REGISTRATION NO. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEWPORT NEWS SHIPBUILDING INC.
(Exact name of registrant as specified in its charter)
DELAWARE Issuer: 74-1541566
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4101 Washington Avenue
Newport News, Virginia 23607
(Address of principal executive offices)
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NEWPORT NEWS SHIPBUILDING INC. 1998 STOCK INCENTIVE PLAN
(Full title of the plan)
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STEPHEN B. CLARKSON
Vice President, General Counsel and Secretary
Newport News Shipbuilding Inc.
4101 Washington Avenue
Newport News, Virginia 23607
(757) 380-3600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
C. Porter Vaughan, III, Esquire
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-8200
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CALCULATION OF REGISTRATION FEE
======================---------------------------------------------------------
Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered per share offering price fee
- -------------------------------------------------------------------------------
Common Stock, par
value $.01 per share
(including 4,000,000
associated Rights) Shares $26.375* $105,500,000* $31,122.50*
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(*) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended (the "Securities Act") based on the average of the high and low prices
of the New York Stock Exchange on October 13, 1998.
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In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
<PAGE>
NEWPORT NEWS SHIPBUILDING INC.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Commission pursuant
to the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), are
hereby incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b The Company's Quarterly Report on Form 10-Q for the quarter ended June
21, 1998, as amended by the Amendment to the Company's Quarterly
Report on Form 10-QA for the same period; and
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
Additionally incorporated by reference into this Registration Statement is
the Description of Capital Stock section of the Company's Registration Statement
on Form 10, as amended (Registration No. 1-12385).
In addition to the foregoing, all documents subsequently filed by (i) the
Company or (ii) the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities registered hereunder have been issued or which deregisters
all securities offered then remaining unsold, shall be deemed incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement, including financial statements,
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters regarding shares of Common Stock will be passed
upon for the Company by Stephen B. Clarkson, Vice President, General Counsel
and Secretary of the Company. Mr. Clarkson beneficially owns 71,017 shares of
Company Common Stock.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") gives
Delaware corporations broad powers to indemnify their present and former
directors and officers and those of affiliated corporations against expenses
incurred in the defense of any lawsuit to which they are made parties by reason
of being or having been such directors or officers, subject to specified
conditions and exclusions, allows the advancement of costs of defending against
litigation, and permits the Company to purchase insurance on behalf of
directors, officers, employees, and agents. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any bylaws, agreement, vote of stockholders or otherwise.
The Restated Certificate of Incorporation of the Company (the
"Certificate") provides that a director of the Company will not be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or may thereafter be
amended. Based on the DGCL as presently in effect, a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
which concerns unlawful payments of dividends, stock purchases or redemptions,
or (iv) for any transactions from which the director derived an improper
personal benefit.
While the Certificate provides directors with protection from awards for
monetary damages for breaches of their duty of care, it does not eliminate such
duty. Accordingly, the Certificate will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care. The provisions of the Certificate described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
The By-laws of the Company, as amended and restated (the "By-laws"),
provide that the Company will indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may thereafter be amended,
any person (an "Indemnitee") who was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding"), by reason of the
fact that he, she, or a person for whom he or she is the legal representative,
is or was a director or officer of the Company or, while a director or officer
of the Company, is or was serving at the request of the Company as a director,
officer, employee or agent of another company or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Indemnitee. The By-laws
also provide that, notwithstanding the foregoing, but except as described in the
second following paragraph, the Company will be required to indemnify an
Indemnitee in connection with a proceeding (or part thereof) commenced by such
Indemnitee only if the commencement of such proceeding (or part thereof) by the
Indemnitee was authorized by the Company Board of Directors.
The By-laws further provide that the Company will pay the expenses
(including attorneys' fees) incurred by an Indemnitee in defending any
proceeding in advance of its final disposition, provided however, that, to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding will be made only upon receipt of an undertaking
by the Indemnitee to repay all amounts advanced if it should be ultimately
determined that the Indemnitee is not entitled to be indemnified under the
relevant section of the By-laws or otherwise.
Pursuant to the By-laws, if a claim for indemnification or payment of
expenses thereunder is not paid in full within 30 days after a written claim
therefor by the Indemnitee has been received by the Company, the Indemnitee may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, will be entitled to be paid the expense of prosecuting such claim.
The By-laws provide that, in any such action, the Company will have the burden
of proving that the Indemnitee is not entitled to the requested indemnification
or payment of expenses under applicable law.
<PAGE>
The By-laws also provide (i) that the rights conferred on any Indemnitee
thereby are not exclusive of any other rights which such Indemnitee may have or
thereafter acquire under any statute, provision of the Certificate, the By-laws,
agreement, vote of stockholders or disinterested directors or otherwise, (ii)
that the Company's obligation, if any, to indemnify or to advance expenses to
any Indemnitee who was or is serving at its request as a director, officer,
employee or agent of another company, partnership, joint venture, trust,
enterprise or nonprofit entity will be reduced by any amount such Indemnitee may
collect as indemnification or advancement of expenses from such other company,
partnership, joint venture, trust, enterprise or nonprofit enterprise, and (iii)
that any repeal or modification of the relevant provisions of the By-laws will
not adversely affect any right or protection thereunder of any Indemnitee in
respect of any act or omission occurring prior to the time of such repeal or
modification.
The By-laws also expressly state that the provisions thereof will not
limit the right of the Company, to the extent and in the manner permitted by
law, to indemnify and to advance expenses to persons other than Indemnitees when
and as authorized by appropriate corporate action.
The Company has purchased insurance which purports to insure the Company
against certain costs of indemnification which may be incurred by it pursuant to
the foregoing provision, and to insure the officers and directors of the
Company, and of its subsidiary companies, against certain liabilities incurred
by them in the discharge of their function as such officers and directors except
for liabilities resulting from their own malfeasance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
EXHIBIT NO.
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4.1 Restated Certificate of Incorporation of the Company dated as of
December 11, 1996 (incorporated by reference to the Company's
Registration Statement on Form S-4, as amended (Registration No.
333-20285)).
4.2 By-laws of the Company, as amended and restated, dated as of
October 12, 1998.
4.3 Specimen Certificate of the Company's Common Stock (incorporated by
reference to the Company's Registration Statement on Form 10,
dated October 30, 1996, as amended (Registration No. 1-12385)).
4.4 Form of Rights Agreement dated as of June 10, 1998, between
Newport News Shipbuilding Inc. and First Chicago Trust Company of
New York, as Rights Agent (filed as Exhibit No. 1 to the
Company's Registration Statement on Form 8A, dated June 10, 1998
(Commission File No. 001-12385)).
4.5 Form Certificate of the Voting Powers, Designations, Preferences
and Relative Participating, Optional and Other Special Rights and
Qualifications, Limitations or Restrictions of Series A
Participating Cumulative Preferred Stock of Newport News
Shipbuilding Inc. (which is attached as Exhibit A to the Rights
Agreement listed as Exhibit 4.4 hereto).
4.6 Form of Right Certificate (which is attached as Exhibit B to the
Rights Agreement listed as Exhibit 4.4 hereto).
4.7 Certificate of Elimination of Newport News Shipbuilding Inc.'s
Series A Participating Junior Preferred Stock (filed in connection
with the expiration of the Company's previous Rights Agreement),
dated June 4, 1998 (Filed as Exhibit No. 4 to the Company's
Registration Statement on Form 8A, dated June 10, 1998,
Commission File No. 001-12385).
4.8 Newport News Shipbuilding Inc. 1998 Stock Incentive Plan.
5 Opinion of Stephen B. Clarkson, Esq., regarding Common Stock.
<PAGE>
EXHIBIT NO.
- -----------
23.1 Consent of Stephen B. Clarkson, Esq. (included in Exhibit 5).
23.2 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on Signature Page).
ITEM 9. UNDERTAKINGS.
A. SUBSEQUENT DISCLOSURE.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Company, pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
B. INCORPORATION BY REFERENCE.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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. COMMISSION POSITION ON INDEMNIFICATION.
The Company hereby undertakes that, insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newport News, Commonwealth of Virginia, on the 12
day of October, 1998.
NEWPORT NEWS SHIPBUILDING INC.
BY /s/ Stephen B. Clarkson
-----------------------------------
Stephen B. Clarkson
Vice President, General Counsel and Secretary
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
POWER OF ATTORNEY
Each of the undersigned, in his capacity as officer or director, or both,
as the case may be, of Newport News Shipbuilding Inc. does hereby appoint
Stephen B. Clarkson and David J. Anderson, and each of them severally, his true
and lawful attorneys or attorney to execute in his name, place and stead, in his
capacity as director or officer, or both as the case may be, this Registration
Statement and any and all amendments and post-effective amendments thereto, and
all instruments necessary or incidental in connection therewith and to file the
same with the Securities and Exchange Commission. Each of said attorneys shall
have power to act hereunder with or without the other attorney and shall have
full power and authority to do and perform in the name and on behalf of each of
said directors or officers, or both as the case may be, every act whatsoever
requisite or necessary to be done in the premises, as fully and to all intents
and purposes as which each of said officers or directors, or both as the case
may be, might or could do in person, hereby ratifying and confirming all that
said attorneys or attorney may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C>
/s/ William P. Fricks
- -------------------------- Chairman and Chief October 8, 1998
William P. Fricks Executive Officer
/s/ David J. Anderson
- --------------------------- Senior Vice President and October 8, 1998
David J. Anderson Chief Financial Officer
/s/ Charles P. Wingfield, Jr.
- ---------------------------- Vice President and October 8, 1998
Charles P. Wingfield, Jr. Controller
/s/ Gerald L. Baliles
- ---------------------------- Director October 12, 1998
Hon. Gerald L. Baliles
/s/ Leon A. Edney
- ----------------------------- Director October 12, 1998
Leon A. Edney, Admiral (Ret.)
/s/ W. R. Harvey
- ---------------------------- Director October 12, 1998
Dr. William R. Harvey
- ---------------------------- Director _________, 1998
Dana G. Mead
/s/ Joseph J. Sisco
- ---------------------------- Director October 12, 1998
Dr. Joseph J. Sisco
/s/ Stephen R. Wilson
- ---------------------------- Director October 12, 1998
Stephen R. Wilson
</TABLE>
<PAGE>
SIGNATURES
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Committee
appointed under the Newport News Shipbuilding Inc. 1998 Stock Incentive Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newport News,
Commonwealth of Virginia on the 12 day of October, 1998.
NEWPORT NEWS SHIPBUILDING INC.
1998 STOCK INCENTIVE PLAN
By: /s/ Alfred Little, Jr.
---------------------------
Alfred Little, Jr.
Vice President, Human Resources
and EH&S of Newport News Shipbuilding Inc.
<PAGE>
EXHIBIT INDEX
EXHIBIT NO.
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4.1 Restated Certificate of Incorporation of the Company dated as of
December 11, 1996 (incorporated by reference to the Company's
Registration Statement on Form S-4, as amended (Registration No.
333-20285)).
4.2 By-laws of the Company, as amended and restated, dated as of
October 12, 1998.
4.3 Specimen Certificate of the Company's Common Stock (incorporated by
reference to the Company's Registration Statement on Form 10,
dated October 30, 1996, as amended (Registration No. 1-12385)).
4.4 Form of Rights Agreement dated as of June 10, 1998, between
Newport News Shipbuilding Inc. and First Chicago Trust Company of
New York, as Rights Agent (filed as Exhibit No. 1 to the
Company's Registration Statement on Form 8A, dated June 10, 1998
(Commission File No. 001-12385)).
4.5 Form Certificate of the Voting Powers, Designations, Preferences
and Relative Participating, Optional and Other Special Rights and
Qualifications, Limitations or Restrictions of Series A
Participating Cumulative Preferred Stock of Newport News
Shipbuilding Inc. (which is attached as Exhibit A to the Rights
Agreement listed as Exhibit 4.4 hereto).
4.6 Form of Right Certificate (which is attached as Exhibit B to the
Rights Agreement listed as Exhibit 4.4 hereto).
4.7 Certificate of Elimination of Newport News Shipbuilding Inc.'s
Series A Participating Junior Preferred Stock (filed in connection
with the expiration of the Company's previous Rights Agreement),
dated June 4, 1998 (Filed as Exhibit No. 4 to the Company's
Registration Statement on Form 8A, dated June 10, 1998,
Commission File No. 001-12385).
4.8 Newport News Shipbuilding Inc. 1998 Stock Incentive Plan.
5 Opinion of Stephen B. Clarkson, Esq., regarding Common Stock.
23.1 Consent of Stephen B. Clarkson, Esq. (included in Exhibit 5).
23.2 Consent of Independent Public Accountants.
24.1 Powers of Attorney (included on Signature Page).
Exhibit 4.2
BY-LAWS
OF
NEWPORT NEWS SHIPBUILDING INC.
AMENDED AND RESTATED AS OF OCTOBER 12, 1998
ARTICLE I
PLACE OF STOCKHOLDER MEETINGS
Section 1. All meetings of the stockholders of the corporation shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors of the corporation (the
"Board"), or as shall be specified or fixed in the respective notices or waivers
of notice thereof.
ANNUAL MEETING
Section 2. The Annual Meeting of Stockholders shall be held on such date
and at such time as may be fixed by the Board and stated in the notice thereof,
for the purpose of electing directors and for the transaction of only such other
business as is properly brought before the meeting in accordance with these
By-Laws.
To be properly brought before the meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (b) otherwise properly brought before the meeting by
or at the direction of the Board, or (c) otherwise properly brought before the
meeting by a stockholder entitled to vote there at. In addition to any other
applicable requirements, for business to be properly brought before the Annual
Meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the corporation not later than the close of business on the seventieth day nor
earlier than the close of business on the ninetieth day prior to the first
anniversary of the preceding year's Annual Meeting: provided, however, that in
the event that the date of the Annual Meeting is more than twenty (20) days
before or more than seventy (70) days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth day prior to such Annual Meeting and not later than
the close of business on the later of the seventieth day prior to such Annual
Meeting or the tenth day following the day on which public announcement of the
date of such meeting is first made by the corporation; provided, that for
purposes of this Section 2, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor
section or act thereto. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the Annual Meeting
(i) a reasonably complete and specific description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, and in the event that such business includes a proposal
to amend the By-laws of the corporation, the language of the proposed amendment,
(ii) the name and record address of the stockholder proposing such business, as
they appear in the corporation's books, and of the beneficial owner, if any, on
whose behalf the proposal is being made, (iii) the class and number of shares of
the corporation which are beneficially owned by the stockholder, and by such
beneficial owner, if any, (iv) any material interest of the stockholder, and of
such beneficial owner, if any, in such business, (v) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business, and (vi) a representation whether the stockholder or such
beneficial owner, if any, intends or is part of a group which intends to (a)
deliver a proxy statement and form of proxy to holders of at least the
percentage of the corporation's outstanding stock required to approve or adopt
the proposal and/or otherwise solicit proxies from stockholders in support of
such proposal.
<PAGE>
Notwithstanding anything in these By-Laws to the contrary, no business
shall be transacted at the Annual Meeting except in accordance with the
procedures set forth in this Section, provided, however, that nothing in this
Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the Annual Meeting.
The Chairman of the Annual Meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
SPECIAL MEETING
Section 3. Subject to the rights of the holders of any series of preferred
stock, par value $.01 per share, of the corporation (the "Preferred Stock") to
elect additional directors under specified circumstances, special meetings of
the stockholders shall be called by the Board. The business transacted at a
special meeting shall be confined to the purposes specified in the notice
thereof. Special meetings shall be held at such date and at such time as the
Board may designate.
NOTICE OF MEETING
Section 4. Written notice of each meeting of stockholders, stating the
place, date and hour of the meeting, and the purpose or purposes thereof, shall
be mailed not less than ten nor more than sixty days before the date of such
meeting to each stockholder entitled to vote thereat.
QUORUM
Section 5. Unless otherwise provided by statute, the holders of shares of
stock entitled to cast a majority of votes at a meeting, present either in
person or by proxy, shall constitute a quorum at such meeting. The Secretary of
the corporation or in his absence an Assistant Secretary or an appointee of the
presiding officer of the meeting, shall act as the Secretary of the meeting.
VOTING
Section 6. Except as otherwise provided by law or the Restated Certificate
of Incorporation, each stockholder entitled to vote at any meeting shall be
entitled to one vote, in person, by written proxy or by proxy transmitted or
authorized for transmission by any electronic means, including, but not limited
to, telegram, cablegram, telephone and internet, for each share held of record
on the record date fixed as provided in Section 4 of Article V of these By-Laws
for determining the stockholders entitled to vote at such meeting. Except as
otherwise provided by law, the Restated Certificate of Incorporation or these
By-Laws, the vote of a majority of any quorum shall be sufficient to elect
directors and to pass any resolution within the power of the holders of all the
outstanding shares.
Elections of directors need not be by written ballot; provided, however,
that by resolution duly adopted, a vote by written ballot may be required.
PROXIES
Section 7. Each stockholder entitled to vote at a meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy, but no
such proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument revoking the proxy or by delivering a proxy in
accordance with applicable law bearing a later date to the Secretary of the
corporation. In order to be exercised at a meeting of stockholders, proxies
shall be delivered to the Secretary of the corporation or his representative at
or before the time of such meeting.
<PAGE>
INSPECTORS
Section 8. At each meeting of the stockholders the polls shall be opened
and closed; the proxies and ballots shall be received and be taken in charge,
and all questions touching the qualification of voters and the validity of
proxies and the acceptance or rejection of votes shall be decided by three
Inspectors, two of whom shall have power to make a decision. Such Inspectors
shall be appointed by the Board before the meeting, or in default thereof by the
presiding officer at the meeting, and shall be sworn to the faithful performance
of their duties. If any of the Inspectors previously appointed shall fail to
attend or refuse or be unable to serve, substitutes shall be appointed by the
presiding officer.
CONDUCT OF MEETINGS
Section 9. The date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting by the chairman of the meeting. The Board may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by
the chairman of the meeting, may include, without limitation, the following: (i)
the establishment of an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting to
stockholders of record of the corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
ARTICLE II
BOARD OF DIRECTORS
NUMBER; METHOD OF ELECTION;
TERMS OF OFFICE AND QUALIFICATION
Section 1. The business and affairs of the corporation shall be managed
under the direction of the Board. The number of directors which shall constitute
the entire Board shall not be less than three nor more than sixteen and shall be
determined from time to time by resolution adopted by a majority of the entire
Board.
Nominations of persons for election to the Board of the corporation at the
Annual Meeting of Stockholders may be made by or at the direction of the Board
of Directors, by any nominating committee or person appointed by the Board, or
by any stockholder of the corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this Article II. Such nominations, other than those made by or at the direction
of the Board (or by any nominating committee or person appointed by the Board),
shall be made pursuant to timely notice in writing to the Secretary of the
corporation. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the corporation not later than
the close of business on the seventieth day nor earlier
<PAGE>
than the close of business on the ninetieth day prior to the first anniversary
of the preceding year's Annual Meeting: provided, however, that in the event
that the date of the Annual Meeting is more than twenty (20) days before or more
than seventy (70) days after such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the
ninetieth day prior to such Annual Meeting and not later than the close of
business on the later of the seventieth day prior to such Annual Meeting or the
tenth day following the day on which public announcement of the date of such
meeting is first made by the corporation; provided, that for purposes of this
Section 1, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or any successor section or act
thereto (the "Exchange Act"). A stockholder's notice to the Secretary shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A and Rule 14a-11 under the Exchange Act (and such
persons written consent to being named in the proxy statement as a nominee and
to serving as a director if elected), (b) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination is made
(i) the name and record address of the stockholder proposing such nomination, as
they appear in the corporation's books, and such beneficial owner, if any, (ii)
the class and number of shares of the corporation which are beneficially owned
by the stockholder, and such beneficial owner, if any, (iii) a representation
that the stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such nomination, and (iv) a representation whether the
stockholder or such beneficial owner, if any, intends or is part of a group
which intends to (a) deliver a proxy statement and form of proxy to holders of
at least the percentage of the corporation's outstanding stock required to elect
the nominee and/or otherwise solicit proxies from stockholders in support of
such nomination. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as a director of the
corporation. No person shall be eligible for election as a director of the
corporation at the Annual Meeting of Stockholders unless nominated in accordance
with the procedures set forth herein. The Chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Any director may resign his office at any time by delivering his
resignation in writing to the corporation, and the acceptance of such
resignation unless required by the terms thereof shall not be necessary to make
such resignation effective.
No person who shall have attained the age of 72 shall be eligible for
election or reelection, as the case may be, as a director of the corporation,
except that the foregoing qualification shall not apply to any director who, at
the time of the adoption of these By-Laws, is then in office and has attained
such age.
MEETINGS
Section 2. The Board may hold its meetings and have an office in such place
or places within or without the State of Delaware as the Board by resolution
from time to time may determine.
The Board may in its discretion provide for regular or stated meetings of
the Board. Notice of regular or stated meetings need not be given. Special
meetings of the Board shall be held whenever called by direction of the Chief
Executive Officer, the President or any two of the directors.
Notice of any special meeting shall be given by the Secretary to each
director either by mail or by telegram, facsimile, telephone or other electronic
communication or transmission. If mailed, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least three days before such meeting. If by telegram, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph corporation at least twenty-four hours before such meeting. If by
facsimile, telephone or other electronic communication or transmission, such
notice shall be transmitted at least twenty-four hours before such meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
<PAGE>
Except as otherwise provided by applicable law, at any meeting at which
every director shall be present, even though without notice, any business may be
transacted. No notice of any adjourned meeting need be given.
The Board shall meet immediately after election, following the Annual
Meeting of Stockholders, for the purpose of organizing, for the election of
corporate officers as hereinafter specified, and for the transaction of any
other business which may come before it. No notice of such meeting shall be
necessary.
QUORUM
Section 3. Except as otherwise expressly required by these By-Laws or by
statute, a majority of the directors then in office (but not less than one-third
of the total number of directors constituting the entire Board) shall be present
at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of the directors present
at any such meeting at which quorum is present shall be necessary for the
passage of any resolution or for an act to be the act of the Board. In the
absence of a quorum, a majority of the directors present may adjourn such
meeting from time to time until a quorum shall be present. Notice of any
adjourned meeting need not be given.
COMPENSATION OF BOARD OF DIRECTORS
Section 4. Each director (other than a director who is a salaried officer
of the corporation or of any subsidiary of the corporation), in consideration of
his serving as such, shall be entitled to receive from the corporation such
amount per annum and such fees for attendance at meetings of the Board or of any
committee of the Board (a "Committee"), or both, as the Board shall from time to
time determine. The Board may likewise provide that the corporation shall
reimburse each director or member of a Committee for any expenses incurred by
him on account of his attendance at any such meeting. Nothing contained in this
Section shall be construed to preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
ARTICLE III
COMMITTEES OF THE BOARD
COMMITTEES
Section 1. The Board shall elect from the directors an Executive Committee,
an Audit Committee, a Compensation Committee and any other Committee which the
Board may by resolution prescribe. Any such other Committee shall be comprised
of such persons and shall possess such authority as shall be set forth in such
resolution.
PROCEDURE
Section 2. (1) Each Committee shall fix its own rules of procedure and
shall meet where and as provided by such rules. Unless otherwise stated in these
By-Laws, a majority of a Committee shall constitute a quorum.
(2) In the absence or disqualification of a member of any Committee, the
members of such Committee present at any meeting, and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Fees in connection with such appointments shall be
established by the Board.
<PAGE>
REPORTS TO THE BOARD
Section 3. All completed actions by the Executive, Audit and Compensation
Committees shall be reported to the Board at the next succeeding Board meeting
and shall be subject to revision or alteration by the Board, provided, that no
acts or rights of third parties shall be affected by any such revision or
alteration.
EXECUTIVE COMMITTEE
Section 4. The Board shall elect an Executive Committee comprised of the
Chief Executive Officer and not less than four additional members of the Board.
During the interval between the meetings of the Board, the Executive Committee
shall possess and may exercise all the powers of the Board in the management and
direction of all the business and affairs of the corporation (except the matters
hereinafter assigned to the Compensation Committee) including, without
limitation, the power and authority to declare dividends and to authorize the
issuance of stock, in such manner as the Executive Committee shall deem best for
the interests of the corporation in all cases in which specific directions shall
not have been given by the Board.
COMPENSATION COMMITTEE
Section 5. The Board shall elect a Compensation Committee consisting of at
least three members of the Board, none of whom shall be officers or employees of
the corporation or of any subsidiary corporation. The Board shall appoint a
chairman of such Committee who shall be one of its members. The Compensation
Committee shall have such authority and duties as the Board by resolution shall
prescribe.
AUDIT COMMITTEE
Section 6. The Board shall elect from among its members an Audit Committee
consisting of at least three members. The Board shall appoint a chairman of said
Committee who shall be one of its members. The Audit Committee shall have such
authority and duties as the Board by resolution shall prescribe. In no event
shall a director who is also an officer or employee of the corporation or any of
its subsidiary companies serve as a member of such Committee. The Chief
Executive Officer shall have the right to attend (but not vote at) each meeting
of such Committee.
NOMINATING AND MANAGEMENT DEVELOPMENT COMMITTEE
Section 7. The Board shall elect from among its members a Nominating and
Management Development Committee consisting of at least three members. The Board
shall appoint a chairman of said Committee who shall be one of its members. The
Nominating and Management Development Committee shall have such authority and
duties as the Board by resolution shall prescribe. In no event shall a director
who is also an officer or employee of the corporation or any of its subsidiary
companies serve as a member of such Committee. The Chief Executive Officer shall
have the right to attend (but not vote at) each meeting of such Committee.
ARTICLE IV
OFFICERS
GENERAL PROVISIONS
<PAGE>
Section 1. The corporate officers of the corporation shall consist of the
following: a Chairman and/or a President, one of whom shall be designated Chief
Executive Officer and each of whom shall be chosen from the Board; one or more
Vice Chairman, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents and Assistant Vice Presidents; a General Counsel, a Secretary, one or
more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, a
Controller, and such other officers as the Board may from time to time
designate. Insofar as permitted by statute, the same person may hold two or more
offices. All officers chosen by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific
provisions of this Article IV.
The Chairman and/or President, each Vice Chairman, Executive Vice
President, Senior Vice President and Vice President, the Secretary and the
Treasurer shall be elected by the Board. Each such officer shall hold office
until his successor is elected or appointed and qualified or until his earlier
death, resignation or removal.
Any officer may be removed, with or without cause, at any time by the
Board.
A vacancy in any office may be filled for the unexpired portion of the term
in the same manner as provided in these By-Laws for election or appointment to
such office.
POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER
Section 2. The Chief Executive Officer shall have general charge and
management of the affairs, property and business of the corporation, subject to
the Board, the Executive Committee and the provisions of these By-Laws. The
Chief Executive Officer or in his absence such other individual as the Board may
select, shall preside at all meetings of the stockholders. He shall also preside
at meetings of the Board and the Executive Committee, and in his absence the
Board or the Executive Committee, as the case may be, shall appoint one of their
number to preside.
The Chief Executive Officer shall perform all duties assigned to him in
these By-Laws and such other duties as may from time to time be assigned to him
by the Board. He shall have the power to appoint and remove, with or without
cause, such officers, other than those elected by the Board as provided for in
these By-Laws, as in his judgment may be necessary or proper for the transaction
of the business of the corporation, and shall determine their duties, all
subject to ratification by the Board.
POWERS AND DUTIES OF OTHER OFFICERS
Section 3. The Chairman shall perform such duties as may from time to time
be assigned to him by the Board, the Executive Committee or the Chief Executive
Officer.
Section 4. Each Vice Chairman shall perform such duties as may from time to
time be assigned to him by the Board, the Executive Committee or the Chief
Executive Officer.
Section 5. The President shall perform such duties as may from time to time
be assigned to him by the Board, the Executive Committee or the Chief Executive
Officer.
Section 6. Each Executive Vice President shall perform such duties as may
from time to time be assigned to him by the Board, the Executive Committee or
the Chief Executive Officer.
Section 7. Each Senior Vice President shall perform such duties as may from
time to time be assigned to him by the Board, the Executive Committee or the
Chief Executive Officer.
<PAGE>
Section 8. Each Vice President and Assistant Vice President shall perform
such duties as may from time to time be assigned to him by the Board, the
Executive Committee, the Chief Executive Officer or an Executive Vice President.
Section 9. The General Counsel shall have general supervision and control
of all of the corporation's legal business. He shall perform such other duties
as may be assigned to him by the Board, the Executive Committee or the Chief
Executive Officer.
Section 10. The Secretary or an Assistant Secretary shall record the
proceedings of all meetings of the Board, the Executive Committee of the Board
and the stockholders, in books kept for that purpose. The Secretary shall be the
custodian of the corporate seal, and he or an Assistant Secretary shall affix
the same to and countersign papers requiring such acts; and he and the Assistant
Secretaries shall perform such other duties as may be required by the Board, the
Executive Committee or the Chief Executive Officer.
Section 11. The Treasurer and Assistant Treasurers shall have care and
custody of all funds of the corporation and disburse and administer the same
under the direction of the Board, the Executive Committee or the Chief Executive
Officer and shall perform such other duties as the Board, the Executive
Committee or the Chief Executive Officer shall assign to them.
Section 12. The Controller shall maintain adequate records of all assets,
liabilities and transactions of the corporation and see that audits thereof are
currently and regularly made; and he shall perform such other duties as may be
required by the Board, the Executive Committee or the Chief Executive Officer.
SALARIES AND APPOINTMENTS
Section 13. The salaries of corporate officers shall be fixed by the
Compensation Committee provided for in Section 5 of Article III hereof, except
that the fixing of salaries below certain levels, determinable from time to time
by the Compensation Committee, may in the discretion of the Committee be
delegated to the Chief Executive Officer, subject to the approval of the Board.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14. (1) The corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (an "Indemnitee") who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals (a "proceeding"), by reason of the fact that he, or a person for whom he
is the legal representative, is or was a director or officer of the corporation
or, while a director or officer of the corporation, is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Indemnitee. Notwithstanding the preceding sentence, except as
otherwise provided in paragraph (3) of this Section 14, the corporation shall be
required to indemnify an Indemnitee in connection with a proceeding (or part
thereof) commenced by such Indemnitee only if the commencement of such
proceeding (or part thereof) by the Indemnitee was authorized by the Board.
(2) The corporation shall pay the expenses (including attorneys' fees)
incurred by an Indemnitee in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Indemnitee to repay all
amounts advanced if it should be ultimately determined that the Indemnitee is
not entitled to be indemnified under this Section 14 or otherwise.
<PAGE>
(3) If a claim for indemnification or payment of expenses under this
Section 14 is not paid in full within thirty days after a written claim therefor
by the Indemnitee has been received by the corporation, the Indemnitee may file
suit to recover the unpaid amount of such claim and, if successful in whole or
in part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the corporation shall have the burden of proving that the
Indemnitee is not entitled to the requested indemnification or payment of
expenses under applicable law.
(4) The rights conferred on any Indemnitee by this Section 14 shall not be
exclusive of any other rights which such Indemnitee may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(5) The corporation's obligation, if any, to indemnify or to advance
expenses to any Indemnitee who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such
Indemnitee may collect as indemnification or advancement of expenses from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
enterprise.
(6) Any repeal or modification of the foregoing provisions of this Section
14 shall not adversely affect any right or protection hereunder of any
Indemnitee in respect of any act or omission occurring prior to the time of such
repeal or modification.
(7) This Section 14 shall not limit the right of the corporation, to the
extent and in the manner permitted by law, to indemnify and to advance expenses
to persons other than Indemnitees when and as authorized by appropriate
corporate action.
ARTICLE V
CAPITAL STOCK
CERTIFICATES OF STOCK
Section 1. Certificates of stock certifying the number of shares owned
shall be issued to each stockholder in such form not inconsistent with the
Restated Certificate of Incorporation as shall be approved by the Board. Such
certificates of stock shall be numbered and registered in the order in which
they are issued and shall be signed by the Chairman, the President or a Vice
President, and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Any and all the signatures on the certificates may be a
facsimile.
TRANSFER OF SHARES
Section 2. Transfers of shares shall be made only upon the books of the
corporation by the holder, in person, or by power of attorney duly executed and
filed with the Secretary of the corporation, and on the surrender of the
certificate or certificates of such shares, properly assigned. The corporation
may, if and whenever the Board shall so determine, maintain one or more offices
or agencies, each in charge of an agent designated by the Board, where the
shares of the capital stock of the corporation shall be transferred and/or
registered. The Board may also make such additional rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of the capital stock of the corporation.
<PAGE>
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 3. The corporation may issue a new certificate of capital stock of
the corporation in place of any certificate theretofore issued by the
corporation, alleged to have been lost, stolen or destroyed, and the corporation
may, but shall not be obligated to, require the owner of the alleged lost,
stolen or destroyed certificate, or his legal representatives, to give the
corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate, as the officers of the
corporation may, in their discretion, require.
FIXING OF RECORD DATE
Section 4. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board; and (3) in
the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed by the Board: (1) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting shall be determined in accordance with Article VI of
these By-Laws; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.
ARTICLE VI
CONSENTS TO CORPORATE ACTION
RECORD DATE
Section 1. The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall be as fixed by
the Board or as otherwise established under this Section. Any person seeking to
have the stockholders authorize or take corporate action by written consent
without a meeting shall by written notice addressed to the Secretary and
delivered to the corporation, request that a record date be fixed for such
purpose. The Board may fix a record date for such purpose which shall be no more
than 10 days after the date upon which the resolution fixing the record date is
adopted by the Board and shall not precede the date such resolution is adopted.
If the Board fails within 10 days after the corporation receives such notice to
fix a record date for such purpose, the record date shall be the day on which
the first written consent is delivered to the corporation in the manner
described in Section 2 below unless prior action by the Board is required under
the General Corporation Law of Delaware, in which event the record date shall be
at the close of business on the day on which the Board adopts the resolution
taking such prior action.
PROCEDURES
<PAGE>
Section 2. Every written consent purporting to take or authorizing the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Article VI as a "Consent") shall
bear the date of signature of each stockholder who signs the Consent, and no
Consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated Consent delivered in the manner
required by this Section 2, Consents signed by a sufficient number of
stockholders to take such action are delivered to the corporation.
A Consent shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery to the
corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested.
In the event of the delivery to the corporation of a Consent, the Secretary
of the corporation shall provide for the safe-keeping of such Consent and shall
promptly conduct such ministerial review of the sufficiency of the Consents and
of the validity of the action to be taken by shareholder consent as he deems
necessary or appropriate, including, without limitation, whether the holders of
a number of shares having the requisite voting power to authorize or take the
action specified in the Consent have given consent; provided, however, that if
the corporate action to which the Consent relates is the removal or replacement
of one or more members of the Board, the Secretary of the corporation shall
promptly designate two persons, who shall not be members of the Board, to serve
as Inspectors with respect to such Consent and such Inspectors shall discharge
the functions of the Secretary of the corporation under this Section 2. If after
such investigation the Secretary or the Inspectors (as the case may be) shall
determine that the Consent is valid and that the action therein specified has
been validly authorized, that fact shall forthwith be certified on the records
of the corporation kept for the purpose of recording the proceedings of meetings
of stockholders, and the Consent shall be filed in such records, at which time
the Consent shall become effective as stockholder action. In conducting the
investigation required by this Section 2, the Secretary or the Inspectors (as
the case may be) may, at the expense of the corporation, retain special legal
counsel and any other necessary or appropriate professional advisors, and such
other personnel as they may deem necessary or appropriate to assist them, and
shall be fully protected in relying in good faith upon the opinion of such
counsel or advisors.
ARTICLE VII
MISCELLANEOUS
DIVIDENDS AND RESERVES
Section 1. Dividends upon the capital stock of the corporation may be
declared as permitted by law by the Board or the Executive Committee at any
regular or special meeting. Before payment of any dividend or making any
distribution of profits, there may be set aside out of the surplus or net
profits of the corporation such sum or sums as the Board or the Executive
Committee, from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for such other purposes as the Board or
Executive Committee shall think conducive to the interests of the corporation,
and any reserve so established may be abolished and restored to the surplus
account by like action of the Board or the Executive Committee.
SEAL
Section 2. The seal of the corporation shall bear the corporate name of the
corporation, the year of its incorporation and the words "Corporate Seal,
Delaware".
WAIVER
<PAGE>
Section 3. Whenever any notice whatever is required to be given by statute
or under the provisions of the Restated Certificate of Incorporation or these
By-Laws, a waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of the stockholders or the Board, as the case
may be, need be specified in any waiver of notice of such meeting.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall begin with January
first and end with December thirty-first.
CONTRACTS
Section 5. Except as otherwise required by law, the Restated Certificate of
Incorporation or these By-Laws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the corporation by such
officer or officers of the corporation as the Board may from time to time
direct. Such authority may be general or confined to specific instances as the
Board may determine. The Chairman of the Board, the President or any Vice
President may execute bonds, contracts, deeds, leases and other instruments to
be made or executed for or on behalf of the corporation. Subject to any
restrictions imposed by the Board, the Chairman of the Board, the President or
any Vice President of the corporation may delegate contractual powers to others
under his jurisdiction, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the
exercise of such delegated power.
PROXIES
Section 6. Unless otherwise provided by resolution adopted by the Board,
the Chairman of the Board, the President or any Vice President may from time to
time appoint an attorney or attorneys or agent or agents of the corporation, in
the name and on behalf of the corporation, to cast the votes which the
corporation may be entitled to cast as the holder of stock or other securities
in any other corporation or other entity, any of whose stock or other securities
may be held by the corporation, at meetings of the holders of the stock or other
securities of such other corporation or other entity, or to consent in writing,
in the name of the corporation as such holder, to any action by such other
corporation or other entity, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he may deem necessary or proper in the premises.
AMENDMENTS
Section 7. The Board from time to time shall have the power to make, alter,
amend or repeal any and all of these By-Laws, but any By-Laws so made, altered
or repealed by the Board may be amended, altered or repealed by the
stockholders.
<PAGE>
CERTIFICATION
The undersigned hereby certifies that he is the duly elected and acting
Secretary of Newport News Shipbuilding Inc., a Delaware corporation, and the
keeper of its corporate records and minutes. The undersigned further hereby
certifies that the above and foregoing is a true and correct copy of the By-Laws
of said corporation, as in force at the date hereof.
WITNESS the hand of the undersigned and the seal of said corporation, this
12th day of October, 1998.
/s/ Stephen B. Clarkson
------------------------------
Secretary
Exhibit 4.8
NEWPORT NEWS SHIPBUILDING INC.
1998 STOCK INCENTIVE PLAN
<PAGE>
NEWPORT NEWS SHIPBUILDING, INC.
1998 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................1
1.01. ADMINISTRATOR....................................................1
1.02. AGREEMENT........................................................1
1.03. BOARD............................................................1
1.04. CODE.............................................................1
1.05. COMMITTEE........................................................1
1.06. COMMON STOCK.....................................................1
1.07. COMPANY..........................................................2
1.08. EXCHANGE ACT.....................................................2
1.09. FAIR MARKET VALUE................................................2
1.10. OPTION...........................................................2
1.11. PARTICIPANT......................................................2
1.12. PERFORMANCE SHARES...............................................2
1.13. PLAN.............................................................2
1.14. RELATED ENTITY...................................................2
1.15. STOCK AWARD......................................................3
ARTICLE II PURPOSES..........................................................4
ARTICLE III ADMINISTRATION...................................................5
ARTICLE IV ELIGIBILITY.......................................................6
4.01. GENERAL..........................................................6
4.02. GRANTS...........................................................6
ARTICLE V STOCK SUBJECT TO PLAN..............................................7
5.01. SHARES ISSUED....................................................7
5.02. AGGREGATE LIMIT..................................................7
5.03. REALLOCATION OF SHARES...........................................7
ARTICLE VI OPTIONS...........................................................8
6.01. AWARDS...........................................................8
6.02. OPTION PRICE.....................................................8
6.03. MAXIMUM OPTION PERIOD............................................8
6.04. NONTRANSFERABILITY...............................................8
6.05. TRANSFERABLE OPTIONS.............................................8
6.06. EXERCISE.........................................................9
6.07. PAYMENT..........................................................9
6.08. SHAREHOLDER RIGHTS...............................................9
6.09 STEELWORKERS' OPTIONS............................................9
ARTICLE VII STOCK AWARDS....................................................10
7.01. AWARDS..........................................................10
7.02. VESTING.........................................................10
7.03. SHAREHOLDER RIGHTS..............................................10
ARTICLE VIII PERFORMANCE SHARE AWARDS.......................................11
8.01. AWARD...........................................................11
8.02. EARNING THE AWARD...............................................11
8.03. PAYMENT.........................................................11
8.04. SHAREHOLDER RIGHTS..............................................11
ARTICLE IX ADJUSTMENT UPON CHANGE IN COMMON STOCK...........................12
ARTICLE X COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES.............13
ARTICLE XI GENERAL PROVISIONS...............................................14
11.01. EFFECT ON EMPLOYMENT...........................................14
11.02. UNFUNDED PLAN..................................................14
11.03. RULES OF CONSTRUCTION..........................................14
11.04. EMPLOYEE STATUS................................................14
11.05. WITHHOLDING TAXES..............................................14
ARTICLE XII AMENDMENT.......................................................16
ARTICLE XIII DURATION OF PLAN...............................................17
ARTICLE XIV EFFECTIVE DATE OF PLAN..........................................18
<PAGE>
NEWPORT NEWS SHIPBUILDING INC.
1998 STOCK INCENTIVE PLAN
ARTICLE I
DEFINITIONS
1.01. ADMINISTRATOR
Administrator means the Committee and any delegate of the Committee that
is appointed in accordance with Article III.
1.02. AGREEMENT
Agreement means a written agreement (including any amendment or supplement
thereto) between the Company and a Participant specifying the terms and
conditions of an award of Performance Shares or a Stock Award or Option granted
to such Participant.
1.03. BOARD
Board means the Board of Directors of the Company.
1.04. CODE
Code means the Internal Revenue Code of 1986, and any amendments thereto.
1.05. COMMITTEE
Committee means the Compensation and Benefits Committee of the Board.
1.06. COMMON STOCK
Common Stock means the common stock of the Company, $.01 par value per
share.
<PAGE>
1.07. COMPANY
Company means Newport News Shipbuilding Inc.
1.08. EXCHANGE ACT
Exchange Act means the Securities Exchange Act of 1934, as amended.
1.09. FAIR MARKET VALUE
Fair Market Value means, on any given date, the average of the highest and
lowest sales price of a share of Common Stock as reported on the New York Stock
Exchange composite tape on such date, or if the Common Stock was not traded on
the New York Stock Exchange on such day, then on the next preceding day that the
Common Stock was traded on such exchange, all as reported by such source as the
Administrator may select.
1.10. OPTION
Option means a stock option that entitles the holder to purchase from the
Company a stated number of shares of Common Stock at the price set forth in an
Agreement.
1.11. PARTICIPANT
Participant means an employee of the Company or a Related Entity,
including an employee who is a member of the Board, who satisfies the
requirements of Article IV and is selected by the Administrator to receive an
award of Performance Shares, a Stock Award, an Option or a combination thereof.
1.12. PERFORMANCE SHARES
Performance Shares means an award which, in accordance with and subject to
an Agreement, will entitle the Participant to receive cash or a Stock Award or a
combination thereof.
1.13. PLAN
Plan means this Newport News Shipbuilding Inc. 1998 Stock
Incentive Plan.
1.14. RELATED ENTITY
Related Entity means any "subsidiary" or "parent" corporation (within the
meaning of Section 424 of the Code) of the Company.
1.15. STOCK AWARD
Stock Award means Common Stock awarded to a Participant under Article VII
or in settlement of an award of Performance Shares.
<PAGE>
ARTICLE II
PURPOSES
The Plan is intended to assist the Company and Related Entities in
recruiting and retaining key employees by enabling such employees to participate
in the future success of the Company and the Related Entities and to associate
their interests with those of the Company and its shareholders. The Plan is
intended to permit the award of Performance Shares, the grant of Stock Awards
and the grant of Options. The proceeds received by the Company from the sale of
Common Stock pursuant to this Plan shall be used for general corporate purposes.
<PAGE>
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Administrator. The Administrator
shall have authority to award Performance Shares and to grant Stock Awards, and
Options upon such terms (not inconsistent with the provisions of this Plan) as
the Administrator may consider appropriate. Such terms may include conditions
(in addition to those contained in this Plan) on the exercisability of all or
any part of an Option or on the transferability or forfeitability of a Stock
Award or Performance Shares, including by way of example and not limitation,
conditions on which the Participant may defer receipt of benefits under the
Plan, requirements that the Participant complete a specified period of
employment with the Company or a Related Entity or that the Company achieve a
specified level of financial performance. Notwithstanding any such conditions,
the Committee may, in its discretion, accelerate the time at which any Option
may be exercised, or the time at which a Stock Award may become transferable or
nonforfeitable or the time at which an award of Performance Shares may be
settled. In addition, the Administrator shall have complete authority to
interpret all provisions of this Plan; to prescribe the form of Agreements; to
adopt, amend, and rescind rules and regulations pertaining to the administration
of the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of any specific power
to the Administrator shall not be construed as limiting any power or authority
of the Administrator. Any decision made, or action taken, by the Administrator
in connection with the administration of this Plan shall be final and
conclusive. Neither the Administrator nor any member of the Committee shall be
liable for any act done in good faith with respect to this Plan or any
Agreement, Option, Stock Award or award of Performance Shares. All expenses of
administering this Plan shall be borne by the Company.
The Committee, in its discretion, may delegate to one or more officers of
the Company all or part of the Committee's authority and duties with respect to
grants and awards to individuals who are not subject to the reporting and other
provisions of Section 16 of the Exchange Act. The Committee may revoke or amend
the terms of a delegation at any time but such action shall not invalidate any
prior actions of the Committee's delegate or delegates that were consistent with
the terms of the Plan.
<PAGE>
ARTICLE IV
ELIGIBILITY
4.01. GENERAL.
The Administrator, in its sole discretion may select any employee of the
Company or a Related Entity (including a corporation that becomes a Related
Entity after the adoption of this Plan) to participate in this Plan. Directors
of the Company who are employees of the Company or a Related Entity may be
selected to participate in this Plan.
4.02. GRANTS.
The Administrator will designate individuals to whom an award of
Performance Shares are to be granted and to whom Stock Awards and Options are to
be granted and will specify the number of shares of Common Stock subject to each
award or grant. Each award of Performance Shares and all Stock Awards and
Options granted under this Plan shall be evidenced by Agreements which shall be
subject to the applicable provisions of this Plan and to such other provisions
as the Administrator may adopt.
<PAGE>
ARTICLE V
STOCK SUBJECT TO PLAN
5.01. SHARES ISSUED.
Upon the award of shares of Common Stock pursuant to a Stock Award the
Company may issue shares of Common Stock from its authorized but unissued Common
Stock or from its treasury Common Stock. Upon the exercise of any Option, the
Company may deliver to the Participant (or the Participant's broker if the
Participant so directs), shares of Common Stock from its authorized but unissued
Common Stock or from its treasury Common Stock.
5.02. AGGREGATE LIMIT.
The maximum aggregate number of shares of Common Stock that may be issued
under this Plan with respect to Options, Stock Awards and Performance Shares, is
___________ shares; provided, however, that the number of shares of Common Stock
issued under the Plan to any officer or member of the Board cannot exceed one
percent of the number of shares of Common Stock outstanding on ________________
___, 1998. The maximum aggregate number of shares of Common Stock that may be
issued under this Plan shall be subject to adjustment as provided in Article IX.
5.03. REALLOCATION OF SHARES.
To the extent that an Option is terminated, in whole or in part, for any
reason other than its exercise, the number of shares of Common Stock allocated
to the Option or portion thereof may be reallocated to other Options, Stock
Awards and awards of Performance Shares to be granted under this Plan. To the
extent that an award of Performance Shares is forfeited, earned or terminated,
in whole or in part, without the issuance of a Stock Award, the number of shares
of Common Stock allocated to the Performance Share Award or portion thereof may
be reallocated to other Options, Stock Awards and awards of Performance Shares
to be granted under this Plan. To the extent that a Stock Award is forfeited, in
whole or in part, the number of shares of Common Stock allocated to the Stock
Award may be reallocated to other Options, Stock Awards and awards of
Performance Shares to be granted under this Plan.
<PAGE>
ARTICLE VI
OPTIONS
6.01. AWARDS.
In accordance with Article IV, the Administrator will designate each
individual to whom an Option is to be granted and will specify the number of
shares of Common Stock covered by such awards.
6.02. OPTION PRICE.
The price per share for Common Stock purchased on the exercise of an
Option shall be determined by the Administrator on the date of grant; provided,
however, that the price per share for Common Stock purchased on the exercise of
any Option shall not be less than the Fair Market Value on the date the Option
is granted.
6.03. MAXIMUM OPTION PERIOD.
The maximum period in which an Option may be exercised shall be determined
by the Administrator on the date of grant, except that no Option shall be
exercisable after the expiration of ten years from the date such Option was
granted. The terms of any Option may provide that it is exercisable for a period
less than such maximum period.
6.04. NONTRANSFERABILITY.
Any Option granted under this Plan shall be nontransferable except by will
or by the laws of descent and distribution. During the lifetime of the
Participant to whom the Option is granted, the Option may be exercised only by
the Participant. No right or interest of a Participant in any Option shall be
liable for, or subject to, any lien, obligation, or liability of such
Participant.
6.05. TRANSFERABLE OPTIONS.
Section 6.04 to the contrary notwithstanding, if the Agreement provides,
an Option may be transferred by a Participant to the Participant's children,
grandchildren, spouse, one or more trusts for the benefit of such family members
or a partnership in which such family members are the only partners, on such
terms and conditions as may be permitted under Securities Exchange Commission
Rule 16b-3 as in effect from time to time. The holder of an Option transferred
pursuant to this section shall be bound by the same terms and conditions that
governed the Option during the period that it was held by the Participant;
provided, however, that such transferee may not transfer the Option except by
will or the laws of descent and distribution.
<PAGE>
6.06. EXERCISE.
Subject to the provisions of this Plan, an Option may be exercised in
whole at any time or in part from time to time at such times and in compliance
with such requirements as the Administrator shall determine. An Option granted
under this Plan may be exercised with respect to any number of whole shares less
than the full number for which the Option could be exercised. A partial exercise
of an Option shall not affect the right to exercise the Option from time to time
in accordance with this Plan and the applicable Agreement with respect to the
remaining shares subject to the Option.
6.07. PAYMENT.
Unless otherwise provided by the Agreement, payment of the Option price
shall be made in cash or a cash equivalent acceptable to the Administrator.
Subject to rules established by the Committee, payment of all or part of the
Option price may be made by surrendering shares of Common Stock to the Company.
If Common Stock is used to pay all or part of the Option price, the sum of the
cash and cash equivalent and the Fair Market Value of the surrendered shares (on
the day preceding the exercise date) must not be less than the Option price of
the shares for which the Option is being exercised.
6.08. SHAREHOLDER RIGHTS.
No Participant shall have any rights as a stockholder with respect to
shares subject to his or her Option until the date of exercise of such Option or
SAR.
6.09 STEELWORKERS' OPTIONS.
In 1997 the Company granted Options pursuant to the Newport News
Shipbuilding, Inc. Hourly Employee Stock Option Plan for Employees Covered by
United Steelworkers of America, Local 8888 Collective Bargaining Agreement (the
"Steelworkers' Plan"). The obligation of the Steelworkers' Plan to issue Common
Stock upon the exercise of Options granted thereunder has been transferred to,
and assumed by, this Plan. Such Options shall continue to be exercisable subject
to the same terms and conditions as prescribed by the Steelworkers' Plan.
<PAGE>
ARTICLE VII
STOCK AWARDS
7.01. AWARDS.
In accordance with the provisions of Article IV, the Administrator will
designate each individual to whom a Stock Award is to be made and will specify
the number of shares of Common Stock covered by such awards.
7.02. VESTING.
The Administrator, on the date of the award, may prescribe that a
Participant's rights in the Stock Award shall be forfeitable and nontransferable
(other than by will or the laws of descent and distribution if the Agreement so
permits) for a period of time or subject to such conditions as may be set forth
in the Agreement. By way of example and not of limitation, the restrictions may
postpone transferability, vesting or both of the shares until the attainment of
performance objectives prescribed by Committee or may provide that the shares
will be forfeited if the Participant separates from the service of the Company
and its Related Entities before the expiration of a stated term.
7.03. SHAREHOLDER RIGHTS.
Prior to their forfeiture (in accordance with the terms of the Agreement
and while the shares of Common Stock granted pursuant to the Stock Award may be
forfeited), a Participant will have all rights of a shareholder with respect to
a Stock Award, including the right to receive dividends and vote the shares;
provided, however, that (i) a Participant may not sell, transfer, pledge,
exchange, hypothecate, or otherwise dispose of shares of Common Stock granted
pursuant to a Stock Award (other than by will or the laws of descent and
distribution if the Agreement so permits), (ii) the Company shall retain custody
of the certificates evidencing shares of Common Stock granted pursuant to a
Stock Award, and (iii) the Participant will deliver to the Company a stock
power, endorsed in blank, with respect to each Stock Award. The limitations set
forth in the preceding sentence shall not apply after the shares of Common Stock
granted under the Stock Award are no longer forfeitable and are transferable.
<PAGE>
ARTICLE VIII
PERFORMANCE SHARE AWARDS
8.01. AWARD.
In accordance with the provisions of Article IV, the Administrator will
designate individuals to whom an award of Performance Shares is to be granted
and will specify the number of shares of Common Stock covered by the award.
8.02. EARNING THE AWARD
The Administrator, on the date of the grant of an award, shall prescribe
that the Performance Shares, or portion thereof, will be earned, and the
Participant will be entitled to receive Common Stock pursuant to a Stock Award,
a cash payment or a combination thereof, only upon the satisfaction of certain
requirements. By way of example and not of limitation, the restrictions may
provide that Performance Shares shall be earned only upon the Participant's
completion of a specified period of employment with the Company or Related
Entity or upon the attainment of stated performance objectives or goals.
8.03. PAYMENT.
In the discretion of the Administrator, the amount payable when an award
of Performance Shares is earned may be settled in cash, by the grant of a Stock
Award or a combination of cash and a Stock Award. A fractional share shall not
be deliverable when an award of Performance Shares is earned, but a cash payment
will be made in lieu thereof.
8.04. SHAREHOLDER RIGHTS.
No Participant shall, as a result of receiving an award of Performance
Shares, have any rights as a shareholder until and to the extent that the award
of Performance Shares is earned and a Stock Award is made. If the Agreement so
provides, a Participant may receive a cash payment equal to the dividends that
are payable with respect to the number of shares of Common Stock covered by the
award between the date the Performance Shares are awarded and the date a Stock
Award is made. A Participant may not sell, transfer, pledge, exchange,
hypothecate, or otherwise dispose of a Performance Share award or the right to
receive Common Stock thereunder (other than by will or the laws of descent and
distribution if the Agreement so permits). After an award of Performance Shares
is earned and a Stock Award is made, a Participant will have all the rights of a
shareholder as described in Plan section 7.04.
<PAGE>
ARTICLE IX
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options, Stock Awards and awards of
Performance Shares may be granted under this Plan and the terms of outstanding
awards of Performance Shares, Stock Awards and Options shall be adjusted as the
Committee shall determine to be equitably required in the event that (a) the
Company (i) effects one or more stock dividends, stock split-ups, subdivisions
or consolidations of shares or (ii) engages in a transaction to which Section
424 of the Code applies, (b) there occurs a "Distribution Date" and the "Rights"
become exercisable under the Company's Rights Agreement dated as of December 11,
1996, with First Chicago Trust Company of New York, as Rights Agent, as amended,
and any similar occurrence under any substitute, replacement or successor to
such Rights Agreement or (c) there occurs any other event which, in the judgment
of the Committee is equitably required. Any determination made under this
Article IX by the Committee shall be final and conclusive.
The issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash or property, or for
labor or services, either upon direct sale or 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, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the maximum
number of shares as to which Options, Stock Awards and awards of Performance
Shares may be granted or the terms of outstanding awards of Performance Shares,
Stock Awards and Options.
The Committee may make Stock Awards and may grant awards of Performance
Shares and Options in substitution for performance shares, phantom shares, stock
awards, stock options, stock appreciation rights, or similar awards held by an
individual who becomes an employee of the Company or a Related Entity in
connection with a transaction described in the first paragraph of this Article
IX. Notwithstanding any provision of the Plan (other than the limitations of
Article V), the terms of such substituted awards of Performance Shares, Stock
Awards or Option grants shall be as the Committee, in its discretion, determines
is appropriate.
<PAGE>
ARTICLE X
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock shall be issued, no
certificates for shares of Common Stock shall be delivered, and no payment shall
be made under this Plan except in compliance with all applicable federal and
state laws and regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a party, and the
rules of all domestic stock exchanges on which the Company's shares may be
listed. The Company shall have the right to rely on an opinion of its counsel as
to such compliance. Any share certificate issued to evidence Common Stock when a
Stock Award is granted or for which an Option is exercised may bear such legends
and statements as the Administrator may deem advisable to assure compliance with
federal and state laws and regulations. No Option shall be exercisable, no Stock
Award shall be granted, no Common Stock shall be issued, no certificate for
shares shall be delivered, and no payment shall be made under this Plan until
the Company has obtained such consent or approval as the Administrator may deem
advisable from regulatory bodies having jurisdiction over such matters.
<PAGE>
ARTICLE XI
GENERAL PROVISIONS
11.01 EFFECT ON EMPLOYMENT.
Neither the adoption of this Plan, its operation, nor any documents
describing or referring to this Plan (or any part thereof) shall confer upon any
individual any right to continue in the employ of the Company or a Related
Entity or in any way affect any right and power of the Company or a Related
Entity to terminate the employment of any individual at any time with or without
assigning a reason therefor.
11.02 UNFUNDED PLAN.
The Plan, insofar as it provides for grants, shall be unfunded, and the
Company shall not be required to segregate any assets that may at any time be
represented by grants under this Plan. Any liability of the Company to any
person with respect to any grant under this Plan shall be based solely upon any
contractual obligations that may be created pursuant to this Plan. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
11.03 RULES OF CONSTRUCTION.
Headings are given to the articles and sections of this Plan solely as a
convenience to facilitate reference. The reference to any statute, regulation,
or other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.
11.04 EMPLOYEE STATUS.
In the event that the terms of any award of Performance Shares, or Stock
Award or the grant of any Option provide that shares may be issued or become
transferable and nonforfeitable thereunder only after completion of a specified
period of employment, the Administrator may decide in each case to what extent
leaves of absence for governmental or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of continuous
employment.
11.05 WITHHOLDING TAXES.
Each Participant shall be responsible for satisfying any income and
employment tax withholding obligations attributable to participation in the
Plan. Unless otherwise provided by the Agreement, any such withholding tax
obligations may be satisfied in cash (including from any cash payable in
settlement of an award of Performance Shares) or a cash equivalent acceptable to
the Committee. If permitted by the Agreement, any withholding tax obligations
may also be satisfied by surrendering shares of Common Stock to the Company, by
withholding or reducing the number of shares of Common Stock otherwise issuable
to the Participant upon the exercise of an Option, the settlement of an award of
Performance Shares or the grant or vesting of a Stock Award. Any withholding tax
obligations may also be satisfied by any other method as may be approved by the
Committee. If shares of Common Stock are used to pay all or part of such
withholding tax obligation, the Fair Market Value of the shares surrendered,
withheld or reduced shall be determined as of the day preceding the date the
Option is exercised, the Stock Award vests or the Performance Shares are earned,
as applicable.
<PAGE>
ARTICLE XII
AMENDMENT
The Committee may amend or terminate this Plan from time to time. No
amendment shall, without a Participant's consent, adversely affect any rights of
such Participant under any outstanding award of Performance Shares, or under any
Stock Award or Option outstanding at the time such amendment is made.
<PAGE>
ARTICLE XIII
DURATION OF PLAN
No Performance Shares may be awarded and no Stock Award or Option may be
granted under this Plan more than [ten] years after the date that the Plan is
adopted by the Board. Performance Shares awarded, and Stock Awards and Options
granted before that date shall remain valid in accordance with their terms.
<PAGE>
ARTICLE XIV
EFFECTIVE DATE OF PLAN
Performance Shares may be awarded and Options and Stock Awards may be
granted under this Plan upon its adoption by the Board.
[NEWPORT NEWS SHIPBUILDING LOGO] 4101 Washington Avenue
Newport News, Virginia 23607-2770
Phone: 757-380-2000
http://www.nns.com
October 16, 1998
Newport News Shipbuilding Inc.
4101 Washington Avenue
Newport News, VA 23607
Re: Newport News Shipbuilding Inc. 1998 Stock Incentive Plan (the "Plan")
Ladies and Gentlemen:
As Vice President and General Counsel of Newport News Shipbuilding Inc.
(the "Company"), I have acted as counsel to the Company in connection with the
Registration Statement on Form S-8 (the "Registration Statement") being filed
under the Securities Act of 1933, as amended (the "Act") on or about the date of
this letter to register shares of common stock, par value $.01 per share
(including associated rights) (the "Shares"), of the Company which may from time
to time be offered and sold by the Company in connection with the Plan.
I am familiar with the Registration Statement and the Exhibits thereto. I,
or attorneys under my supervision, have also examined originals or copies,
certified or otherwise, of such other documents, evidence of corporate action
and instruments, as I have deemed necessary or advisable for the purpose of
rendering this opinion. As to questions of fact relevant to this opinion, I have
relied upon certificates or written statements from officers and other
appropriate representatives of the Company and its subsidiaries or public
officials. In all such examinations I have assumed the genuineness of all
signatures, the authority to sign and the authenticity of all documents
submitted to me as originals. I have also assumed the conformity to the
originals of all documents submitted to me as copies.
Based upon and subject to the foregoing, I am of the opinion that the
Shares that will be originally issued under the Plan have been duly authorized
and, when issued pursuant to and in accordance with the Plans, will be legally
issued, fully paid and non-assessable.
I hereby consent to the use of my name in the Registration Statement and to
the filing, as an exhibit to the Registration Statement, of this opinion. In
giving this consent, I do not hereby admit that I am in the category of persons
whose consent is required under Section 7 of the Act, or the rules and
regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Stephen B. Clarkson
------------------------
Stephen B. Clarkson
Vice President, General Counsel
and Secretary
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 31,1998,
included in Newport News Shipbuilding Inc.'s Form 10-K for the year ended
December 31, 1997.
We also consent to all references to our Firm in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C. ARTHUR ANDERSEN LLP
October 19, 1998
