement
|
|
**4
|
.21
|
|
Form of Pledge Agreement
|
|
**4
|
.22
|
|
Form of Remarketing Agreement
|
|
*5
|
.1
|
|
Opinion of Andrews Kurth LLP regarding legality of securities
being registered
|
|
*5
|
.2
|
|
Opinion of Allens Arthur Robinson regarding legality under
Australian law of securities being registered by Apache Finance
Pty Ltd and Apache Finance Australia Pty Ltd.
|
|
*5
|
.3
|
|
Opinion of McInnes Cooper regarding legality under the laws of
Nova Scotia, Canada of securities being registered by Apache
Finance Canada Corporation and Apache Finance Canada II
Corporation, respectively
|
|
12
|
.1
|
|
Statements of computation of ratios of earnings to fixed charges
and combined fixed charges, preferred stock dividends and
preferred interests of subsidiaries (incorporated by reference
to Exhibits 12.1 to Apaches Annual Report on
Form 10-K
for the year ended December 31, 2007 (File
No. 001-04300),
filed February 29, 2008)
|
II-6
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Exhibit No.
|
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Exhibit
|
|
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*23
|
.1
|
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Consent of Ernst & Young LLP, Houston, Texas
|
|
23
|
.2
|
|
Consent of Andrews Kurth LLP (included in Exhibit 5.1)
|
|
23
|
.3
|
|
Consent of Allens Arthur Robinson (included in Exhibit 5.2)
|
|
23
|
.4
|
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Consent of McInnes Cooper (included in Exhibit 5.3)
|
|
*23
|
.5
|
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Consent of Bennett Jones LLP
|
|
*23
|
.6
|
|
Consent of Ryder Scott Company Petroleum Engineers
|
|
24
|
.1
|
|
Power of Attorney (included in Part II as a part of the
signature pages of the Registration Statement)
|
|
*25
|
.1
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 of The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee under the Senior and Subordinated
Indentures between Apache and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee under the Senior Indenture between
Apache Finance Pty Ltd and The Bank of New York Mellon
Trust Company, N.A. (formerly known as The Bank of New York
Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), and as trustee and as guarantee trustee under
the guarantee of Apache Corporation, with respect to the Senior
and Subordinated Indentures of each of Apache Finance Pty Ltd,
Apache Finance Australia Pty Ltd, Apache Finance Canada
Corporation and Apache Finance Canada II Corporation
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* |
|
Indicates exhibits filed herewith. |
|
** |
|
Indicates exhibits to be filed by amendment or as an exhibit to
a Current Report on
Form 8-K
in connection with a specific offering. |
The total amount of securities of Apache Corporation authorized
under any instrument with respect to long-term debt not filed as
an exhibit to this registration statement does not exceed
10 percent of the total assets of Apache Corporation and
its subsidiaries on a consolidated basis. Apache Corporation
agrees, upon request of the SEC, to furnish copies of any or all
of such instruments to the SEC.
(a) The undersigned registrants hereby undertake:
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(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;
II-7
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the registration
statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrants pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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 the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrants undertake that in a primary offering of securities
of the undersigned registrants pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, each of the undersigned registrants will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrants relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrants or used
or referred to by such undersigned registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrants or their securities provided by or
on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrants to the purchaser.
II-8
(b) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants 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 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have
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
registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants 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 registrants 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-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
following registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3
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, on December 2, 2008.
APACHE CORPORATION
G. Steven Farris
President, Chief Executive Officer and
Chief Operating Officer
(Principal Executive Officer)
POWER OF
ATTORNEY
Each person whose signature appears below hereby 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 others, his or her 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 any or all amendments to this
registration statement, including any and all post-effective
amendments, and to file the same with all exhibits thereto and
other documents necessary or advisable in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
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, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on December 2, 2008.
|
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|
|
|
Signature
|
|
Title
|
|
/s/ G.
Steven Farris
G.
Steven Farris
|
|
Director, President, Chief Executive Officer and
Chief Operating Officer
(Principal Executive Officer)
|
|
|
|
/s/ Roger
B. Plank
Roger
B. Plank
|
|
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ Rebecca
A. Hoyt
Rebecca
A. Hoyt
|
|
Vice President and Controller
(Principal Accounting Officer)
|
II-10
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ Raymond
Plank
Raymond
Plank
|
|
Chairman of the Board
|
|
|
|
/s/ Frederick
M. Bohen
Frederick
M. Bohen
|
|
Director
|
|
|
|
/s/ Randolph
M. Ferlic
Randolph
M. Ferlic
|
|
Director
|
|
|
|
/s/ Eugene
C. Fiedorek
Eugene
C. Fiedorek
|
|
Director
|
|
|
|
/s/ A.
D. Frazier, Jr.
A.
D. Frazier, Jr.
|
|
Director
|
|
|
|
/s/ Patricia
Albjerg Graham
Patricia
Albjerg Graham
|
|
Director
|
|
|
|
/s/ John
A. Kocur
John
A. Kocur
|
|
Director
|
|
|
|
/s/ George
D. Lawrence
George
D. Lawrence
|
|
Director
|
|
|
|
/s/ F.
H. Merelli
F.
H. Merelli
|
|
Director
|
|
|
|
/s/ Rodman
D. Patton
Rodman
D. Patton
|
|
Director
|
|
|
|
/s/ Charles
J. Pitman
Charles
J. Pitman
|
|
Director
|
II-11
SIGNATURES
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-3
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, on December 2, 2008.
APACHE FINANCE PTY LTD
Roger B. Plank
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
POWER OF
ATTORNEY
Each person whose signature appears below hereby 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 others, his or her 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 any or all amendments to this
registration statement, including any and all post-effective
amendments, and to file the same with all exhibits thereto and
other documents necessary or advisable in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do
in person, hereby 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, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on December 2, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ G.
Steven Farris
G.
Steven Farris
|
|
Director, Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Roger
B. Plank
Roger
B. Plank
|
|
Director, Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ Rebecca
A. Hoyt
Rebecca
A. Hoyt
|
|
Vice President
(Principal Accounting Officer)
|
|
|
|
/s/ Floyd
R. Price
Floyd
R. Price
|
|
Director and President
|
|
|
|
/s/ Timothy
O. Wall
Timothy
O. Wall
|
|
Managing Director and Vice President
|
|
|
|
/s/ Gaetano
Marchesani
Gaetano
Marchesani
|
|
Director and Public Officer
|
II-12
SIGNATURES
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-3
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, on December 2, 2008.
APACHE FINANCE AUSTRALIA PTY LTD
Roger B. Plank
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
POWER OF
ATTORNEY
Each person whose signature appears below hereby 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 others, his or her 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 any or all amendments to this
registration statement, including any and all post-effective
amendments, and to file the same with all exhibits thereto and
other documents necessary or advisable in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
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, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on December 2, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ G.
Steven Farris
G.
Steven Farris
|
|
Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Roger
B. Plank
Roger
B. Plank
|
|
Director, Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ Rebecca
A. Hoyt
Rebecca
A. Hoyt
|
|
Vice President
(Principal Accounting Officer)
|
|
|
|
/s/ Floyd
R. Price
Floyd
R. Price
|
|
Director and President
|
|
|
|
/s/ Timothy
O. Wall
Timothy
O. Wall
|
|
Managing Director and Vice President
|
|
|
|
/s/ Gaetano
Marchesani
Gaetano
Marchesani
|
|
Director and Public Officer
|
II-13
SIGNATURES
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-3
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, on December 2, 2008.
APACHE FINANCE CANADA CORPORATION
Roger B. Plank
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
POWER OF
ATTORNEY
Each person whose signature appears below hereby 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 others, his or her 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 any or all amendments to this
registration statement, including any and all post-effective
amendments, and to file the same with all exhibits thereto and
other documents necessary or advisable in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
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, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on December 2, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ G.
Steven Farris
G.
Steven Farris
|
|
Director, Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Roger
B. Plank
Roger
B. Plank
|
|
Director, Executive Vice President
(Principal Financial Officer)
|
|
|
|
/s/ Rebecca
A. Hoyt
Rebecca
A. Hoyt
|
|
Vice President and Controller
(Principal Accounting Officer)
|
|
|
|
/s/ John
A. Crum
John
A. Crum
|
|
Director and President
|
|
|
|
/s/ James
G. Smeltzer
James
G. Smeltzer
|
|
Director
|
II-14
SIGNATURES
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-3
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, on December 2, 2008.
APACHE FINANCE CANADA II CORPORATION
Roger B. Plank
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
POWER OF
ATTORNEY
Each person whose signature appears below hereby 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 others, his or her 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 any or all amendments to this
registration statement, including any and all post-effective
amendments, and to file the same with all exhibits thereto and
other documents necessary or advisable in connection therewith,
with the Securities and Exchange Commission, granting unto such
attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby
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, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on December 2, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ G.
Steven Farris
G.
Steven Farris
|
|
Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Roger
B. Plank
Roger
B. Plank
|
|
Director, Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ Rebecca
A. Hoyt
Rebecca
A. Hoyt
|
|
Vice President and Controller
(Principal Accounting Officer)
|
|
|
|
/s/ John
A. Crum
John
A. Crum
|
|
Director and President
|
|
|
|
/s/ James
G. Smeltzer
James
G. Smeltzer
|
|
Director
|
II-15
EXHIBIT LIST
|
|
|
|
|
Exhibit No.
|
|
Exhibit
|
|
|
**1
|
.1
|
|
Form of Underwriting Agreement
|
|
2
|
.1
|
|
Agreement and Plan of Merger among Apache, YPY Acquisitions,
Inc. and The Phoenix Resource Companies, Inc., dated
March 27, 1996 (incorporated by reference to
Exhibit 2.1 to Apaches Registration Statement on
Form S-4,
Registration
No. 333-02305,
filed April 5, 1996)
|
|
2
|
.2
|
|
Purchase and Sale Agreement by and between BP
Exploration & Production Inc., as seller, and Apache,
as buyer, dated January 11, 2003 (incorporated by reference
to Exhibit 2.1 to Apaches Current Report on
Form 8-K,
dated and filed January 13, 2003, SEC File
No. 001-04300)
|
|
2
|
.3
|
|
Sale and Purchase Agreement by and between BP Exploration
Operating Company Limited, as seller, and Apache North Sea
Limited, as buyer, dated January 11, 2003 (incorporated by
reference to Exhibit 2.2 to Apaches Current Report on
Form 8-K,
dated and filed January 13, 2003, SEC File
No. 001-04300)
|
|
4
|
.1
|
|
Certificate of Amendment of Certificate of Designation of
Series A Junior Participating Preferred Stock, dated
January 31, 2006, as filed with the Secretary of State of
Delaware on January 31, 2006 (incorporated by reference to
Exhibit 3.1 to Apaches Current Report on
Form 8-K,
filed February 3, 2006, SEC File
No. 001-04300)
|
|
4
|
.2
|
|
Form of Certificate for Apaches Common Stock (incorporated
by reference to Exhibit 4.1 to Apaches Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2004, SEC File
No. 001-04300)
|
|
4
|
.3
|
|
Form of Certificate for Apaches 5.68% Cumulative Preferred
Stock, Series B (incorporated by reference to
Exhibit 4.2 to Amendment No. 2 on
Form 8-K/A
to Apaches Current Report on
Form 8-K,
dated August 18, 1998 and filed August 25, 1998, SEC
File
No. 001-04300)
|
|
4
|
.4
|
|
Rights Agreement, dated January 31, 1996, between Apache
and Norwest Bank Minnesota, N.A., rights agent, relating to the
declaration of a rights dividend to Apaches common
shareholders of record on January 31, 1996 (incorporated by
reference to Exhibit 99.A to Apaches Registration
Statement on
Form 8-A,
dated January 24, 1996, SEC File
No. 001-04300)
|
|
4
|
.5
|
|
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. (successor to Norwest Bank Minnesota, N.A.)
(incorporated by reference to Exhibit 4.4 to Apaches
Amendment No. 1 to Registration Statement on
Form 8-A,
dated January 31, 2006, SEC File
No. 001-04300)
|
|
4
|
.6
|
|
Form of Apaches Right Certificate (incorporated by
reference to Exhibit B of Exhibit 4.4 to Amendment
No. 1 to Apaches Registration Statement on
Form 8-A
(File
No. 001-04300),
filed February 3, 2006)
|
|
4
|
.7
|
|
Senior Indenture, dated February 15, 1996, between Apache
and The Bank of New York Mellon Trust Company, N.A. (formerly
known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.6 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.8
|
|
First Supplemental Indenture to the Senior Indenture, dated as
of November 5, 1996, between Apache and The Bank of New
York Mellon Trust Company, N.A. (formerly known as The Bank of
New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.7 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.9
|
|
Form of Subordinated Indenture between Apache and The Bank of
New York Mellon Trust Company, N.A. (formerly known as The Bank
of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities (incorporated by reference to Exhibit 4.10 to
Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
|
|
|
|
Exhibit No.
|
|
Exhibit
|
|
|
4
|
.10
|
|
Senior Indenture, dated December 9, 1997, among Apache Finance
Pty Ltd, Apache and The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company,
N.A., as successor-in-interest to JP Morgan Chase Bank, N.A.,
formerly known as The Chase Manhattan Bank), as trustee,
governing the senior debt securities and guarantees
(incorporated by reference to Exhibit 4.1 to Apaches Form
8-K/A, filed December 17, 1997)
|
|
**4
|
.11
|
|
Form of Subordinated Indenture among Apache Finance Pty Ltd,
Apache and The Bank of New York Mellon Trust Company, N.A., as
trustee, governing the subordinated debt securities and
guarantees
|
|
4
|
.12
|
|
Form of Senior Indenture among Apache Finance Australia Pty Ltd,
Apache and The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.8 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.13
|
|
Form of Subordinated Indenture among Apache Finance Australia
Pty Ltd, Apache and The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company,
N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities and guarantees (incorporated by reference to
Exhibit 4.11 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
**4
|
.14
|
|
Form of Senior Indenture among Apache Finance Canada
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A., as trustee, governing the senior debt securities
and guarantees
|
|
**4
|
.15
|
|
Form of Subordinated Indenture among Apache Finance Canada
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A., as trustee, governing the subordinated debt
securities and guarantees
|
|
4
|
.16
|
|
Form of Senior Indenture among Apache Finance Canada II
Corporation, Apache and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the senior debt
securities and guarantees (incorporated by reference to
Exhibit 4.9 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
4
|
.17
|
|
Form of Subordinated Indenture among Apache Finance
Canada II Corporation, Apache and The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee, governing the subordinated debt
securities and guarantees (incorporated by reference to
Exhibit 4.12 to Apaches Registration Statement on
Form S-3
(File
No. 333-105536),
filed May 23, 2003)
|
|
**4
|
.18
|
|
Form of Deposit Agreement
|
|
**4
|
.19
|
|
Form of Preferred Securities Certificate of Designation
|
|
**4
|
.20
|
|
Form of Purchase Contract Agreement
|
|
**4
|
.21
|
|
Form of Pledge Agreement
|
|
**4
|
.22
|
|
Form of Remarketing Agreement
|
|
*5
|
.1
|
|
Opinion of Andrews Kurth LLP regarding legality of securities
being registered
|
|
*5
|
.2
|
|
Opinion of Allens Arthur Robinson regarding legality under
Australian law of securities being registered by Apache Finance
Pty Ltd and Apache Finance Australia Pty Ltd.
|
|
*5
|
.3
|
|
Opinion of McInnes Cooper regarding legality under the laws of
Nova Scotia, Canada of securities being registered by Apache
Finance Canada Corporation and Apache Finance Canada II
Corporation, respectively
|
|
12
|
.1
|
|
Statements of computation of ratios of earnings to fixed charges
and combined fixed charges, preferred stock dividends and
preferred interests of subsidiaries (incorporated by reference
to Exhibits 12.1 to Apaches Annual Report on
Form 10-K
for the year ended December 31, 2007 (File
No. 001-04300),
filed February 29, 2008)
|
|
*23
|
.1
|
|
Consent of Ernst & Young LLP, Houston, Texas
|
|
23
|
.2
|
|
Consent of Andrews Kurth LLP (included in Exhibit 5.1)
|
|
|
|
|
|
Exhibit No.
|
|
Exhibit
|
|
|
23
|
.3
|
|
Consent of Allens Arthur Robinson (included in Exhibit 5.2)
|
|
23
|
.4
|
|
Consent of McInnes Cooper (included in Exhibit 5.3)
|
|
*23
|
.5
|
|
Consent of Bennett Jones LLP
|
|
*23
|
.6
|
|
Consent of Ryder Scott Company Petroleum Engineers
|
|
24
|
.1
|
|
Power of Attorney (included in Part II as a part of the
signature pages of the Registration Statement)
|
|
*25
|
.1
|
|
Form T-1
Statement of Eligibility and Qualification under Trust Indenture
Act of 1939 of The Bank of New York Mellon Trust Company, N.A.
(formerly known as The Bank of New York Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee under the Senior and Subordinated
Indentures between Apache and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), as trustee under the Senior Indenture between
Apache Finance Pty Ltd and The Bank of New York Mellon
Trust Company, N.A. (formerly known as The Bank of New York
Trust Company, N.A., as
successor-in-interest
to JP Morgan Chase Bank, N.A., formerly known as The Chase
Manhattan Bank), and as trustee and as guarantee trustee under
the guarantee of Apache Corporation, with respect to the Senior
and Subordinated Indentures of each of Apache Finance Pty Ltd,
Apache Finance Australia Pty Ltd, Apache Finance Canada
Corporation and Apache Finance Canada II Corporation
|
|
|
|
* |
|
Indicates exhibits filed herewith. |
|
** |
|
Indicates exhibits to be filed by amendment or as an exhibit to
a Current Report on
Form 8-K
in connection with a specific offering. |
The total amount of securities of Apache Corporation authorized
under any instrument with respect to long-term debt not filed as
an exhibit to this registration statement does not exceed
10 percent of the total assets of Apache Corporation and
its subsidiaries on a consolidated basis. Apache Corporation
agrees, upon request of the SEC, to furnish copies of any or all
of such instruments to the SEC.