exv10w21






Exhibit 10.21




Apache Corporation 401(k) Savings Plan




Amendment



Apache Corporation (“Apache”) sponsors the Apache Corporation 401(k) Savings Plan (the “Plan”). In
section 10.4 of the Plan, Apache reserved the right to amend the Plan from time to time. Apache
hereby exercises that right by amending the Plan as follows.





	1.	 	 	Effective as of January 1, 2009, section 6.7(c)(i) is replaced by the following.






	 	(i)	 	Participants, Spouses, and Alternate Payees. For a
Participant, an Alternate Payee who is the Spouse or former Spouse of the
Participant, or a surviving Spouse of a deceased Participant, an eligible
retirement plan is an individual retirement account or annuity described in
Code §408(a) or §408(b), a Roth IRA, an annuity plan described in Code
§403(a), an annuity contract described in Code §403(b), an eligible plan
under Code §457(b) that is maintained by an eligible employer described in
Code §457(e)(1)(A) (which generally includes state and local governments), or
the qualified trust of a defined contribution plan described in Code §401(a),
that accepts eligible rollover distributions.






	2.	 	 	Effective as of January 1, 2002, section 12.2 is replaced by the following.






	 	12.2	 	Determination of Top-Heavy Status.
	 
	 	 	 	The Plan shall be considered “top-heavy” for a Plan Year if, as of the last day of the
prior Plan Year, the aggregate of the Account balances (as calculated according to the
regulations under Code §416) of Key Employees under this Plan (and under all other plans
required or permitted to be aggregated with this Plan) exceeds 60% of the aggregate of
the Account balances (as calculated according to the regulations under Code §416) in
this Plan (and under all other plans required or permitted to be aggregated with this
Plan) of all current Employees and all former Employees who had performed services for
Apache or an Affiliated Entity within the one-year period ending on the last day of the
prior Plan Year. This ratio shall be referred to as the “top-heavy ratio”. For
purposes of determining the account balance of any Participant, (a) the balance shall be
determined as of the last day of the prior Plan Year, (b) the balance shall also include
any distributions to the Participant during the one-year period ending on the last day
of the prior Plan Year, and (c) the balance shall also include, for distributions made
for a reason other than severance of employment or death or disability, any
distributions to the Participant during the five-year period ending on the last day of
the prior Plan Year. This shall also apply to distributions under a terminated plan
that, if it had not been terminated, would have been required to be included in an
aggregation group. The Account balances of a Participant who had once been a Key
Employee, but who is not a Key Employee during the Plan Year, shall not be taken into
account. The following plans must be aggregated with this Plan for the top-heavy test:
(a) a qualified plan maintained by the Company or an Affiliated Entity in which a Key
Employee participated during this Plan Year or during the previous four Plan Years and
(b) any other qualified plan maintained by the Company or an Affiliated Entity that
enables this Plan or any plan described in clause (a) to meet the requirements of Code
§401(a)(4) or §410. The following plans may be aggregated with this Plan for the
top-heavy test: any qualified plan maintained by the Company or an Affiliated Entity
that, in combination with the Plan or any plan required to be aggregated with this Plan
when testing this Plan for top-heaviness, would satisfy the requirements of Code
§401(a)(4) and §410. If one or more of the plans required or permitted to be aggregated
with this Plan is a defined benefit plan, a Participant’s “account balance” shall equal
the present value of the Participant’s accrued benefit. If the aggregation group
includes more than one defined benefit plan, the same actuarial assumptions shall be
used with respect to each such defined benefit plan. The foregoing top-heavy ratio
shall be computed in accordance with the provisions of Code §416(g), together with the
regulations and rulings thereunder.




 









 












	3.	 	 	Effective as of January 1, 2009, Article XV is replaced by the following.





Article XV




Uniformed Services Employment and Reemployment Rights Act of 1994





	 	15.1	 	General.






	 	(a)	 	Scope. The Uniformed Services Employment and Reemployment
Rights Act of 1994 (the “USERRA”), which is codified at 38 USCA §§4301-4318,
confers certain rights on individuals who leave civilian employment to perform
certain services in the Armed Forces, the National Guard, the commissioned corps of
the Public Health Service, or in any other category designated by the President of
the United States in time of war or emergency (collectively, the “Uniformed
Services”). An Employee who joins the Uniformed Services shall be referred to as a
“Serviceman” in this Article. This Article shall be interpreted to provide such
individuals with all the benefits required by the USERRA but no greater benefits
than those required by the USERRA. This Article shall supersede any contrary
provisions in the remainder of the Plan.
	 
	 	(b)	 	Rights of Servicemen. When a Serviceman leaves the Uniformed
Services, he may have reemployment rights with the Company or Affiliated Entities,
depending on many factors, including the length of his stay in the Uniformed
Services and the type of discharge he received. When this Article speaks of the
date a Serviceman’s potential USERRA reemployment rights expire, it means the date
on which the Serviceman fails to qualify for reemployment rights (if, for example,
he is dishonorably discharged, or, in general, remains in the Uniformed Services
for more than 5 years) or, if the Serviceman obtains reemployment rights, the date
his reemployment rights lapse because the Serviceman failed to timely exercise
those rights.






	 	15.2	 	While a Serviceman.
	 
	 	 	 	In general, a Serviceman shall be treated as an Employee while he continues to receive
wages or Differential Pay from the Company or an Affiliated Entity, and once the
Serviceman’s wages and Differential Pay from the Company or Affiliated Entity cease, the
Serviceman shall be treated as if he were on an approved, unpaid leave of absence. For
purposes of this Article, “Differential Pay” means the pay received by a Serviceman from
Apache and Affiliated Entities, pursuant to their military leave policies, that is
generally equal to the difference between his pay from the Armed Forces and his regular
pay from Apache and Affiliated Entities before his military leave began. Differential
Pay must also come within the meaning of “differential wage payment” in Code
§3401(h)(2). The definition of “Compensation” in Article I shall include Differential
Pay for all purposes.






	 	(a)	 	Participant Contributions. For purposes of making Participant
Contributions under section 3.2, if the Serviceman was a Covered Employee when he
became a Serviceman, he shall continue to be treated as a Covered Employee while he
continues to receive wages or Differential Pay from the Company. As a consequence,
(i) if he was a Covered Employee who had satisfied the requirements of Article II
when he became a Serviceman, he may continue to make Participant Contributions from
his wages and Differential Pay from the Company, and (ii) if he had not satisfied
the requirements of section 2.1 when he became a Serviceman, his service in the
Uniformed Services shall be treated as service with the Company in determining when
he will be able to begin making Participant Contributions under section 2.1, and if
his wages or Differential Pay from the Company continue beyond that eligibility
date, the Serviceman may begin to make Participant Contributions on such date. A
Serviceman may change his rate of contributions in the same manner as an Employee.
A Serviceman’s Participant Contributions shall cease when his wages and
Differential Pay from the Company cease.
	 
	 	(b)	 	Company Contributions. Wages and Differential Pay paid by the
Company to a Serviceman shall be included in his Compensation as if the Serviceman
were an Employee. A Serviceman’s Participant Contributions shall be matched
according to the formula in paragraph 3.1(b)(i). If the Employee was a Covered
Employee when he became a Serviceman and his wages or Differential Pay continue
through the last business day of a Plan Year, then (i) the Serviceman shall be
treated as an “eligible Participant” under subsection 3.1(a) for that Plan Year
(and shall therefore receive an allocation of any Company Discretionary
Contribution); (ii) the Serviceman




 









 






	 	 	 	shall be treated as an “eligible Participant” under paragraph 3.1(b)(ii) for that
Plan Year (and shall therefore receive an allocation of any additional match
provided under such paragraph); (iii) if he was a Non-Highly Compensated Employee
when he became a Serviceman, he shall be eligible to receive an allocation of any
QNECs and QMACs provided under subsections 3.7(c) and 3.8(c); and (iv) he shall be
treated as an Employee under subsection 12.4(a) (and, if he is a Non-Key Employee,
he shall therefore receive any minimum required allocation if the Plan is
top-heavy).
	 
	 	(c)	 	Investments. If the Serviceman has an account balance in the
Plan, he is an Account Owner and may therefore direct the investment of his
Accounts pursuant to section 9.3 and Article XIV.
	 
	 	(d)	 	Loans. For purposes of borrowing from the Plan under Article
VII, a Serviceman shall be treated as an Employee until the day on which his
potential USERRA reemployment rights expire. If a Serviceman with an outstanding
loan continues to receive wages or Differential Pay from the Company or an
Affiliated Entity after joining the Uniformed Services, his loan payments shall
continue to be deducted from those wages and Differential Pay. Once the
Serviceman’s wages and Differential Pay cease, his loan payments shall be suspended
until the earlier of (i) his reemployment with the Company or an Affiliated Entity
or (ii) the day on which his potential USERRA reemployment
rights expire. The Serviceman may repay all or part of his loan at any time during the suspension.
During the payment suspension, interest shall accrue on the unpaid balance of the
loan. See subsections 15.3(b) and 15.4(c) for the resumption of loan payments for
a reemployed Serviceman, and subsection 15.3(a) for the timing of the loan’s
default if the Serviceman is not reemployed.
	 
	 	(e)	 	Distributions and Withdrawals. For purposes of Article VI
(relating to distributions and in-service withdrawals), the Serviceman shall be
treated as an Employee until the day on which his potential USERRA reemployment
rights expire, with one exception. The Serviceman shall be treated as having had a
severance from employment on the date he became a Serviceman with respect to any
benefits accrued from his Differential Pay; however, if the Serviceman takes such a
distribution, his Participant Contributions [and any deemed Participant
Contributions under subsection (h)] shall cease for six months from the date of the
distribution.. See section 15.3 once his potential USERRA rights expire.
	 
	 	(f)	 	QDROs. QDROs shall be processed while the Participant is a
Serviceman. The Committee has the discretion to establish special procedures under
subsection 13.9(e) for Servicemen, by, for example, extending the usual deadlines
to accommodate any practical difficulties encountered by the Serviceman that are
attributable to his service in the Uniformed Services.
	 
	 	(g)	 	Rollovers. If the Serviceman was a Covered Employee when he
became a Serviceman, the Serviceman may make Rollover Contributions pursuant to
subsection 3.2(d) until the day on which his potential USERRA reemployment rights
expire.
	 
	 	(h)	 	Death or Disability. If a Serviceman dies or becomes disabled
while he is a Serviceman, his Account shall be fully vested. In addition, the
Serviceman will be treated as if he had returned to active employment and then died
or became disabled, with the result that he will receive the make-up contributions
under subsections 15.4(e), 15.4(f), and 15.4(g), and to the extent those are based
on his Participant Contributions, he shall be also treated as if he had continued
making Participant Contributions from his Deemed Compensation at the average rate
he actually made Participant Contributions during the 12 months (or, if less his
actual length of service with Apache and Affiliated Entities) immediately before he
became a Serviceman.






	 	15.3	 	Expiration of USERRA Reemployment Rights.






	 	(a)	 	Consequences. If a Serviceman is not reemployed before his
potential USERRA reemployment rights expire, the Committee shall determine his
Termination From Service Date by treating his service in the Uniformed Services as
an approved leave of absence but treating the expiration of his potential USERRA
reemployment rights as the failure to timely return from his leave of absence, with
the consequence that his Termination From Service Date will generally be the date
his potential USERRA rights expired. Once his Termination From Service Date has
been determined, the Committee shall determine his vested percentage. For purposes
of Article VI




 









 







	 	 	 	(relating to distributions), the day the Serviceman’s potential USERRA
reemployment rights expired shall be treated as the day of his Termination from
Service. For purposes of subsection 5.4(b) (relating to the timing of
forfeitures), the Serviceman’s last day of employment shall be the day his
potential USERRA reemployment rights expired. If the Serviceman has an
outstanding loan from this Plan when his potential USERRA reemployment rights
expire, his loan shall go into default on the last day of the calendar quarter
after the calendar quarter in which his potential USERRA reemployment rights
expired, unless, before the loan goes into default, he repays the loan or is
rehired pursuant to subsection (b).
	 
	 	(b)	 	Rehire after Expiration of Reemployment Rights. If the Company
or an Affiliated Company hires a former Serviceman after his potential USERRA
reemployment rights have expired, he shall be treated like any other former
employee who is rehired. If he had an outstanding loan and is reemployed before
the loan goes into default pursuant to subsection (a), his loan payments shall be
recalculated and the Company or Affiliated Entity shall immediately resume
withholding the revised loan payments from his pay. The term of the loan when
payments resume shall be equal to the remaining term of the loan when payments were
suspended.






	 	15.4	 	Return From Uniformed Service.






	 	 	 	This section applies solely to a Serviceman who returns to employment with the Company
or an Affiliated Entity because he exercised his reemployment rights under the USERRA.






	 
	 	(a)	 	Credit for Service. A Serviceman’s length of time in the
Uniformed Services shall be treated as service with the Company for purposes of
vesting and determining his eligibility to participate in the Plan upon
reemployment.
	 
	 	(b)	 	Participation. If the Serviceman satisfies the eligibility
requirements of section 2.1 before his reemployment, and he is a Covered Employee
upon his reemployment, he may participate in the Plan immediately upon his return.
	 
	 	(c)	 	Loans. If the Serviceman’s loan payments were suspended under
subsection 15.2(d) during his time in the Uniformed Services, his loan payments
shall be recalculated and the Company or Affiliated Entity shall immediately resume
withholding the revised loan payments from his pay. The term of the loan when
payments resume shall be equal to the remaining term of the loan when payments were
suspended.
	 
	 	(d)	 	Make-Up Participant Contributions. In addition to his regular
Participant Contributions, a returning Serviceman shall be permitted to make
additional contributions up to the amount of Participant Contributions he could
have made if, instead of becoming a Serviceman, he had remained employed by the
Company or Affiliated Entity and been paid his Deemed Compensation during that
time. See subsection (h) for guidance on applying the various limits contained in
the Code to the calculation of the maximum additional contribution the returning
Serviceman may make. Such additional contributions may only be made within a
period that begins on his reemployment date and whose duration is the lesser of
five years or three times his length of time in the Uniformed Services. The
additional contributions shall be withheld from his Compensation pursuant to the
Serviceman’s election. The Committee shall establish administrative procedures for
such elections. The additional contributions shall be allocated to Participant
Contributions Accounts.
	 
	 	(e)	 	Make-Up Match. For each additional contribution that the
Serviceman contributes pursuant to subsection (d), the Company shall promptly
contribute to his Accounts an additional matching contribution. The additional
matching contribution shall be equal to the Company Matching Contribution
(including forfeitures treated as Company Matching Contributions) that he would
have received if (i) his additional contributions were Participant Contributions
made during his time in the Uniformed Services, and (ii) he was paid his Deemed
Compensation during his time in the Uniformed Services. The Serviceman’s
additional contributions shall be spread over the pay periods in which they could
have occurred in such a way as to maximize the additional matching contribution.
See subsection (h) for guidance on applying the various limits contained in the
Code to the calculation of the additional matching contribution. The additional
matching contribution shall be allocated to the Participant’s Company Contributions
Account unless the




 









 






	 	 	 	additional matching contribution would have been designated a QMAC, in which case
it shall be allocated to his Participant Contributions Account.
	 







	 	(f)	 	Make-Up Company Discretionary Contribution. The Company shall
contribute an additional contribution to a Serviceman’s Accounts equal to the
Company Discretionary Contribution (including any forfeitures treated as Company
Discretionary Contributions) that would have been allocated to such Accounts if the
Serviceman had remained employed during his time in the Uniformed Services, and had
earned his Deemed Compensation during that time. See subsection (h) for guidance
on applying the various limits contained in the Code to the calculation of the
additional discretionary contribution. The additional discretionary contribution
shall be allocated to the Participant’s Company Contributions Account unless the
additional discretionary contribution would have been designated a QNEC, in which
case it shall be allocated to his Participant Contributions Account.
	 
	 	(g)	 	Make-Up Miscellaneous Contributions. The Company shall
contribute to the Serviceman’s Accounts any QNECs and QMACs that the Serviceman
would have received pursuant to subsection 3.7(c) or 3.8(c), and any top-heavy
minimum contribution he would have received pursuant to section 12.4, (including
any forfeitures treated as QNECs, QMACs, or top-heavy minimum contributions) if he
had remained employed during his time in the Uniformed Services, and had earned
Deemed Compensation during that time. See subsection (h) for guidance on applying
the various limits contained in the Code to the calculation of the QNECs, QMACs,
and top-heavy minimum contribution. These additional top-heavy minimum
contributions shall be allocated to Company Contributions Accounts. The additional
QNECs and QMACs shall be allocated to Participant Contributions Accounts.
	 
	 	(h)	 	Application of Limitations.





	 	(i)	 	The make-up contributions under subsections (d), (e), (f),
and (g) (the “Make-Up Contributions”) shall be ignored for purposes of
determining the Company’s maximum contribution under subsection 3.1(d), the
limits on Participant Contributions under paragraphs 3.2(a)(ii) and
3.2(b)(ii), the limits on Annual Additions under section 3.4, the ADP test of
section 3.5, the ACP test of section 3.6, the non-discrimination requirements
of Code §401(a)(4), and (if the Serviceman is a Key Employee) calculating the
minimum required top-heavy contribution under section 12.4.
	 
	 	(ii)	 	In order to determine the maximum Make-Up Contributions,
the following limitations shall apply.






	 	(A)	 	The Serviceman’s “Aggregate Compensation” for
each year shall be calculated. His Aggregate Compensation shall be
equal to his actual Compensation, plus his Deemed Compensation that
would have been paid during that year. Each type of Aggregate
Compensation (for benefit purposes, deferral purposes, etc.) shall be
determined separately.
	 
	 	(B)	 	The Serviceman’s Aggregate Compensation each
Plan Year shall be limited to the dollar limit in effect for that Plan
Year under Code §401(a)(17), for the purposes and in the manner
specified in subsection 1.14(f).
	 
	 	(C)	 	The limits of subsection 3.1(d) (relating to
the maximum contribution by the Company to the Plan) for each Plan Year
shall be calculated by using the Serviceman’s Aggregate Compensation
for that Plan Year, and by treating the Make-Up Contributions that are
attributable to that Plan Year’s Deemed Compensation as having been
made during that Plan Year.
	 
	 	(D)	 	The limits of paragraph 3.2(a)(ii) (relating to
the maximum 401(k) Contributions) and paragraph 3.2(b)(ii) (relating to
the maximum Catch-Up Contributions) for each calendar year shall be
calculated by treating as 401(k) and Catch-Up Contributions his
additional contributions pursuant to subsection (d) that are
attributable to that calendar year’s Deemed Compensation.




 









 






	 	(E)	 	The limits of section 3.4 (relating to the
maximum Annual Additions to a Participant’s Accounts) shall be
calculated for each Limitation Year by using the Serviceman’s Aggregate
Compensation for that Limitation Year, and by treating as Annual
Additions all the Make-Up Contributions that are attributable to that
Limitation Year’s Deemed Compensation.
	 
	 	(F)	 	The Serviceman’s maximum Make-Up Contributions
shall not be limited by the results of the Plan’s ADP test or ACP test
for any Plan Year in which the Serviceman has Deemed Compensation, even
if the Serviceman is treated as a Highly Compensated Employee (using
his Aggregate Compensation) for that Plan Year.






	 	(i)	 	Deemed Compensation. A Serviceman’s Deemed Compensation is the
Compensation that he would have received (including raises) had he remained
employed by the Company or Affiliated Entity during his time in the Uniformed
Services, unless it is not reasonably certain what his Compensation would have
been, in which case his Deemed Compensation shall be based on his average rate of
compensation during the 12 months (or, if shorter, his period of employment with
the Company and Affiliated Entities) immediately before he entered the Uniformed
Services. A Serviceman’s Deemed Compensation shall be reduced by any Compensation
actually paid to him during his time in the Uniformed Services (such as vacation
pay, wages, and Differential Pay). Deemed Compensation shall cease when the
Serviceman’s potential USERRA reemployment rights expire. Each type of Deemed
Compensation (for benefit purposes, deferral purposes, etc.) shall be determined
separately.





EXECUTED this 29th day of January, 2009.




	 	 	 	 	 
	 	APACHE CORPORATION

 	 
	 	By:  	/s/ Margery M. Harris
 	 
	 	 	Title: Vice President — Human Resources