<PAGE> 1
As filed with the Securities and Exchange Commission on October 22, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
CONOCO INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0370352
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 NORTH DAIRY ASHFORD 77079
HOUSTON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
---------------------------
CONOCO INC.
DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
---------------------------
R.A. HARRINGTON
SENIOR VICE PRESIDENT, LEGAL, AND GENERAL COUNSEL
CONOCO INC.
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
(Name and address of agent for service)
(281) 293-1000
(Telephone number, including area code, of agent for service)
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
PROPOSED PROPOSED MAXIMUM
AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (2) PRICE (2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par value $.01 per share(1).... 100,000 $23.00 $2,300,000 $640
===================================================================================================================================
</TABLE>
(1) Includes the associated rights to purchase preferred stock, which
initially are attached to and trade with the shares of Class A Common
Stock being registered hereby.
(2) Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
computing the registration fee and based upon the initial public
offering price per share of Class A Common Stock as set forth in the
prospectus of Conoco Inc. relating thereto dated October 21, 1998 as
filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the Securities Act.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information concerning the Conoco
Inc. Deferred Compensation Plan for Non-Employee Directors (the "Plan") required
by Item 1 of Form S-8 and the statement of availability of registrant
information, Plan information and other information required by Item 2 of Form
S-8 will be sent or given to employees as specified by Rule 428 under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. The registrant will
maintain a file of such documents in accordance with the provisions of Rule 428.
Upon request, the registrant will furnish to the Commission or its staff a copy
of any or all of the documents included in such file.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which Conoco Inc., a Delaware corporation (the
"Company"), has filed with the Commission pursuant to the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
001-14521), are incorporated in this Registration Statement by reference and
shall be deemed to be a part hereof:
(1) The Company's prospectus dated October 21, 1998 as filed
with the Commission pursuant to Rule 424(b) under the Securities Act;
and
(2) The description of the Company's Class A Common Stock, par
value $.01 per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A filed on September 28, 1998, as
thereafter amended from time to time for the purpose of updating,
changing or modifying such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated in this Registration
Statement by reference and to be a part hereof from the date of filing of such
documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document 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 subsequently filed amendment or
supplement to this Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such statement. Any
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute required court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, By-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
<PAGE> 4
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personably liable to the corporation 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
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article 5E(2) of the Registrant's Certificate of Incorporation provides
that no director shall be personally liable to the Company or any of 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)
pursuant to section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of such Article 5E(2) shall not adversely affect any
right or protection of a director of the Registrant for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
The Company's By-laws provide for indemnification of directors and officers to
the maximum extent permitted by Delaware law.
The Company has entered into indemnification agreements with each of
its directors (collectively, "Indemnitees"). Such agreements provide that, to
the fullest extent permitted by applicable law, the Company shall indemnify and
hold each Indemnitee harmless from and against any and all losses and expenses
whatsoever (i) arising out of any event or occurrence related to the fact that
such Indemnitee is or was a director or officer of the Company, is or was
serving in another capacity with the Company, consented to be named as a person
to be elected as a director of the Company in connection with the Company's
initial public offering of the Common Stock, or by reason of anything done or
not done by such Indemnitee in such capacity and (ii) incurred in connection
with any threatened, pending or completed legal proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Document Description
4.1 -- Second Amended and Restated Certificate of Incorporation
of the Company (incorporated by reference to Exhibit 4.1 of
the Registration Statement of the Company on Form S-8
relating to the Conoco Inc. 1998 Stock and Performance
Incentive Plan, as filed with the Commission on October 22,
1998).
4.2 -- Bylaws of the Company, as amended (incorporated by
reference to Exhibit 4.2 of the Registration Statement of
the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
4.3 -- Form of certificate representing Class A Common Stock
(incorporated by reference to Exhibit 4.3 of the
Registration Statement of the Company on Form S-8 relating
to the Conoco Inc. 1998 Stock and Performance Incentive
Plan, as filed with the Commission on October 22, 1998).
4.4 -- Rights Agreement dated as of October 19, 1998 between the
Company and First Chicago Trust Company of New York, as
Rights Agent, which includes as Exhibit A the form of
Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock, as Exhibit B
the form of Class A Rights Certificate and as Exhibit D the
Summary of Rights to Purchase Preferred Stock (incorporated
by reference to Exhibit 4.4 of the Registration Statement
of the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
<PAGE> 5
4.5 -- Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock (incorporated
by reference to Exhibit 4.5 of the Registration Statement
of the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
4.6 -- Amendment to Rights Agreement dated as of October 20, 1998
between the Company and First Chicago Trust Company of New
York, as Rights Agent (incorporated by reference to Exhibit
4.6 of the Registration Statement of the Company on Form
S-8 relating to the Conoco Inc. 1998 Stock and Performance
Incentive Plan, as filed with the Commission on October 22,
1998).
*4.7 -- Conoco Inc. Deferred Compensation Plan for Non-Employee
Directors.
*5.1 -- Opinion of Baker & Botts, L.L.P. as to the legality of
securities.
*15.1 -- Awareness Letter of PricewaterhouseCoopers LLP.
*23.1 -- Consent of PricewaterhouseCoopers LLP.
*23.2 -- Consent of Baker & Botts, L.L.P. (contained in Exhibit
5.1).
*24.1 -- Powers of Attorney (included on the signature page of
the Registration Statement).
- -----------------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b)
of the Securities Act of 1933 if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be
<PAGE> 6
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on October 22, 1998.
CONOCO INC.
By: /s/ Archie W. Dunham
----------------------------------------
Archie W. Dunham
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Archie W. Dunham,
Robert W. Goldman, Rick A. Harrington and Gary M. Pfeiffer, and each of them,
severally, as his true and lawful attorney or attorneys-in-fact and agent or
agents, each of whom shall be authorized to act with or without the other, with
full power of substitution and resubstitution, for him and in his name, place
and stead in his capacity as a director or officer or both, as the case may be,
of Conoco Inc., a Delaware corporation (the "Company"), to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and all documents or instruments necessary or appropriate to enable the Company
to comply with the Securities Act of 1933, and to file the same with the
Securities and Exchange Commission, with full power and authority to each of
said attorneys-in-fact and agents to do and perform in the name and on behalf of
each such director or officer, or both, as the case may be, each and every act
whatsoever that is necessary, appropriate or advisable in connection with any or
all of the above-described matters and to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON OCTOBER 22, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Archie W. Dunham President, Chief Executive Officer and Director
- ----------------------------
Archie W. Dunham
/s/ Robert W. Goldman Senior Vice President, Finance, and Chief
- ---------------------------- Financial Officer (Principal Financial Officer
Robert W. Goldman and Principal Accounting Officer)
/s/ Edgar S. Woolard, Jr. Chairman of the Board and Director
- -----------------------------
Edgar S. Woolard, Jr.
/s/ Gary M. Pfeiffer Director
- ------------------------------
Gary M. Pfeiffer
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
4.1 -- Second Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 4.1 of the
Registration Statement of the Company on Form S-8 relating
to the Conoco Inc. 1998 Stock and Performance Incentive
Plan, as filed with the Commission on October 22, 1998).
4.2 -- Bylaws of the Company, as amended (incorporated by
reference to Exhibit 4.2 of the Registration Statement of
the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
4.3 -- Form of certificate representing Class A Common Stock
(incorporated by reference to Exhibit 4.3 of the
Registration Statement of the Company on Form S-8 relating
to the Conoco Inc. 1998 Stock and Performance Incentive
Plan, as filed with the Commission on October 22, 1998).
4.4 -- Rights Agreement dated as of October 19, 1998 between the
Company and First Chicago Trust Company of New York, as
Rights Agent, which includes as Exhibit A the form of
Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock, as Exhibit B
the form of Class A Rights Certificate and as Exhibit D the
Summary of Rights to Purchase Preferred Stock (incorporated
by reference to Exhibit 4.4 of the Registration Statement
of the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
4.5 -- Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock (incorporated
by reference to Exhibit 4.5 of the Registration Statement
of the Company on Form S-8 relating to the Conoco Inc. 1998
Stock and Performance Incentive Plan, as filed with the
Commission on October 22, 1998).
4.6 -- Amendment to Rights Agreement dated as of October 20, 1998
between the Company and First Chicago Trust Company of New
York, as Rights Agent (incorporated by reference to Exhibit
4.6 of the Registration Statement of the Company on Form
S-8 relating to the Conoco Inc. 1998 Stock and Performance
Incentive Plan, as filed with the Commission on October 22,
1998).
*4.7 -- Conoco Inc. Deferred Compensation Plan for Non-Employee
Directors.
*5.1 -- Opinion of Baker & Botts, L.L.P. as to the legality of
securities.
*15.1 -- Awareness Letter of PricewaterhouseCoopers LLP.
*23.1 -- Consent of PricewaterhouseCoopers LLP.
*23.2 -- Consent of Baker & Botts, L.L.P. (contained in Exhibit
5.1).
*24.1 -- Powers of Attorney (included on the signature page of
the Registration Statement).
</TABLE>
- -------------------------------
* Filed herewith.
<PAGE> 1
EXHIBIT 4.7
CONOCO INC.
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
ARTICLE I
PURPOSES OF PLAN AND DEFINITIONS
1.1 Purpose. Conoco Inc., a Delaware corporation, hereby
establishes the Conoco Inc. Deferred Compensation Plan for Non-Employee
Directors (the "Plan") for the purpose of providing non-employee directors of
the Company the opportunity to defer a portion of their compensation and to
provide greater incentives for those Directors to attain and maintain the
highest standards of performance, to attract and retain Directors of outstanding
competence and ability, to stimulate the active interest of such persons in the
development and financial success of the Company, to further the identity of
interests of such Directors with those of the Company's stockholders generally,
and to reward such Directors for outstanding performance.
1.2 Definitions.
"Applicable Annual Rate" will initially be 7.14% and
will be adjusted as of January 1 of each year to that rate which is
equal to 120% of the applicable federal long-term rate for the month of
January of such year as published by the Internal Revenue Service
pursuant to Section 1274(d) of the Code.
"Award" means any incentive award made to a
Participant under the Plan or any other Plan of the Company.
"Beneficiary" means the person(s) or entity(ies)
designated by the Participant, as provided in Section 4.5, to receive
any payments otherwise due the Participant under this Plan in the event
of the Participant's death.
"Board of Directors" or "Board" means the Board of
Directors of the Company.
"Cash Compensation" means all of the cash
compensation payable to a Participant, including annual, meeting and
other fees.
"Change in Control" means a Change in Control as
defined in the Conoco Inc. Key Employee Severance Plan, as amended from
time to time.
<PAGE> 2
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means such committee of the Board as is
designated by the Board to administer the Plan in accordance with
Article II, but (i) prior to the IPO shall be the Board or such other
persons as are authorized by the Board and (ii) after the IPO shall
initially be the Compensation Committee of the Board.
"Common Stock" means the Class A Common Stock, par
value $.01 per share, of the Company.
"Company" means Conoco Inc.
"Deferred Compensation Period" means such period of
365 days (or such longer or shorter period) as shall from time to time
be prescribed by the Committee for which Participants shall be entitled
to defer receipt of all or any part of their Cash Compensation.
"Deferred Interest Bearing Account" means the
bookkeeping account maintained for each Participant to record certain
amounts deferred by the Participant in accordance with Article III
hereof.
"Determination Date" means the date on which payment
of a Participant's deferred compensation is made or commences, as
determined in accordance with Section 4.1.
"Director" means an individual who is serving as a
member of the Board.
"Effective Date" means the IPO Closing Date.
"Election Effective Date" means the date upon which a
Participant's deferred compensation is credited to his Deferred
Interest Bearing Account pursuant to Section 3.3 of this Plan.
"Eligible Director" means each Director who is not an
employee of E.I. duPont de Nemours and Company or of any of its
subsidiaries, or of the Company or of any of the Company's
subsidiaries.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
-2-
<PAGE> 3
"Fair Market Value" of a share of Common Stock means,
as of a particular date, (i) if shares of Common Stock are listed on a
national securities exchange, the mean between the highest and lowest
sales price per share of Common Stock on the consolidated transaction
reporting system for the principal national securities exchange on
which shares of Common Stock are listed on that date, or, if there
shall have been no such sale so reported on that date, on the next
succeeding date on which such a sale was so reported, (ii) if shares of
Common Stock are not so listed but are quoted on the Nasdaq National
Market, the mean between the highest and lowest sales price per share
of Common Stock reported by the Nasdaq National Market on that date,
or, if there shall have been no such sale so reported on that date, on
the next succeeding date on which such a sale was so reported, (iii) if
the Common Stock is not so listed or quoted, the mean between the
closing bid and asked price on that date, or, if there are no
quotations available for such date, on the next succeeding date on
which such quotations shall be available, as reported by the Nasdaq
Stock Market, or, if not reported by the Nasdaq Stock Market, by the
National Quotation Bureau Incorporated or (iv) if shares of Common
Stock are not publicly traded, the most recent value determined by an
independent appraiser appointed by the Company for such purpose;
provided that, notwithstanding the foregoing, "Fair Market Value" in
the case of any Award made in connection with the IPO, means the price
per share to the public of the Common Stock in the IPO, as set forth in
the final prospectus relating to the IPO. "Fair Market Value" of a
Stock Unit means, as of a particular date, the Fair Market Value of a
share of Common Stock on such date.
"IPO" means the first time a registration statement
filed under the Securities Act of 1933 and respecting an underwritten
primary offering by the Company of shares of common stock of the
Company is declared effective under that Act and the shares registered
by that registration statement are issued and sold by the Company
(otherwise than pursuant to the exercise of any overallotment option).
"IPO Closing Date" means the date on which the
Company first receives payment for the shares of common stock of the
Company it sells in the IPO.
"Participant" means an Eligible Director who elects
to participate in the Plan or is otherwise credited with Stock Units
pursuant to Article III.
"Stock Account" means the bookkeeping account
maintained for each Participant to record certain amounts deferred by
the Participant in accordance with Article III hereof.
"Stock Unit" means a unit equal to one share of
Common Stock (as adjusted pursuant to Section 3.6), utilized for the
purpose of measuring the benefits payable under Section 4.3.
-3-
<PAGE> 4
"Total Deferred Unit Amount" means the aggregate Fair
Market Value on the Valuation Date coinciding with or immediately
preceding the Determination Date of the number of Stock Units then
credited to a Participant's Stock Account.
"Valuation Date" means the Effective Date and the
first day of each month thereafter or, in the event the Common Stock is
traded or quoted on a national securities exchange or in the
over-the-counter market, each day on which a sale or sales of the
Common Stock is reported or a quotation for the Common Stock is
available (as the case may be).
"1998 Incentive Plan" means the 1998 Stock and
Performance Incentive Plan of Conoco Inc.
ARTICLE II
ADMINISTRATION OF THE PLAN
2.1 Committee. This Plan shall be administered by the
Committee. The Committee shall consist of at least two members of the Board.
2.2 Committee's Powers. Subject to the provisions hereof, the
Committee shall have full and exclusive power and authority to administer this
Plan and to take all actions which are specifically contemplated hereby or are
necessary or appropriate in connection with the administration hereof. The
Committee shall also have full and exclusive power to interpret this Plan and to
adopt such rules, regulations and guidelines for carrying out this Plan as it
may deem necessary or proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the objectives of this Plan. The
Committee may, in its discretion, determine the eligibility of individuals to
participate herein, determine the amount of Cash Compensation a Participant may
elect to defer, or waive any restriction or other provision of this Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in this Plan in the manner and to the extent the Committee deems
necessary or desirable to carry it into effect.
2.3 Committee Determinations Conclusive. Any decision of the
Committee in the interpretation and administration of this Plan shall lie within
its sole and absolute discretion and shall be final, conclusive and binding on
all parties concerned.
2.4 Committee Liability. No member of the Committee or officer
of the Company to whom the Committee has delegated authority in accordance with
the provisions of Section 2.5 of this Plan shall be liable for anything done or
omitted to be done by him or her, by any member of the Committee or by an
officer of the Company in connection with
-4-
<PAGE> 5
the performance of any duties under this Plan, except for his or her own willful
misconduct or as expressly provided by statute.
2.5 Delegation of Authority. The Committee may delegate to the
Chief Executive Officer and to other senior officers of the Company its duties
under this Plan pursuant to such conditions or limitations as the Committee may
establish.
ARTICLE III
ACCOUNTS
3.1 Establishment of Accounts. The Company shall set up an
appropriate record (hereinafter called the "Deferred Interest Bearing Account")
which will from time to time reflect the name of each Participant and the
amounts deferred by such Participant to an interest bearing account pursuant to
Section 3.2. The Company shall also set up an appropriate record (hereinafter
called the "Stock Account") which will from time to time reflect the name of
each Participant, the number of Stock Units credited to such Participant
pursuant to Section 3.2, and the Fair Market Value of that number of Stock Units
credited to the Participant.
3.2 Deferred Compensation.
(a) A Participant may elect to defer receipt of all
or any part of the Cash Compensation payable to the Participant for
serving on the Board of Directors for any Deferred Compensation Period.
At the election of the Participant, the amount deferred shall be
credited to: (a) his or her Deferred Interest Bearing Account; (b) his
or her Stock Account; or (c) a combination of both. If a Participant
chooses to receive a credit to his Stock Account, a number of Stock
Units (rounded up to the nearest whole number) having a Fair Market
Value on the Election Effective Date equal to the dollar amount of fees
the Participant elects to forego in the applicable Deferred
Compensation Period in exchange for Stock Units shall be credited to
such account. A Participant may only elect to defer Cash Compensation
which is otherwise payable after an election to defer compensation is
made pursuant to Section 5.1 hereof.
(b) As additional deferred compensation and pursuant
to the requirements of paragraph 9 of the 1998 Incentive Plan, each
Eligible Director shall be credited with certain Stock Units on the
later to occur of the IPO Pricing Date or the initial election of an
individual as an Eligible Director and on each subsequent Annual
Director Award Date, as provided for in paragraph 9 of the 1998
Incentive Plan.
-5-
<PAGE> 6
3.3 Crediting of Deferred Amounts.
(a) Any Cash Compensation credited to a Participant's
Deferred Interest Bearing Account or Stock Account shall be credited to
such account on the last day of the month in which the deferred Cash
Compensation would otherwise have been paid (the "Election Effective
Date"). For example, if a Participant effectively elects to defer Cash
Compensation to his Deferred Interest Bearing Account for a Deferred
Compensation Period of 365 days beginning January 1 by notifying the
Company in the manner provided in Section 5.1, the Cash Compensation
which accrues for the month of January shall be credited to such
Participant's Deferred Interest Bearing Account on January 31.
(b) Any Stock Units credited under the 1998 Incentive
Plan to a Participant as described in Section 3.2(b) hereof shall be
credited to the Participant's Stock Account as of the date specified in
Section 3.2(b) hereof.
3.4 Interest on Deferred Interest Bearing Accounts. The amount
of deferred compensation credited to a Participant's Deferred Interest Bearing
Account will bear interest from (but excluding) the date so credited, to (and
including) the Determination Date, at a rate per annum equal to the Applicable
Annual Rate in effect from time to time, compounded monthly, and such interest
shall be credited to the Deferred Interest Bearing Account as of the last day of
each calendar month during the applicable Deferred Compensation Period and the
last day of the calendar month in which such period ends (or, if applicable, the
Determination Date). Interest so credited shall similarly bear interest from
(but excluding) the date so credited, to (and including) the Determination Date,
at a rate per annum equal to the Applicable Annual Rate in effect from time to
time, compounded monthly and credited as of the last day of each calendar month
during the applicable Deferred Compensation Period and the last day of the
calendar month in which such period ends (or, if applicable, the Determination
Date).
3.5 Dividends. As of each date that dividends are paid with
respect to Common Stock, a Participant who has any outstanding Stock Units
credited to his Stock Account shall have a number of Stock Units credited to his
Stock Account with respect to such dividends. The Stock Units credited in
respect of dividends shall have a Fair Market Value equal to the dollar amount
of the dividend paid per share of Common Stock as of such dividend payment date
multiplied by the number of Stock Units credited to the Participant's Stock
Account immediately prior to such dividend payment date.
-6-
<PAGE> 7
3.6 Adjustments.
(a) Exercise of Corporate Powers. The existence of this Plan
and any outstanding Stock Units credited hereunder shall not affect in
any manner the right or power of the Company or its stockholders to
make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the capital stock of the Company or
its business or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock
(whether or not such issue is prior to, on a parity with or junior to
the Common Stock) or the dissolution or liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or
any other corporate act or proceeding of any kind, whether or not of a
character similar to that of the acts or proceedings enumerated above.
(b) Recapitalizations, Reorganizations and Other Activities.
In the event of any subdivision or consolidation of outstanding shares
of Common Stock, declaration of a dividend payable in shares of Common
Stock or other stock split, then (i) the number of Stock Units and (ii)
the appropriate Fair Market Value and other price determinations for
such Stock Units shall each be proportionately adjusted by the Board to
reflect such transaction. In the event of any other recapitalization or
capital reorganization of the Company, any consolidation or merger of
the Company with another corporation or entity, the adoption by the
Company of any plan of exchange affecting the Common Stock or any
distribution to holders of Common Stock of securities or property
(other than normal cash dividends or dividends payable in Common
Stock), the Board shall make appropriate adjustments to (i) the number
of Stock Units and (ii) the appropriate Fair Market Value and other
price determinations for such Stock Units to give effect to such
transaction; provided that such adjustments shall only be such as are
necessary to preserve, without increasing, the value of such units. In
the event of a corporate merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation, the Board shall be
authorized to issue or assume units by means of substitution of new
units, as appropriate, for previously issued units or an assumption of
previously issued units as part of such adjustment.
ARTICLE IV
PAYMENTS
4.1 Period of Deferral. A Participant may elect that payment
of amounts credited to the Participant under the Plan be made or commence at (a)
a date that is five years following the date of the termination of the
Participant's status as a Director of the
-7-
<PAGE> 8
Company, or (b) the date of the termination of the Participant's status as a
Director of the Company (either of such dates elected by the Participant to be
known as the "Determination Date"). If alternative (a) is elected by the
Participant, payment will be made or will commence within sixty (60) days after
the date that is five years after termination of the Participant's status as a
Director of the Company. If alternative (b) is elected by the Participant,
payment will be made or will commence within sixty (60) days after termination
of the Participant's status as a Director of the Company. Notwithstanding the
foregoing, no amount may be distributed in respect of a Stock Unit awarded under
the 1998 Incentive Plan until such Stock Unit has been held under this Plan for
three years.
4.2 Payment of Amounts in Deferred Interest Bearing Account.
As of the Determination Date, the sum of the amounts theretofore credited to a
Participant's Deferred Interest Bearing Account for each Deferred Compensation
Period plus all interest accrued thereon to, and including, the Determination
Date (the "Total Deferred Compensation Amount") shall be calculated. A
Participant shall receive payment of his Total Deferred Compensation Amount with
respect to each Deferred Compensation Period in the form he has previously
elected under Section 4.4.
4.3 Payment of Amounts in Stock Account. As of the
Determination Date, the aggregate Fair Market Value on the Valuation Date
coinciding with or immediately preceding the Determination Date of that number
of Stock Units credited to a Participant's Stock Account as of such
Determination Date with respect to each Deferred Compensation Period and with
respect to each Award under the 1998 Incentive Plan shall be calculated. The
result is the "Total Deferred Unit Amount." A Participant shall receive payment
of his Total Deferred Unit Amount with respect to each Deferred Compensation
Period or 1998 Incentive Plan Award in the form he has previously elected under
Section 4.4.
4.4 Form of Payment. Payment to a Participant of amounts in
his Deferred Interest Bearing Account shall be made in the form of cash. Payment
to a Participant in respect of a Stock Unit in his Stock Account shall be made
in the form of Common Stock; provided that under conditions established by the
Committee, a Participant may elect to receive an amount payable in respect of a
Stock Unit in the form of cash. Payment to a Participant of amounts in both
accounts shall be made by one of the following methods: (a) a lump sum, (b)
three substantially equal consecutive annual installments, or (c) five
substantially equal consecutive annual installments; subject to the requirements
of Section 4.1 hereof that no amount is distributable in respect of a Stock Unit
Award under the 1998 Incentive Plan until it has been held for three years. The
Total Deferred Compensation Amount and the Total Deferred Unit Amount that is to
be distributed in cash shall bear interest from, but excluding, the
Determination Date to, and including, the date paid at the Applicable Annual
Rate as in effect from time to time, compounded monthly, and the payment of each
annual installment shall be accompanied by payment of the amount of interest
accrued thereon.
-8-
<PAGE> 9
4.5 Death Prior to Payment. In the event that a Participant
dies prior to payment of all of the amounts payable pursuant to the Plan, any
remaining amounts together with all interest accrued thereon, shall be paid to
the Participant's designated Beneficiary in a lump sum within sixty (60) days
following the Company's notification of the Participant's death. If no
Beneficiary has been designated, such payment shall be made to the Participant's
estate. A beneficiary designation, or revocation of a prior beneficiary
designation, shall be effective only if it is made in writing on a form provided
by the Company, signed by the Participant and received by the Committee. In the
event that a Participant dies prior to payment of all of the amounts payable
pursuant to the Plan, and the designated Beneficiary dies prior to payment of
all the amounts payable pursuant to the Plan, payment shall be made to the
Participant's estate in a lump sum within sixty (60) days of notification of the
Beneficiary's death.
4.6 Payments to Minors and Incompetents. Should the
Participant become incompetent or should the Participant designate a Beneficiary
who is a minor or incompetent, the Company shall be authorized to pay such funds
to a parent or guardian of such minor or incompetent, or directly to such minor
or incompetent, whichever manner the Committee shall determine in its sole
discretion.
4.7 Change in Control. Participants may elect that upon a
Change in Control, the entire amounts payable under Sections 4.2 and 4.3 be made
in a lump sum payment within sixty (60) days of the Change in Control.
ARTICLE V
ELECTING DEFERRALS
5.1 Manner of Electing Deferral. Each election made by a
Participant to defer Cash Compensation under the Plan (i) shall take the form of
a written document (provided by the Company) signed by the Participant and filed
with the Committee, (ii) shall designate the Deferred Compensation Period for
which deferral is elected, the account to which such deferral shall be credited,
the period of deferral and the form and manner of payment, (iii) shall only
apply to Cash Compensation payable after the date of such election and (iv) may
not be revoked or modified without the prior written approval of the Committee
if the proposed revocation or modification applies to amounts deferred with
respect to a Deferred Compensation Period which has already commenced at the
time such revocation or modification is proposed to be effected. With respect to
each award of Stock Units made to a Participant under the 1998 Incentive Plan,
as described in Section 3.2(b) hereof, the Participant shall make an election
which (i) shall take the form of a written document (provided by the Company)
signed by the Participant and filed with the Committee, (ii) shall designate the
period of deferral and the form and manner of payment elected by the
Participant, and (iii) may not be revoked or modified without the prior written
approval of the Committee. The Committee shall be authorized to adopt such rules
and
-9-
<PAGE> 10
limitations as it shall determine are necessary or appropriate with respect to
the timing of elections to defer compensation under the Plan.
ARTICLE VI
MISCELLANEOUS
6.1 Unfunded Plan. Nothing contained herein shall be deemed to
create a trust of any kind or create any fiduciary relationship. This Plan shall
be unfunded. Funds invested hereunder shall continue for all purposes to be part
of the general funds of the Company. To the extent that a Participant acquires a
right to receive payments from the Company under the Plan, such right shall not
be greater than the right of any unsecured general creditor of the Company and
such right shall be an unsecured claim against the general assets of the
Company. Although bookkeeping accounts may be established with respect to
Participants, any such accounts shall be used merely as a bookkeeping
convenience. The Company shall not be required to segregate any assets that may
at any time be represented by cash or rights thereto, nor shall this Plan be
construed as providing for such segregation, nor shall the Company, the Board or
the Committee be deemed to be a trustee of any cash or rights thereto to be
granted under this Plan. Any liability or obligation of the Company to any
Participant with respect to cash or rights thereto under this Plan shall be
based solely upon any contractual obligations that may be created by this Plan,
and no such liability or obligation of the Company shall be deemed to be secured
by any pledge or other encumbrance on any property of the Company. Neither the
Company nor the Board nor the Committee shall be required to give any security
or bond for the performance of any obligation that may be created by this Plan.
6.2 Title to Funds Remains with Company. Amounts credited to
each Participant's Deferred Interest Bearing Account and Stock Account shall not
be specifically set aside or otherwise segregated, but will be combined with
corporate assets. Title to such funds will remain with the Company and the
Company's only obligation will be to make timely payments to Participants in
accordance with the Plan.
6.3 Statement of Account. A statement will be furnished to
each Participant annually on such date as may be determined by the Committee
stating the balance of the Participant's Deferred Interest Bearing Account and
Stock Account and accrued interest thereon as of a recent date designated by the
Committee.
6.4 Assignability. Except as provided in Section 4.5, no right
to receive payment hereunder shall be transferable or assignable by a
Participant except by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder. Any attempted assignment of any benefit under this Plan in violation
of this Section 6.4 shall be null and void.
-10-
<PAGE> 11
6.5 Amendment, Modification, Suspension or Termination. The
Board may amend, modify, suspend or terminate this Plan for the purpose of
meeting or addressing any changes in legal requirements or for any other purpose
permitted by law, except that no amendment, modification or termination shall,
without the consent of the Participant, impair the rights of any Participant to
the balance in such Participant's Deferred Interest Bearing Account or Stock
Account or the amount of interest accrued thereon as of the date of such
amendment, modification or termination. The Board may at any time and from time
to time delegate to the Committee any or all of this authority under this
Section 6.5.
6.6 Governing Law. This Plan and all determinations made and
actions taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, shall be
governed by and construed in accordance with the laws of the State of Delaware.
-11-
<PAGE> 1
Exhibit 5.1
[Letterhead of Baker & Botts, L.L.P.]
October 22, 1998
Conoco Inc.
600 North Dairy Ashford
Houston, Texas 77079
Gentlemen:
As set forth in the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Conoco Inc., a Delaware corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to up to 100,000 shares
(the "Shares") of Class A Common Stock of the Company, par value $.01 per share,
issuable pursuant to the Conoco Inc. Deferred Compensation Plan for Non-Employee
Directors (the "Plan"), we are passing upon certain legal matters in connection
with the Shares for the Company. At your request, we are furnishing this
opinion to you for filing as Exhibit 5.1 to the Registration Statement.
In our capacity as your counsel in the connection referred to above, we
have examined the Plan, the Amended and Restated Certificate of Incorporation
and Bylaws of the Company, each as amended to date, and the originals, or copies
certified or otherwise identified, of corporate records of the Company,
including minute books of the Company as furnished to us by the Company,
certificates of public officials and of representatives of the Company, statutes
and other instruments and documents as a basis for the opinions hereinafter
expressed. In giving such opinions, we have relied upon certificates of
officers of the Company and of public officials with respect to the accuracy of
the material factual matters contained in such certificates.
We have assumed that all signatures on all documents examined by us are
genuine, that all documents submitted to us as originals are accurate and
complete, that all documents submitted to us as copies are true and correct
copies of the originals thereof and that all information submitted to us was
accurate and complete. In addition, we have assumed for purposes of paragraph 2
below that the consideration received by the Company for the Shares will be not
less than the par value of the Shares.
On the basis of the foregoing, and subject to the assumptions, limitations
and qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. Upon the issuance and sale of Shares originally issued by the
Company pursuant to the provisions of the Plan for consideration fixed in
accordance with the Plan, such Shares will be duly authorized by all
necessary corporate action on the part of the Company, validly issued,
fully paid and nonassessable.
The opinions set forth above are limited in all respects to the General
Corporation Law of the State of Delaware as in effect on the date hereof.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. In giving such consent, we do not
admit that we are within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
BAKER & BOTTS, L.L.P.
<PAGE> 1
EXHIBIT 15.1
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that Conoco Inc., a Delaware corporation ("Conoco"), has
incorporated by reference in this Registration Statement on Form S-8 our report
dated September 28, 1998 (issued pursuant to the provisions of Statement on
Auditing Standards No. 71) included in the Company's prospectus dated October
21, 1998 as filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the Securities Act of 1933 (the "Prospectus"). In addition, we are
aware that Conoco has incorporated by reference in this Registration Statement
on Form S-8 our report dated October 21, 1998 on the pro forma combined
balance sheet as of June 30, 1998 and the pro forma combined statements of
income for the six-month periods ended June 30, 1997 and 1998 included in the
Prospectus. We are also aware of our responsibilities under the Securities Act
of 1933.
Yours very truly,
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
October 21, 1998
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated July 24, 1998 and October 21, 1998
relating to the combined financial statements and the pro forma combined
statement of income, respectively, of Conoco, which appear in the Company's
prospectus dated October 21, 1998 as filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act of 1933.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
October 21, 1998
