NONSTATUTORY STOCK OPTION AGREEMENT
Exhibit 4.8
AGREEMENT (this “Agreement”) made as of November 10, 2010 (the “Effective Date”), between
APACHE CORPORATION, a Delaware corporation (the “Company”), and ____________________ (“Optionee”).
WHEREAS, in 2006, Mariner Energy, Inc., a Delaware corporation (“Mariner”), granted Optionee a
nonstatutory stock option to purchase Mariner’s common stock, par value $.0001 per share (the
“Mariner Stock Option”), which replaced the unvested portion of an option granted to Optionee by
Forest Oil Corporation, a New York corporation, pursuant to a Nonstatutory Stock Option Agreement
made as of December 8, 2004 (the “Original Grant Date”) between Forest Oil Corporation and
Optionee;
WHEREAS, as of the Effective Date, the Mariner Stock Option was fully vested as to the number
of shares covered thereby that remain unexercised (the “Remaining Mariner Shares”) at an exercise
price of $11.59 per share (the “Mariner Exercise Price”);
WHEREAS, on the Effective Date, Mariner was merged with and into a wholly-owned subsidiary of
the Company pursuant to an Agreement and Plan of Merger, executed April 14, 2010, as amended by
Amendment No. 1 dated August 2, 2010, among the Company, Apache Deepwater LLC and Mariner (the
“Merger Agreement”), and Optionee became an employee of the Company or a subsidiary of the Company;
WHEREAS, Section 1.7(a) of the Merger Agreement provides that the Mariner Stock Option be
converted into an option to acquire __________________ shares of the Company’s common stock, par
value $.625 per share (“Stock”), which is equal to the Remaining Mariner Shares multiplied by
0.24347, with any fractional share decreased to the next whole number of shares, at an exercise
price of $47.61 per share, which is equal to the Mariner Exercise Price divided by 0.24347, with
any fraction of a cent increased to the next whole cent; and
WHEREAS, this Agreement effects the conversion of the Mariner Stock Option into an option to
acquire Stock on the terms and subject to the conditions hereof.
NOW, THEREFORE, for and in consideration of the premises and the mutual agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to Optionee the right and
option (“Option”) to purchase all or any part of the aggregate number of shares of Stock stated
above on the terms and conditions set forth herein. This Option shall not be treated as an
incentive stock option within the meaning of section 422(b) of the Internal Revenue Code of 1986,
as amended (the “Code”). Reference in this Agreement to any section of the Code shall be deemed to
include any amendments or successor provisions to such section and any regulations under such
section.
2. Purchase Price. The purchase price of Stock purchased pursuant to the exercise of
this Option shall be $47.61 per share.
3. Exercise of Option. Subject to the earlier expiration of this Option as herein
provided, this Option may be exercised, by contacting Fidelity Stock Plan Services, the Company’s
Administrative Agent, at xxx.xxxxxxxxxxx.xxx or calling 0-000-000-0000, or delivering a written
notice to the Office of the Secretary of the Company in a form satisfactory to the Committee
(defined below) , at any time and from time to time after the Effective Date. As used in this
Agreement, “Committee” shall mean the Stock Option Plan Committee of the Company’s Board of
Directors.
For purposes of the next sentence and subparts (a) through (d) thereof, references to the
Company include the Company or any Affiliate (defined below). This Option may be exercised only
while Optionee remains an employee of the Company and will terminate and cease to be exercisable
upon Optionee’s termination of employment with the Company, except that:
(a) Disability. If Optionee’s employment with the Company terminates by reason
of disability (within the meaning of section 22(e)(3) of the Code), this Option may be
exercised in full by Optionee (or Optionee’s estate or the person who acquires this Option
by will or the laws of descent and distribution or otherwise by reason of the death of
Optionee) at any time during the period of one year following such termination.
(b) Death. If Optionee dies while in the employ of the Company, Optionee’s
estate, or the person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Optionee, may exercise this Option in
full at any time during the period of one year following the date of Optionee’s death.
(c) Retirement. If Optionee retires from the Company, this Option may be
exercised in full by Optionee (or Optionee’s estate or the person who acquires this Option
by will or the laws of descent and distribution or otherwise by reason of the death of such
Optionee) at any time during the period of one year following such retirement. Solely for
purposes of this Agreement, “retirement” means that Optionee’s employment with the Company
has terminated upon or after Optionee has reached the age of (i) 65 years or (ii) 55 years
if Optionee has been continuously employed by Forest or its Affiliates, Mariner or its
Affiliates, and the Company for an aggregate of 15 years.
(d) Other Termination. If Optionee’s employment with the Company terminates
for any reason other than as described in (a), (b) or (c) above, unless such employment is
terminated for cause, this Option may be exercised by Optionee at any time during the period
of three months following such termination, or by Optionee’s estate (or the person who
acquires this Option by will or the laws of descent and distribution or otherwise by reason
of the death of Optionee) during a period of one year following Optionee’s death if Optionee
dies during such three-month period. If Optionee’s employment with the Company is
terminated for cause, then this Option will terminate and cease to be exercisable upon the
date of such termination. As used in this paragraph, the term “cause” shall mean Optionee
(i) has been convicted of a misdemeanor involving moral turpitude or of a felony, (ii) has
engaged in gross
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negligence or willful misconduct in the performance of the duties of Optionee’s
employment, (iii) has willfully disregarded any written corporate policies established by
the Company, or (iv) has materially breached any material provision of any written agreement
between Optionee and the Company or any of its Affiliates.
As used in this Agreement, “Affiliate” means any corporation, partnership, limited liability
company or partnership, association, trust or other organization which, directly or indirectly,
controls, is controlled by, or is under common control with, the Company. For purposes of the
preceding sentence, “control” (including, with correlative meanings, the terms “controlled by” and
“under common control with”), as used with respect to any entity or organization, shall mean the
possession, directly or indirectly, of the power (i) to vote more than 50% of the securities having
ordinary voting power for the election of directors of the controlled entity or organization, or
(ii) to direct or cause the direction of the management and policies of the controlled entity or
organization, whether through the ownership of voting securities or by contract or otherwise.
This Option shall not be exercisable in any event after the expiration of ten years from the
Original Grant Date. The purchase price of shares as to which this Option is exercised shall be
paid in full at the time of exercise (a) in cash (including check, bank draft or money order
payable to the order of the Company), (b) by certification or attestation to Fidelity Stock Plan
Services or to the Office of the Secretary of the Company of a number of shares then owned by the
Optionee and held by the Optionee for a period of at least six months prior to the date of such
delivery having an aggregate Fair Market Value at the exercise date equal to the aggregate purchase
price., (c) if the Stock is readily tradable on a national securities market, through a
“cashless-broker” exercise in accordance with a Company established policy or program for the same,
or (d) any combination of the foregoing. No fraction of a share of Stock shall be issued by the
Company upon exercise of an Option or accepted by the Company in payment of the exercise price
thereof; rather, Optionee shall provide a cash payment for such amount as is necessary to effect
the issuance and acceptance of only whole shares of Stock. No cash in lieu of fractional shares
shall be paid. Unless and until the shares acquirable upon exercise of this Option have been
represented by a book-entry statement or a certificate(s) delivered by the Company or its transfer
agent to Optionee, Optionee (or the person permitted to exercise this Option in the event of
Optionee’s death) shall not be or have any of the rights or privileges of a stockholder of the
Company with respect to such shares.
As used in this Agreement, “Fair Market Value” shall mean, as of any applicable date, the per
share closing price of the Stock as reported on The New York Stock Exchange, Inc. Composite
Transactions Reporting System for a particular date or, if the Stock is not so listed on such date,
as reported on NASDAQ or on such other exchange or electronic trading system which, on the date in
question, reports the largest number of traded shares of Stock, provided, however,
that if on the date Fair Market Value is to be determined there are no transactions in the Stock,
Fair Market Value shall be determined as of the immediately preceding date on which there were
transactions in the Stock; provided further, however, that if the foregoing
provisions are not applicable, the fair market value of a share of the Stock as determined by the
Committee by the reasonable application of such reasonable valuation method, consistently applied,
as the Committee deems appropriate.
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4. Withholding of Tax. The Company shall have the right to deduct in connection with
this Option any taxes required by law to be withheld and to require any payments required to enable
it to satisfy its withholding obligations. To the extent that the exercise of this Option or the
disposition of shares of Stock acquired by exercise of this Option results in compensation income
or wages to Optionee for federal, state or local tax purposes, Optionee shall deliver to the
Company at the time of such exercise or disposition such amount of money as the Company may require
to meet its minimum obligation under applicable tax laws or regulations. Optionee may elect with
respect to this Option to surrender or authorize the Company to withhold shares of Stock (valued at
their Fair Market Value on the date of surrender or withholding of such shares) to satisfy any tax
required to be withheld upon exercise of this Option. An election pursuant to the preceding
sentence shall be referred to herein as a “Stock Withholding Election.” All Stock Withholding
Elections shall be made by written notice to Fidelity Stock Plan Services or to the Company’s
Corporate Secretary. If Optionee is not a Section 16 Person (as hereinafter defined), Optionee may
revoke such election by delivering to the Company’s Corporate Secretary (or such other designated
officer or employee) written notice of such revocation prior to the date such election is
implemented through actual surrender or withholding of shares of Stock (the “Withholding Date”).
If Optionee is a Section 16 Person, the Stock Withholding Election must:
(a) be irrevocable and made six months prior to the Withholding Date; or
(b) (i) be approved by the Committee either before or after such election is made, (ii) be
made, and the Withholding Date occur, during a period beginning on the third business day following
the date of release by the Company for publication of quarterly and annual summary statements of
sales and earnings and ending on the twelfth business day following such date, and (iii) be made
more than six months after the Effective Date; or
(c) be made in connection with (i) a delivery to the Company of shares of Stock owned by
Optionee prior to the exercise of this Option to satisfy the portion of the tax required to be
withheld with respect to those shares of Stock received by Optionee upon exercise of this Option
for which payment of the purchase price was made to the Company in shares of Stock owned by
Optionee prior to the exercise of this Option pursuant to Paragraph 3 hereof and (ii) the exercise
of this Option more than six months after the Effective Date.
If Optionee fails to pay the required amount to the Company or fails to make a Stock
Withholding Election, the Company is authorized to withhold from any cash remuneration (or, if
Optionee is not a Section 16 Person, Stock remuneration, including withholding any shares of Stock
distributable to Optionee upon exercise of this Option) then or thereafter payable to Optionee any
tax required to be withheld by reason of the exercise of this Option or the disposition of shares
of Stock acquired by exercise of this Option. For purposes of this Agreement, the term “Section 16
Person” means an officer, director or affiliate of the Company or a former officer, director or
affiliate of the Company who is subject to Section 16 of the Securities Exchange Act of 1934, as
amended (“1934 Act”).
5. Status of Stock. The Company shall not be obligated to issue any Stock pursuant to
this Option at any time when the shares covered hereby have not been registered under the
Securities Act of 1933, as amended (the “1933 Act”), and such other state and federal laws, rules
and regulations as the Committee deems applicable and, in the opinion of legal counsel for the
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Company, there is no exemption from the registration requirements of such laws, rules and
regulations available for the issuance and sale of such shares. The Company intends to register
for issuance under the 1933 Act the shares of Stock acquirable upon exercise of this Option, and to
keep such registration effective throughout the period this Option is exercisable. In the absence
of such effective registration or an available exemption from registration under the 1933 Act,
issuance of shares of Stock acquirable upon exercise of this Option will be delayed until
registration of such shares is effective or an exemption from registration under the 1933 Act is
available. The Company intends to use its reasonable efforts to ensure that no such delay will
occur. In the event exemption from registration under the 1933 Act is available upon an exercise
of this Option, Optionee (or the person permitted to exercise this Option in the event of
Optionee’s death or incapacity), if requested by the Company to do so, will execute and deliver to
the Company in writing an agreement containing such provisions as the Company may require to assure
compliance with applicable securities laws.
Optionee agrees that the shares of Stock which Optionee may acquire by exercising this Option
will not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. Optionee also agrees that (i) the certificates
representing the shares of Stock purchased under this Option may bear such legend or legends as the
Committee deems appropriate in order to assure compliance with applicable securities laws, (ii) the
Company may refuse to register the transfer of the shares of Stock purchased under this Option on
the stock transfer records of the Company if such proposed transfer would in the opinion of counsel
satisfactory to the Company constitute a violation of any applicable securities law, and (iii) the
Company may give related instructions to its transfer agent, if any, to stop registration of the
transfer of the shares of Stock purchased under this Option.
6. Recapitalization or Reorganization
(a) No Effect on Right or Power. The existence of this Option shall not affect
in any way the right or power of the Board or the stockholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in the Company’s
or any Affiliate’s capital structure or its business, any merger or consolidation of the
Company or any Affiliate, any issue of debt or equity securities ahead of or affecting the
Stock or the rights thereof, the dissolution or liquidation of the Company or any Affiliate
or any sale, lease, exchange or other disposition of all or any part of its assets or
business or any other corporate act or proceeding.
(b) Subdivision or Consolidation of Shares; Stock Dividends. The shares with
respect to which this Option may be exercised are shares of Stock as presently constituted,
but if, and whenever, prior to the expiration of this Option, the Company shall effect a
subdivision or consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock with respect
to which this Option may thereafter be exercised (i) in the event of an increase in the
number of outstanding shares shall be proportionately increased, and the purchase price per
share shall be proportionately reduced, and (ii) in the event of a reduction in the number
of outstanding shares shall be proportionately reduced, and the
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purchase price per share shall be proportionately increased. Any fractional share
resulting from such adjustment shall be rounded up to the next whole share.
(c) Recapitalizations and Corporate Changes. If the Company recapitalizes,
reclassifies its capital stock, or otherwise changes its capital structure (a
“recapitalization”), the number and class of shares of Stock in respect of which this Option
has not been exercised shall be adjusted so that this Option shall thereafter cover the
number and class of shares of stock and securities to which Optionee would have been
entitled pursuant to the terms of the recapitalization if, immediately prior to the
recapitalization, Optionee had been the holder of record of the number of shares of Stock
then covered by this Option. If (i) the Company shall not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of an entity), (ii) the Company
sells, leases or exchanges or agrees to sell, lease or exchange all or substantially all of
its assets to any other person or entity, (iii) the Company is to be dissolved and
liquidated, (iv) any person or entity, including a “group” as contemplated by Section
13(d)(3) of the 1934 Act, acquires or gains ownership or control (including, without
limitation, power to vote) of more than 40% of the outstanding shares of the Company’s
voting stock (based upon voting power), or (v) as a result of or in connection with a
contested election of Directors (defined below), the persons who were Directors of the
Company before such election shall cease to constitute a majority of the Board (each such
event is referred to herein as a “Corporate Change”), no later than (x) 10 days after the
approval by the stockholders of the Company of such merger, consolidation, reorganization,
sale, lease or exchange of assets or dissolution or such election of Directors or (y) 30
days after a Corporate Change of the type described in clause (iv), the Committee, acting in
its sole discretion without the consent or approval of Optionee, shall effect one or more of
the following alternatives in an equitable and appropriate manner to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available under this
Option, which alternatives may vary among individual holders of options or other derivative
or other securities of the Company and which may vary among options or other derivative or
other securities of the Company held by Optionee: (1) accelerate the time at which this
Option may be exercised so that it may be exercised in full for a limited period of time on
or before a specified date (before or after such Corporate Change) fixed by the Committee,
after which specified date, this Option, to the extent theretofore not exercised, and all
rights of Optionee in respect thereof shall terminate, (2) require the mandatory surrender
to the Company by Optionee of this Option (irrespective of whether it then is exercisable)
as of a date, before or after such Corporate Change, specified by the Committee, in which
event the Committee shall thereupon cancel this Option and the Company shall pay (or cause
to be paid) to Optionee an amount of cash per share equal to the excess, if any, of the
Change of Control Value (as calculated in accordance with subparagraph (d) below) of the
shares subject to this Option over the exercise price under this Option for such shares, or
(3) make such adjustments to this Option as the Committee deems appropriate to reflect such
Corporate Change (provided, however, that the Committee may determine in its sole discretion
that no adjustment is necessary to this Option), including, without limitation, adjusting
this Option to provide that the number and class of shares of Stock covered by this Option
shall be adjusted so that this Option shall thereafter cover securities of the surviving or
acquiring corporation or other property (including, without limitation, cash) as
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determined by the Committee in its sole discretion. “Director” means an individual elected to the Board by the
stockholders of the Company or by the Board under applicable corporate law who is serving on
the Board on the Effective Date or is elected to the Board after such date.
(d) Change of Control Value. For the purposes of clause (2) in Subparagraph
(c) above, the “Change of Control Value” shall equal the amount determined in clause (i),
(ii) or (iii), whichever is applicable, as follows: (i) the per share price offered to
stockholders of the Company in any such merger, consolidation, sale of assets or dissolution
transaction, (ii) the price per share offered to stockholders of the Company in any tender
offer or exchange offer whereby a Corporate Change takes place, or (iii) if such Corporate
Change occurs other than pursuant to a tender or exchange offer, the fair market value per
share of the shares into which such Options being surrendered are exercisable, as determined
by the Committee as of the date determined by the Committee to be the date of cancellation
and surrender of such Options. In the event that the consideration offered to stockholders
of the Company in any transaction described in this Subparagraph (d) or Subparagraph (c)
above consists of anything other than cash, the Committee shall determine the fair cash
equivalent of the portion of the consideration offered which is other than cash.
(e) Other Changes in the Stock. In the event of changes in the outstanding
Stock by reason of recapitalizations, reorganizations, mergers, consolidations,
combinations, split-ups, split-offs, spin-offs, exchanges or other relevant changes in
capitalization or distributions to the holders of Stock occurring after the Effective Date
and not otherwise provided for by this Paragraph 6, this Option shall be subject to
adjustment by the Committee at its sole discretion as to the number and price of shares of
Stock or other consideration subject to this Option. In the event of any such change in the
outstanding Stock or distribution to the holders of Stock, the aggregate number of shares
available under this Option may be appropriately adjusted by the Committee, whose
determination shall be conclusive.
(f) Stockholder Action. Any adjustment provided for in the above Subparagraphs
shall be subject to any required stockholder action.
(g) No Adjustments unless Otherwise Provided. Except as hereinbefore expressly
provided, the issuance by the Company of shares of stock of any class or securities
convertible into shares of stock of any class, for cash, property, labor or services, upon
direct sale, upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares or other
securities, and in any case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of shares of Stock
subject to this Option or the purchase price per share.
7. Employment Relationship. For purposes of this Agreement, Optionee shall be
considered to be in the employment of the Company as long as Optionee remains an employee of either
the Company, an Affiliate, or a corporation or a parent or subsidiary of such corporation assuming
or substituting a new option for this Option. Without limiting the scope of the
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preceding sentence, it is expressly provided that Optionee shall be considered to have terminated
employment with the Company at the time of the termination of the “Affiliate” status of the
entity or other organization that employs Optionee and the Company. Nothing contained in this
Option shall (i) confer upon Optionee any right with respect to continuation of employment with the
Company or any Affiliate or (ii) interfere in any way with the right of the Company or any
Affiliate to terminate his or her employment at any time. Any question as to whether and when
there has been a termination of such employment, and the cause of such termination, shall be
determined by the Committee and its determination shall be final.
8. No Restriction on Corporate Action. Nothing contained herein shall be construed to
prevent the Company or any Affiliate from taking any action which is deemed by the Company or such
Affiliate to be appropriate or in its best interest, whether or not such action would have an
adverse effect on this Option. Neither Optionee nor any other person shall have any claim against
the Company or any Affiliate as a result of any such action.
9. Transfer Restrictions and Binding Effect. This Option and Optionee’s rights and
duties under this Agreement shall not be transferable or delegable otherwise than (i) by will or
the laws of descent and distribution, (ii) pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder, or (iii) with the consent of the Committee. This Agreement shall be
binding upon and inure to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
10. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with regard to the subject matter hereof; provided, that the terms of this Agreement shall not
modify and shall be subject to the terms and conditions of any employment or severance agreement
between the Company (or an Affiliate) and the Optionee in effect on the date a determination is
made under this Agreement. Without limiting the scope of the preceding sentence, (i) all prior
understandings and agreements, if any, among the parties hereto relating to the subject matter
hereof are hereby null and void and of no further force and effect, and (ii) this Agreement and
this Option replace the Mariner Stock Option, and Optionee shall have no right or claim against the
Company or its Affiliates in respect of the Mariner Stock Option. Any modification of this
Agreement shall be effective only if it is in writing and signed by both Optionee and an authorized
officer of the Company. Optionee acknowledges that the terms and conditions of this Option and
Agreement, as may be amended from time to time, may not be identical to the terms and conditions of
other options or derivative or other securities of the Company outstanding from time to time.
11. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof,
and applicable federal law.
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