<PAGE> 1
As filed with the Securities and Exchange Commission on October 22, 1998
Registration No. 333-______
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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)
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CONOCO INC.
1998 KEY EMPLOYEE STOCK PERFORMANCE PLAN
(Full title of the plan)
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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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED MAXIMUM
AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (2) PRICE PER SHARE PRICE (3) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A Common Stock, par value $.01 per share(1).. 31,857,920 (3) $622,193,203 $172,970
=================================================================================================================================
</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) Consists of the number of shares of Class A Common Stock reserved for
issuance pursuant to the Conoco Inc. 1998 Key Employee Stock Performance
Plan (the "Plan"), including without limitation shares issuable upon
exercise of options (the "Options") to purchase Class A Common Stock
granted under the Plan upon surrender by the holders thereof of options to
purchase common stock, par value $.30 per share, of E. I. du Pont de
Nemours and Company. The Options have been registered on a separate
Registration Statement of Conoco Inc. on Form S-1 (Registration No.
333-60119), and a filing fee was paid in connection therewith.
(3) 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 (a) the aggregate exercise
price of the Options with respect to the shares of Class A Common Stock
issuable upon exercise thereof ($208,193,203) and (b) with respect to the
balance of the shares of Class A Common Stock registered hereby, the
initial public offering price per share of Class A Common Stock of $23.00
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.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information concerning the Conoco
Inc. 1998 Key Employee Stock Performance Plan (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.
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<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).
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<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. 1998 Key Employee Stock Performance Plan.
*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).
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* 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.
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<PAGE> 6
(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 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.
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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.
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SIGNATURE TITLE
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<S> <C>
/s/ Archie W. Dunham President, Chief Executive Officer and Director
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Archie W. Dunham
/s/ Robert W. Goldman Senior Vice President, Finance, and Chief
- ---------------------------------- Financial Officer (Principal Financial Officer and
Robert W. Goldman 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>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <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. 1998 Key Employee Stock Performance Plan.
*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>
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* Filed herewith.
<PAGE> 1
EXHIBIT 4.7
1998 KEY EMPLOYEE STOCK PERFORMANCE PLAN
of
CONOCO INC.
1. Plan. This 1998 Key Employee Stock Performance Plan of Conoco Inc.
(the "Plan") was adopted by Conoco Inc. (the "Company") to reward certain
employees of the Company by enabling them to acquire shares of common stock of
the Company or receive payments determined by reference to such common stock.
2. Objectives. The purpose of this 1998 Stock Performance Plan of
Conoco Inc. is to further the interests of the Company, its Subsidiaries and its
shareholders by providing incentives in the form of awards to employees and to
provide for issuance of awards in connection with the "Option Program" under
which certain existing DuPont awards will be canceled at the election of the
holder. Such awards will give Participants in the Plan an interest in the
Company parallel to that of the shareholders, thus enhancing the proprietary and
personal interest of such Participants in the Company's continued success and
progress.
3. Definitions. As used herein, the terms set forth below shall have
the following respective meanings:
"Authorized Officer" means the Chairman of the Board or the Chief
Executive Officer of the Company (or any other senior officer of the Company to
whom either of them shall delegate the authority to execute any Award Agreement,
where applicable).
"Award" means any Option or SAR granted to a Participant pursuant to
such applicable terms, conditions and limitations as the Committee may establish
in order to fulfill the objectives of the Plan
"Award Agreement" means a written agreement setting forth the terms,
conditions and limitations applicable to an Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee of the Board or such other
committee of the Board as is designated by the Board to administer the Plan;
provided, however, that prior to the appointment of the Committee, "Committee"
shall mean the Board or such other persons as are authorized to act on behalf of
the Board.
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<PAGE> 2
"Common Stock" means the Class A or Class B Common Stock, par value
$.01 per share, of the Company.
"Company" means Conoco Inc., a Delaware corporation.
"Director" means an individual serving as a member of the Board.
"DuPont" means E. I. du Pont de Nemours and Company, a Delaware
corporation.
"DuPont Award" means an option or stock appreciation right granted by
DuPont pursuant to the DuPont Stock Performance Plan, the DuPont Variable
Compensation Plan, the DuPont Corporate Sharing Plan or the Conoco Unit Option
Plan.
"Employee" means an employee of the Company or any of its Subsidiaries
and an individual who has agreed to become an employee of the Company or any of
its Subsidiaries and is expected to become such an employee within the following
six months.
"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, or,
at the discretion of the Committee, the price prevailing on the exchange at the
time of exercise, (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, or, at the
discretion of the Committee, the price prevailing on the Nasdaq National Market
at the time of exercise, (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 granted in connection with the IPO means the price per
share of Common Stock set on the IPO Pricing Date, as set forth in the final
prospectus relating to the IPO.
"Grant Date" means the date an Award is granted to a Participant
pursuant to the Plan.
"Grant Price" means the price at which a Participant may exercise his
or her right to receive cash or Common Stock, as applicable, under the terms of
an Award.
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<PAGE> 3
"Incentive Stock Option" means an Option that is intended to comply
with the requirements set forth in Section 422 of the Code.
"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 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 it sells in the IPO.
"IPO Pricing Date" means the date of the execution and delivery of an
underwriting or other purchase agreement among the Company and the underwriters
relating to the IPO setting forth the price at which shares of Common Stock will
be issued and sold by the Company to the underwriters and the terms and
conditions thereof.
"Nonqualified Stock Option" means an Option that is not an Incentive
Stock Option.
"Option" means a right to purchase a specified number of shares of
Common Stock at a specified Grant Price, which may be an Incentive Stock Option
or a Nonqualified Stock Option.
"Option Program" means a program involving the cancellation of certain
existing DuPont Awards, and the issuance upon such cancellation of comparable
awards with respect to Class A Common Stock, in which certain employees will be
given the option to participate in connection with the IPO.
"Option Program Award" means an Option or SAR granted pursuant to
Section 8(c) in connection with the Option Program.
"Participant" means an Employee to whom an Award has been granted under
this Plan.
"Stock Appreciation Right" or "SAR" means a right to receive a payment,
in cash or in Common Stock, equal to the excess of the Fair Market Value or
other specified valuation of a specified number of shares of Common Stock on the
date the right is exercised over a specified Grant Price, in each case, as
determined by the Committee.
"Subsidiary" means (i) in the case of a corporation, any corporation of
which the Company directly or indirectly owns shares representing 50% or more of
the combined voting power of the shares of all classes or series of capital
stock of such corporation which have the right to vote generally on matters
submitted to a vote of the stockholders of such corporation and (ii) in the case
of a partnership or other business entity not organized as a corporation, any
such business entity of
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<PAGE> 4
which the Company directly or indirectly owns 50% or more of the voting, capital
or profits interests (whether in the form of partnership interests, membership
interests or otherwise).
4. Eligibility. All Employees are eligible for the grant of Awards
under this Plan.
5. Common Stock Available for Awards.
(a) Subject to the provisions of paragraph 14 hereof, no Award shall
be granted if it shall result in the aggregate number of shares of Class A
Common Stock issued under the Plan plus the number of shares of Class A
Common Stock covered by or subject to Awards then outstanding (after giving
effect to the grant of the Award in question) to exceed the greater of (a)
18,000,000 shares or (b) 3.0 % of the number of shares of Common Stock
(including both Class A and Class B) outstanding at the time of granting
such Award. No more than 6,000,000 shares of Class A Common Stock shall be
available for Incentive Stock Options. No Awards shall be granted under
this Plan with respect to Class B Common Stock. The number of shares of
Common Stock that are the subject of Awards under this Plan that are
forfeited or terminated, expire unexercised, are settled in cash in lieu of
Common Stock or in a manner such that all or some of the shares covered by
an Award are not issued to a Participant, shall again immediately become
available for Awards hereunder. The Committee may from time to time adopt
and observe such procedures concerning the counting of shares against the
Plan maximum as it may deem appropriate. The Board and the appropriate
officers of the Company shall from time to time take whatever actions are
necessary to file any required documents with governmental authorities,
stock exchanges and transaction reporting systems to ensure that shares of
Common Stock are available for issuance pursuant to Awards.
(b) Option Program Awards shall not be subject to the limitations in
paragraph 8(b), nor shall such Awards count against the limitations on
Common Stock available for Awards set forth in paragraph 5(a). Option
Program Awards shall be subject to such terms and conditions as the
Committee may establish in accordance with Section 8(c), but shall in all
events comply with the applicable provisions of that certain Restructuring,
Transfer, and Separation Agreement to which the Company and DuPont are
parties and shall in all respects comply with the provisions of Exhibit
10.3 thereto (the Employee Matters Agreement).
6. Administration.
(a) The Plan shall be administered by the Committee.
(b) The Committee shall have full and exclusive power and
authority to administer this Plan and to take all actions that 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
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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, provide for the extension of the exercisability of an
Award, accelerate the vesting or exercisability of an Award, eliminate or
make less restrictive any restrictions applicable to an Award, waive any
restriction or other provision of this Plan or otherwise amend or modify an
Award in any manner that is either (i) not adverse to the Participant to
whom such Award was granted or (ii) consented to by such Participant. The
Committee may grant an Award to an Employee who it expects to become an
employee of the Company or any of its Subsidiaries within the following six
months, with such Award being subject to the individual's actually becoming
an employee within such time period, and subject to such other terms and
conditions as may be established by the Committee. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in
this Plan or in any Award in the manner and to the extent the Committee
deems necessary or desirable to further the Plan purposes. 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.
(c) No member of the Committee or officer of the Company to whom the
Committee has delegated authority in accordance with the provisions of
paragraph 7 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 any officer of the
Company in connection with the performance of any duties under this Plan,
except for his or her own willful misconduct or as expressly provided by
statute.
7. 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. The Committee may engage or authorize the engagement of a third party
administrator to carry out administrative functions under the Plan.
8. Awards.
(a) The Committee shall determine the type or types of Awards to be
made under this Plan and shall designate from time to time the Employees
who are to be the recipients of Awards. Each Award shall be embodied in an
Award Agreement, which shall contain such terms, conditions and limitations
as shall be determined by the Committee in its sole discretion and, if
required by the Committee, shall be signed by the Participant to whom the
Award is granted and by an Authorized Officer for and on behalf of the
Company. Awards may consist of those listed in this paragraph 8(a) and may
be granted singly, in combination or in tandem. Awards may also be granted
in combination or in tandem with, in replacement of, or as alternatives to,
grants or rights under this Plan or any other employee plan of the Company
or any of its Subsidiaries, including the plan of any acquired entity. An
Award may provide for the grant or issuance of additional, replacement or
alternative Awards upon
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the occurrence of specified events, including the exercise of the original
Award granted to a Participant. All or part of an Award may be subject to
conditions established by the Committee, which may include, but are not
limited to, continuous service with the Company and its Subsidiaries,
achievement of specific business objectives, increases in specified
indices, attainment of specified growth rates and other comparable
measurements of performance. Upon the termination of employment by a
Participant, any unexercised, deferred, unvested or unpaid Awards shall be
treated as set forth in the applicable Award Agreement.
(i) Options. An Award may be in the form of an Option, which may
be an Incentive Stock Option or a Nonqualified Stock Option. The Grant
Price of an Incentive Stock Option shall be not less than the Fair
Market Value of the Common Stock on the Grant Date. Subject to the
foregoing provisions, the terms, conditions and limitations applicable
to any Options awarded to Employees pursuant to this Plan, including
the Grant Price, the term of the Options and the date or dates upon
which they become exercisable, shall be determined by the Committee.
(ii) Stock Appreciation Rights. An Award may be in the form of an
SAR. The terms, conditions and limitations applicable to any SARs
awarded to Employees pursuant to this Plan, including the Grant Price,
the term of any SARs and the date or dates upon which they become
exercisable, shall be determined by the Committee.
(b) Notwithstanding anything to the contrary contained in this Plan
excluding paragraph 5(b), no Participant may be granted, during any
calendar year, Awards that are exercisable for more than 200,000 shares of
Common Stock.
(c) Holders of DuPont Awards who elect to participate in the Option
Program may be granted Option Program Awards under this Plan. An Option
Program Award shall generally be subject to the same terms and conditions
as the canceled DuPont Award, with appropriate adjustments to exercise
price and the number of shares subject to the Option Program Award, subject
to such other terms as are determined by the Committee.
9. Payment of Awards.
(a) General. Payment made to a Participant pursuant to an Award may be
made in the form of cash or Class A Common Stock, or a combination thereof,
and may include such restrictions as the Committee shall determine,
including, in the case of Common Stock, restrictions on transfer and
forfeiture provisions.
(b) Deferral. With the approval of the Committee, amounts payable in
respect of Awards may be deferred and paid either in the form of
installments or as a lump-sum payment. The Committee may permit selected
Participants to elect to defer payments of some or all types of Awards or
any other compensation otherwise payable by the Company
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in accordance with procedures established by the Committee. Any deferred
payment pursuant to an Award, whether elected by the Participant or
specified by the Award Agreement or by the Committee, may be forfeited if
and to the extent that the Award Agreement so provides.
(c) Substitution of Awards. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for another
Award or Awards of the same or different type.
(d) Cash-out of Awards. At the discretion of the Committee, an Award
may be settled by a cash payment equal to the difference between the Fair
Market Value per share of Common Stock on the date of exercise and the
Grant Price of the Award, multiplied by the number of shares with respect
to which the Award is exercised.
10. Option Exercise. The Grant Price shall be paid in full at the time
of exercise in cash or, if permitted by the Committee and elected by the
optionee, the optionee may purchase such shares by means of tendering Common
Stock or surrendering another Award valued at Fair Market Value on the date of
exercise, or any combination thereof. The Committee shall determine acceptable
methods for Participants to tender Common Stock or other Awards. The Committee
may provide for procedures to permit the exercise or purchase of such Awards by
use of the proceeds to be received from the sale of Common Stock issuable
pursuant to an Award. The Committee may adopt additional rules and procedures
regarding the exercise of Options from time to time, provided that such rules
and procedures are not inconsistent with the provisions of this paragraph.
11. Taxes. The Company or its designated third party administrator
shall have the right to deduct applicable taxes from any payment hereunder and
withhold, at the time of delivery of cash or shares of Common Stock under this
Plan, an appropriate amount of cash or number of shares of Common Stock or a
combination thereof for payment of taxes or other amounts required by law or to
take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for withholding of such taxes. The Committee may also
permit withholding to be satisfied by the transfer to the Company of shares of
Common Stock theretofore owned by the holder of the Award with respect to which
withholding is required. If shares of Common Stock are used to satisfy tax
withholding, such shares shall be valued based on the Fair Market Value when the
tax withholding is required to be made. The Committee may provide for loans, on
either a short term or demand basis, from the Company to a Participant to permit
the payment of taxes required by law.
12. Amendment, Modification, Suspension or Termination of the Plan.
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 (i) no amendment or alteration that would
adversely affect the rights of any Participant under any Award previously
granted to such Participant shall be made without the consent of such
Participant and
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(ii) no amendment or alteration shall be effective prior to its approval by the
stockholders of the Company to the extent such approval is required by
applicable legal requirements.
13. Assignability. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under this Plan
shall be assignable or otherwise transferable 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,
or the rules thereunder. The Committee may prescribe and include in applicable
Award Agreements other restrictions on transfer. Any attempted assignment of an
Award or any other benefit under this Plan in violation of this paragraph 13
shall be null and void.
14. Adjustments.
(a) The existence of outstanding Awards 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 Class A 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) 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 shares of Common
Stock reserved under this Plan, (ii) the number of shares of Common Stock
covered by outstanding Awards, (iii) the Grant Price in respect of such
Awards, (iv) the appropriate Fair Market Value and other price
determinations for such Awards, and (v) the Award limitations shall each be
proportionately adjusted by the Board as appropriate 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 shares of Common Stock covered by Awards,
(ii) the Grant Price in respect of such Awards, (iii) the appropriate Fair
Market Value and other price determinations for such Awards, and (iv) the
Award limitations to reflect such transaction; provided that such
adjustments shall only be such as are necessary to maintain the
proportionate interest of the holders of the Awards and preserve, without
increasing, the value of such Awards. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization
or liquidation, the Board shall be authorized (x) to issue or assume Awards
by means of substitution of new Awards, as appropriate, for previously
issued Awards or to assume previously issued Awards
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as part of such adjustment or (y) to cancel Awards that are Options or SARs
and give the Participants who are the holders of such Awards notice and
opportunity to exercise for 30 days prior to such cancellation.
15. Restrictions. No Common Stock or other form of payment shall be
issued with respect to any Award unless the Company shall be satisfied based on
the advice of its counsel that such issuance will be in compliance with
applicable federal and state securities laws. Certificates evidencing shares of
Common Stock delivered under this Plan (to the extent that such shares are so
evidenced) may be subject to such stop transfer orders and other restrictions as
the Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any securities exchange
or transaction reporting system upon which the Common Stock is then listed or to
which it is admitted for quotation and any applicable federal or state
securities law. The Committee may cause a legend or legends to be placed upon
such certificates (if any) to make appropriate reference to such restrictions.
16. Unfunded Plan. This Plan shall be unfunded. Although bookkeeping
accounts may be established with respect to Participants under this Plan, any
such accounts shall be used merely as a bookkeeping convenience. The Company
shall not be required to segregate any assets for purposes of this Plan or
Awards hereunder, nor shall the Company, the Board or the Committee be deemed to
be a trustee of any benefit to be granted under this Plan. Any liability or
obligation of the Company to any Participant with respect to an Award under this
Plan shall be based solely upon any contractual obligations that may be created
by this Plan and any Award Agreement, 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.
17. 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.
18. Effectiveness. The Plan, as approved by the Board, shall be
effective as set forth herein as of October 16, 1998, but all Awards granted
hereunder prior to the IPO Closing Date shall be null and void and canceled
without consideration if the IPO Closing Date does not occur on or before ten
(10) business days after the IPO Pricing Date. This Plan was approved by the
stockholder of the Company on October 19, 1998.
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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
31,857,920 shares (the "Shares") of Class A Common Stock of the Company, par
value $.01 per share, issuable pursuant to the Conoco Inc. 1998 Key Employee
Stock Performance Plan (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, following due authorization of the
award with respect to which such Shares are issuable by the Board of
Directors of the Company or a duly constituted and acting committee of
the Board of Directors of the Company as provided in and 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.
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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
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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
