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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): APRIL 15, 1999
CONOCO INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1-14521 51-0370352
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
</TABLE>
600 NORTH DAIRY ASHFORD ROAD
HOUSTON, TEXAS 77079
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (281) 293-1000
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ITEM 5. OTHER EVENTS.
On April 15, 1999, Conoco Inc. (the "Company") entered into a
Terms Agreement (incorporating by reference the terms of an Underwriting
Agreement relating to unsecured debt securities (the "Underwriting Agreement"))
dated April 15, 1999 (the "Terms Agreement") with Credit Suisse First Boston
Corporation and Salomon Smith Barney Inc., as representatives of the several
underwriters named in Schedule A to the Terms Agreement, relating to the
offering by the Company of $1,350,000,000 aggregate principal amount of 5.90%
Notes due 2004, $750,000,000 aggregate principal amount of 6.35% Notes due 2009
and $1,900,000,000 aggregate principal amount of 6.95% Notes due 2029
(collectively, the "Notes") under its Registration Statement on Form S-3
(Registration No. 333-72291; the "Registration Statement"). The Notes will be
issued under an Indenture, dated as of April 15, 1999, between the Company and
Bank One, N.A., as trustee (the "Trustee"), a form of which was filed as Exhibit
4.1 to the Registration Statement. Each of the (i) Terms Agreement, (ii) the
form of the Underwriting Agreement, (iii) the terms of the Notes, including the
form of Note, (iv) an opinion of Baker & Botts, L.L.P., counsel to the Company,
as to certain tax matters relating to the Notes and (v) the Statement of
Eligibility and Qualification under the Trust Indenture Act of 1939 of the
Trustee on Form T-1 is being filed as an exhibit to this report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
1.1 -- Form of Underwriting Agreement relating to unsecured
debt securities
1.2 -- Terms Agreement dated April 15, 1999 between the
Company and Credit Suisse First Boston Corporation
and Salomon Smith Barney Inc., as representatives of
the several underwriters named in Schedule A to the
Terms Agreement
4.1 -- Terms of the Notes, including the form of Note
8.1 -- Opinion of Baker & Botts, L.L.P., counsel to the
Company, as to certain tax matters relating to the
Notes
25.1 -- Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Bank One, N.A. on
Form T-1
-2-
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CONOCO INC.
By: /s/ Rick A. Harrington
-----------------------------------------
Rick A. Harrington
Senior Vice President, Legal, and
General Counsel
Date: April 16, 1999
-3-
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EXHIBIT INDEX
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<S> <C>
1.1 -- Form of Underwriting Agreement relating to unsecured
debt securities
1.2 -- Terms Agreement dated April 15, 1999 between the
Company and Credit Suisse First Boston Corporation
and Salomon Smith Barney Inc., as representatives of
the several underwriters named in Schedule A to the
Terms Agreement
4.1 -- Terms of the Notes, including the form of Note
8.1 -- Opinion of Baker & Botts, L.L.P., counsel to the
Company, as to certain tax matters relating to the
Notes
25.1 -- Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Bank One, N.A. on
Form T-1
</TABLE>
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EXHIBIT 1.1
EXECUTION COPY
CONOCO INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
1. Introductory. Conoco Inc., a Delaware corporation ("COMPANY"),
proposes to issue and sell from time to time certain of its unsecured debt
securities registered under the registration statement referred to in Section
2(a) ("REGISTERED SECURITIES"). The Registered Securities will be issued under
an indenture, dated as of April 15, 1999 ("INDENTURE"), between the Company and
Bank One, N.A., as Trustee, in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and other
terms, with all such terms for any particular series of the Registered
Securities being determined at the time of sale. Particular series of the
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-72291), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3 and including any documents
incorporated by reference, is hereinafter referred to as the
"REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented as contemplated by
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2
Section 3 to reflect the terms of the Offered Securities and the terms
of offering thereof, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(B)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference
therein, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically
for use therein.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements. The Terms Agreement will also
specify the time and date of delivery and payment (such time and date, or such
other time not later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "CLOSING DATE"), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of the
Offered Securities. For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the Closing Date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of securities for all
the Offered Securities sold pursuant to the offering. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global securities in definitive form (the "GLOBAL
SECURITIES") deposited with
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3
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Representatives, in each case drawn to
the order of the Company at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as custodian for
DTC of the Global Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representatives, subparagraph (5)) not later
than the second business day following the execution and delivery of
the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity
to comment on any such proposed amendment or supplement; and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement that will correct such statement or omission
or an amendment that will effect such compliance. The terms
"supplement" and "amendment" as used in this Agreement include, without
limitation, all documents filed by the Company with the Commission
subsequent to the date of
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4
the Prospectus that are deemed to be incorporated by reference in the
Prospectus. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the latest of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representatives reasonably request.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution; provided, however,
that the Company will not be required in connection therewith to
register or qualify as a foreign corporation where it is not now so
qualified or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in any jurisdiction where it
is not now so subject.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
(other than a report on Form 11-K) and any definitive proxy statement
of the Company filed with the Commission under the Securities Exchange
Act of 1934 or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as the Representatives may
reasonably request in connection with the offering of the Offered
Securities.
(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered
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5
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
may designate and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the
Offered Securities, for any applicable filing fee incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Registered Securities, for any travel expenses of
the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of Registered Securities and for expenses
incurred in preparing, printing and distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Representatives for a period beginning at the time of execution of
the Terms Agreement and ending the number of days after the Closing
Date specified under "Blackout" in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives, on behalf of the Underwriters, shall have received a
letter, dated the date of delivery thereof, of PricewaterhouseCoopers
LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules audited by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
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(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, included in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial statements for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated total revenues, net income and net
income per share amounts or other amounts
constituting such "capsule" information and described
in such letter do not agree with the corresponding
amounts set forth in the unaudited consolidated
financial statements or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets (working capital) or
stockholders' equity, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length
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ended the date of the latest income statement
included in the Prospectus, in consolidated total
revenues or net income;
except in all cases set forth in clauses (C) and (D)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications
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8
of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives, on behalf of the Underwriters, shall
have received an opinion, dated the Closing Date, of Baker & Botts,
L.L.P., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized, executed, authenticated, issued and delivered; the
Indenture and the Offered Securities are valid and legally
binding obligations of the Company enforceable against the
Company in accordance with their terms, except to the extent
such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general principles of
equity (whether considered in a proceeding in equity or at
law); and the Offered Securities conform to the description
thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required under the Delaware General Corporation Law,
the laws of the State of Texas or the federal laws of the
United States for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Offered Securities by the Company, except such as have
been obtained and made under the Act and the Trust Indenture
Act and such as may be required under state securities laws;
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(iv) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement) and the issuance and sale of the Offered
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the
Delaware General Corporation Law, the laws of the State of
Texas or the federal laws of the United States, and the
Company has all necessary corporate power and authority to
authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions
of this Agreement);
(v) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Act, and the registration
statement relating to the Registered Securities, as of its
effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or
supplement thereto, as of its date (in each case, other than
the financial statements and schedules, the notes thereto and
the auditor's reports thereon, the other financial, reserve
engineering, numerical, statistical and accounting data
included or incorporated by reference therein, or omitted
therefrom, as to which such counsel need not comment), appear
on their face to comply as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations; and
(vi) The Terms Agreement (including the provisions of
this Agreement) has been duly authorized, executed and
delivered by the Company.
Such counsel shall also state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants of
the Company, representatives of the Underwriters and counsel to the
Underwriters at which the contents of the Registration Statement and
the Prospectus were discussed and, although such counsel did not
independently verify such information and is not passing upon and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
<PAGE> 10
10
and the Prospectus, on the basis of the foregoing (relying as to
materiality in part upon statements of officers and other
representatives of the Company) no facts came to such counsel's
attention that led such counsel to believe that the Registration
Statement (other than the financial statements and schedules, the notes
thereto and the auditor's reports thereon, the other financial, reserve
engineering, numerical, statistical and accounting data included or
incorporated by reference therein, or omitted therefrom, and the
exhibits thereto, as to which such counsel need not comment) as of its
effective date contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus (other than the financial statements, the notes
thereto and the auditors's report thereon and the other financial,
reserve engineering, numerical, statistical and accounting data
included or incorporated by reference therein, or omitted therefrom, as
to which such counsel need not comment) as of its issue date or as of
the Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The Representatives, on behalf of the Underwriters, shall
have received an opinion, dated the Closing Date, of Rick A.
Harrington, Esq., general counsel for the Company, to the effect that:
(i) The Company is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as whole;
(ii) Each Material Subsidiary of the Company (as
defined in the Terms Agreement) has been duly incorporated or
organized, is validly existing as a corporation or partnership
in good standing under the laws of the jurisdiction of its
organization, has the corporate or partnership power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each Material Subsidiary of the Company
have been duly and validly authorized and issued, are fully
paid and non-assessable; except as set forth in the Terms
Agreement, all of the issued shares of capital stock of each
Material Subsidiary and all partnership interests in any
Material Subsidiary, where
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11
applicable, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of
this Agreement) and the issuance and sale of the Offered
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
agreement or instrument to which the Company or any Material
Subsidiary is a party or by which the Company or any Material
Subsidiary is bound or to which any of the properties of the
Company or any Material Subsidiary is subject that is material
to the Company and its subsidiaries, taken as a whole, or the
charter or by-laws of the Company;
(iv) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate in all material
respects and fairly present the information required to be
shown; and
(v) Such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that, in such counsel's judgment, are required to be
described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required.
Such counsel shall also state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants of
the Company, representatives of the Underwriters and counsel to the
Underwriters at which the contents of the Registration Statement and
the Prospectus were discussed and, although such counsel did not
independently verify such information and is not passing upon and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Prospectus other than those referenced in paragraph (iv) above, on
the basis of the foregoing no facts came to such counsel's attention
that led such counsel to believe that the Registration Statement (other
than the financial statements and schedules, the notes thereto and the
auditor's reports thereon, the other financial, reserve engineering,
numerical, statistical and accounting data included or incorporated by
reference therein, or omitted therefrom, and the exhibits thereto, as
to which such counsel need express no belief) as of its effective date
contained an untrue statement of a material fact or omitted to state a
<PAGE> 12
12
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus
(other than the financial statements, the notes thereto and the
auditors's report thereon and the other financial, reserve engineering,
numerical, statistical and accounting data included or incorporated by
reference therein, or omitted therefrom, as to which such counsel need
express no belief) as of its issue date or as of the Closing Date
included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(f) The Representatives, on behalf of the Underwriters, shall
have received from Cravath, Swaine & Moore, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the
Offered Securities, the Registration Statement, the Prospectus and
other related matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(g) The Representatives, on behalf of the Underwriters, shall
have received a certificate, dated the Closing Date, of the President
or any Vice President and a principal financial or accounting officer
of the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and that, subsequent to the date of
the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Representatives, on behalf of the Underwriters, shall
have received a letter, dated the Closing Date, of
PricewaterhouseCoopers LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request.
<PAGE> 13
13
The Representatives may in their sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus or preliminary prospectus supplement the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus supplement relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in connection with such purchase and
any such loss, claim, damage or liability of such Underwriter results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any
<PAGE> 14
14
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i)
<PAGE> 15
15
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-
<PAGE> 16
16
defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments under the Terms Agreement (including the provisions of
this Agreement), to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Offered Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 600 North Dairy Ashford, Houston, Texas
77079, Attention: Chief Financial Officer.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
<PAGE> 17
17
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives will be binding upon all the
Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
<PAGE> 1
EXHIBIT 1.2
CONOCO INC.
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
April 15, 1999
To: The Representatives of the Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named in
Schedule A hereto for their respective accounts, on and subject to the terms and
conditions of the Underwriting Agreement to be filed by the Company in its
Report on Form 8-K dated April 16, 1999 ("UNDERWRITING AGREEMENT"), the
following securities ("OFFERED SECURITIES") on the following terms:
TITLE: 5.90% Notes due 2004 ("2004 NOTES").
6.35% Notes due 2009 ("2009 NOTES").
6.95% Notes due 2029 ("2029 NOTES").
PRINCIPAL AMOUNT: $1,350,000,000 of 2004 Notes, $750,000,000
of 2009 Notes, and $1,900,000,000 of 2029 Notes.
INTEREST: 5.90% per annum on the 2004 Notes, 6.35% per annum
on the 2009 Notes, and 6.95% per annum on the 2029 Notes, in each case
from April 20, 1999, payable semiannually on April 15 and October 15,
commencing October 15, 1999, to holders of record on the preceding
April 1 or October 1, as the case may be.
MATURITY: April 15, 2004 for the 2004 Notes.
April 15, 2009 for the 2009 Notes.
April 15, 2029 for the 2029 Notes.
<PAGE> 2
2
OPTIONAL REDEMPTION: The Company may redeem the Offered
Securities of each series, in whole or in part, at any time and from
time to time, according to the price formula set forth in the
Prospectus Supplement.
SINKING FUND: None.
LISTING: Luxembourg Stock Exchange.
PURCHASE PRICE: 99.356% of principal amount for the 2004
Notes; 99.350% of principal amount for the 2009 Notes; and 99.125% of
principal amount for the 2029 Notes plus, in each case, accrued
interest, if any, from April 20, 1999.
EXPECTED REOFFERING PRICE: 99.856% of principal amount for the
2004 Notes; 100.000% of principal amount for the 2009 Notes; and
100.000% of principal amount for the 2029 Notes, in each case subject
to change by the Representatives.
CLOSING: 10:00 A.M. on April 20, 1999, at the offices of
Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York 10019 in
Federal (same day) funds.
SETTLEMENT AND TRADING: Book-Entry Only via DTC.
BLACKOUT: Until 14 days after the Closing Date.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, NY 10010-3629
Attention: Investment Banking Department,
Transaction Advisory Group
Salomon Smith Barney Inc.
388 Greenwich Street, 34th Floor
New York, NY 10013
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference. The Material Subsidiaries of the Company are Conoco Inc. (formerly
Continental Oil Company), Norske Conoco A/S, Conoco Mineraloel GmbH, Conoco
Limited, Conoco (U.K.) Limited, Conoco Oil & Gas Associates L.P., Conoco Asia
Limited, Lobo Pipeline Company and Conoco Development Ltd. The Company and its
<PAGE> 3
3
affiliates own, directly or indirectly, a total of approximately 74% of the
partnership interests in Conoco Oil & Gas Associates L.P.
The Offered Securities will be made available for checking and
packaging at the offices of Cravath, Swaine & Moore at least 24 hours prior to
the Closing Date.
Each Underwriter severally represents and agrees that (i) it has not
offered or sold, and prior to the date six months after the date of issue of the
Offered Securities will not offer or sell, any Offered Securities to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Reglations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
The Underwriters agree that they will reimburse the Company $1,650,000
for certain of the Company's expenses in connection with the offering of the
Offered Securities.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the paragraph under the caption "Underwriting" in the prospectus supplement and
the information contained in the paragraphs regarding the United Kingdom, the
sentence regarding market making in the next paragraph and the penultimate
paragraph under the caption "Underwriting" in the prospectus supplement.
<PAGE> 4
4
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
Conoco Inc.
By /s/ M. W. Espinosa
---------------------------------
M. W. Espinosa
Treasurer
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date
first above written.
Credit Suisse First Boston Corporation,
Salomon Smith Barney Inc.,
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By Credit Suisse First Boston Corporation
By /s/ Wallace C. Henderson
---------------------------------------
Name: Wallace C. Henderson
Title: Managing Director
<PAGE> 5
SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF
UNDERWRITER 2004 NOTES 2009 NOTES 2029 NOTES
----------- ---------- ---------- ----------
<S> <C> <C> <C>
Credit Suisse First Boston Corporation........................ $ 465,750,000 $258,750,000 $ 655,500,000
Salomon Smith Barney Inc. .................................... 465,750,000 258,750,000 655,500,000
Chase Securities Inc.......................................... 67,500,000 37,500,000 95,000,000
Goldman, Sachs & Co........................................... 67,500,000 37,500,000 95,000,000
Lehman Brothers Inc........................................... 67,500,000 37,500,000 95,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................................... 67,500,000 37,500,000 95,000,000
Morgan Stanley & Co. Incorporated............................. 67,500,000 37,500,000 95,000,000
NationsBanc Montgomery Securities LLC......................... 67,500,000 37,500,000 95,000,000
The Bank of Tokyo-Mitsubishi, Ltd............................. 1,687,500 937,500 2,375,000
Bayerische Hypo- und Vereinsbank AG........................... 1,687,500 937,500 2,375,000
Blaylock & Partners, L.P...................................... 1,687,500 937,500 2,375,000
Commerzbank Capital Markets Corporation....................... 1,687,500 937,500 2,375,000
Credit Lyonnais Securities (USA) Inc.......................... 1,687,500 937,500 2,375,000
Greenwich NatWest Ltd. (as agent for National
Westminster Bank, Plc).................................... 1,687,500 937,500 2,375,000
SG Cowen Securities Corporation............................... 1,687,500 937,500 2,375,000
SunTrust Equitable Securities Corporation..................... 1,687,500 937,500 2,375,000
-------------- ------------ --------------
Total................................................ $1,350,000,000 $750,000,000 $1,900,000,000
============== ============ ==============
</TABLE>
<PAGE> 1
CONOCO INC.
5.90% Notes due 2004
6.35% Notes due 2009
6.95% Notes due 2029
Three series of Securities are hereby established pursuant to
Section 2.01 of the Indenture dated as of April 15, 1999 (the "Indenture")
between Conoco Inc. (the "Company") and Bank One, N.A., as trustee (the
"Trustee"), as follows:
1. Each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Indenture.
2. The title of the 5.90% Notes due 2004 shall be "5.90% Notes
due 2004" (the "2004 Notes"), the title of the 6.35% Notes due 2009 shall be
"6.35% Notes due 2009" (the "2009 Notes") and the title of the 6.95% Notes due
2029 shall be "6.95% Notes due 2029" (the "2029 Notes" and, together with the
2004 Notes and the 2009 Notes, the "Notes").
3. The limit upon the aggregate principal amount of the 2004
Notes, the 2009 Notes and the 2029 Notes that may be authenticated and delivered
under the Indenture (except for Notes of such series authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Notes
of such series pursuant to Section 2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 of the
Indenture and except for any Notes of such series which, pursuant to Section
2.04 or 2.17 of the Indenture, are deemed never to have been authenticated and
delivered thereunder) is $1,350,000,000, $750,000,000 and $1,900,000,000,
respectively; provided, however, that the authorized aggregate principal amount
of such series may be increased before or after the issuance of any Notes of
such series by a Board Resolution (or action pursuant to a Board Resolution) to
such effect.
4. The Notes shall be issued as permanent Global Securities
under the Indenture. The Depository Trust Company and the Trustee are hereby
designated as the Depositary and the Security Custodian, respectively, for the
Global Securities under the Indenture.
5. The date on which the principal of the 2004 Notes, the 2009
Notes and the 2029 Notes is payable shall be April 15, 2004, April 15, 2009 and
April 15, 2029, respectively.
6. The rate at which the 2004 Notes shall bear interest shall
be 5.90% per annum, the rate at which the 2009 Notes shall bear interest shall
be 6.35% per annum and the rate at which the 2029 Notes shall bear interest
shall be 6.95% per annum. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months. No Additional Amounts with respect to the Notes
shall be payable. The date from which interest shall accrue for the Notes of
each series shall be April 20, 1999. The Interest Payment Dates on which such
interest shall be payable shall be April 15 and October 15 of each year,
commencing October 15, 1999. The record dates for the interest payable
A-1
<PAGE> 2
on the Notes on any Interest Payment Date shall be the April 1 and October 1, as
the case may be, next preceding such Interest Payment Date.
7. The place or places where the principal of, premium (if
any) on and interest on the Notes shall be payable shall be the office or agency
of the Company maintained for that purpose, initially the office of the Trustee,
in The City of New York, and any other office or agency maintained by the
Company for such purpose. Payments in respect of Notes evidenced by a Global
Security (including principal, premium, if any, and interest) shall be made by
wire transfer of immediately available funds to the accounts specified by the
Holder of such Notes. In all other cases, at the option of the Company, payment
of interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the register of the Notes maintained by
the Registrar.
8. The Paying Agent and Registrar for the Notes of each series
initially shall be the Trustee. In addition, as long as the Notes of any series
are listed on the Luxembourg Stock Exchange, the Company shall maintain a Paying
Agent and Registrar for the Notes of such series in Luxembourg, which initially
shall be Kredietbank S.A. Luxembourg.
9. The Notes are subject to redemption, in whole or in part,
at any time and from time to time, at the option of the Company, upon not less
than 30 nor more than 60 days' prior notice as provided in the Indenture, at a
Redemption Price equal to the greater of (i) 100% of the principal amount of the
Notes to be redeemed and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon, discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 12.5 basis points for the 2004 Notes, 20 basis points for the
2009 Notes and 25 basis points for the 2029 Notes, in each case plus accrued
interest thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity
(computed as of the second Business Day immediately preceding such Redemption
Date) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the applicable series of Notes.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
as of the third Business Day preceding such Redemption Date,
A-2
<PAGE> 3
as set forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, (a) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation (and its successors), Salomon Smith Barney Inc. (and its
successors) and two other nationally recognized investment banking firms that
are Primary Treasury Dealers specified from time to time by the Company;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer (a "Primary Treasury Dealer"), the Company shall
substitute therefor another nationally recognized investment banking firm that
is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer as of 3:30
p.m., New York time, on the third Business Day preceding such Redemption Date.
"Remaining Scheduled Payments" means, with respect to each
Note to be redeemed, the remaining scheduled payments of the principal thereof
and interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that, if such Redemption Date is not an
Interest Payment Date with respect to such Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such Redemption Date.
10. The Company shall have no obligation to redeem, purchase
or repay Notes pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof.
11. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Annex A hereto (the "Form of Note").
12. Each Note that is a Global Security shall bear the legend
set forth on the face of the Form of Note.
A-3
<PAGE> 4
ANNEX A
[FACE OF SECURITY]
CONOCO INC.
[5.90% NOTE DUE 2004] [6.35% NOTE DUE 2009] [6.95% NOTE DUE 2029]
CUSIP No._____________
No.___________ $_____________
Conoco Inc., a Delaware corporation (the "Company," which term
includes any successor Person under the Indenture hereinafter referred to)
__________, for value received, promises to pay to ____________ or registered
assigns, the principal sum of Dollars [, or such greater or lesser amount as
indicated on the Schedule of Exchanges of Securities hereto,](1) on April 15,
[2004] [2009] [2029].
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and its
corporate seal or a facsimile thereof to be affixed hereto or imprinted hereon.
Dated:
[SEAL] CONOCO INC.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
- --------------------
(1) This phrase to be included only if the Security is a Global Security.
AA-1
<PAGE> 5
Certificate of Authentication:
This is one of the Securities of the
series designated therein referred
to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By:
-----------------------------------
Authorized Officer
[Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. The Depository Trust Company (55 Water Street, New York,
New York), a New York corporation ("DTC"), shall act as the Depositary until a
successor shall be appointed by the Company and the Registrar. Unless this
certificate is presented by an authorized representative of DTC to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](2)
- --------------------
(2) This paragraph to be included only if the Security is a Global
Security.
AA-2
<PAGE> 6
[REVERSE OF SECURITY]
CONOCO INC.
[5.90% NOTE DUE 2004] [6.35% NOTE DUE 2009] [6.95% NOTE DUE 2029]
This Security is one of a duly authorized issue of [5.90%
Notes due 2004] [6.35% Notes due 2009] [6.95% Notes due 2029] (the "Securities")
of Conoco Inc., a Delaware corporation (the "Company").
1. Interest. The Company promises to pay interest on the
principal amount of this Security at [5.90] [6.35] [6.95]% per annum from April
20, 1999 until maturity. The Company will pay interest semiannually on April 15
and October 15 of each year (each an "Interest Payment Date"), or if any such
day is not a Business Day, on the next succeeding Business Day. Interest on the
Securities will accrue from the most recent Interest Payment Date on which
interest has been paid or, if no interest has been paid, from April 20, 1999;
provided that if there is no existing Default in the payment of interest, and if
this Security is authenticated between a record date referred to on the face
hereof (each, a "Record Date") and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be October 15, 1999. The
Company shall pay interest on overdue principal and premium (if any) from time
to time at a rate equal to the interest rate then in effect; it shall pay
interest on overdue installments of interest (without regard to any applicable
grace periods) from time to time at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year consisting of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are registered Holders
of Securities at the close of business on the Record Date next preceding the
Interest Payment Date, even if such Securities are canceled after such Record
Date and on or before such Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect principal payments. The Company will pay
the principal of, premium (if any) on and interest on the Securities in money of
the United States of America that at the time of payment is legal tender for
payment of public and private debts. Such amounts shall be payable at the
offices of the Trustee (as defined below), provided that at the option of the
Company, the Company may pay such amounts (1) by wire transfer with respect to
Global Securities or (2) by check payable in such money mailed to a Holder's
registered address with respect to any Securities.
3. Paying Agent and Registrar. Initially, Bank One, N.A. (the
"Trustee"), the trustee under the Indenture, will act as Paying Agent and
Registrar. In addition, as long as the Securities are listed on the Luxembourg
Stock Exchange, the Company shall maintain a Paying Agent and Registrar for the
Securities in Luxembourg, which initially shall be Kredietbank S.A. Luxembourg.
The Company may change any Paying Agent, Registrar, co-registrar or additional
paying agent without notice to any Holder. The Company may act in any such
capacity.
4. Indenture. The Company issued the Securities under an
Indenture dated as of April 15, 1999 (the "Indenture") between the Company and
the Trustee. The terms of the
AA-3
<PAGE> 7
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of execution of the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms and for the
definitions of capitalized terms used but not defined herein. The Securities are
unsecured general obligations of the Company limited to $[1,350,000,000]
[750,000,000] [1,900,000,000] in aggregate principal amount; provided, however,
that the authorized aggregate principal amount of the Securities may be
increased before or after the issuance of any Securities by a Board Resolution
(or action pursuant to a Board Resolution) to such effect. The Indenture
provides for the issuance of other series of debt securities (including the
Securities, the "Debt Securities") thereunder.
5. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. Neither the Company, the Trustee nor the Registrar shall be
required to register the transfer or exchange of (a) any Security selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part or (b) any Security during the period beginning 15
Business Days before the mailing of notice of redemption of Securities to be
redeemed and ending at the close of business on the date of mailing.
6. Persons Deemed Owners. The registered Holder of a Security
shall be treated as its owner for all purposes.
7. Redemption. The Securities are subject to redemption, in
whole or in part, at any time and from time to time, at the option of the
Company, upon not less than 30 nor more than 60 days' prior notice as provided
in the Indenture, at a Redemption Price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed and (ii) the sum of the
present values of the Remaining Scheduled Payments thereon, discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus [12.5] [20] [25] basis points,
plus accrued interest thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity
(computed as of the second Business Day immediately preceding such Redemption
Date) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
AA-4
<PAGE> 8
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
as of the third Business Day preceding such Redemption Date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation (and its successors), Salomon Smith Barney Inc. (and its
successors) and two other nationally recognized investment banking firms that
are Primary Treasury Dealers specified from time to time by the Company;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer (a "Primary Treasury Dealer"), the Company shall
substitute therefor another nationally recognized investment banking firm that
is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer as of 3:30
p.m., New York time, on the third Business Day preceding such Redemption Date.
"Remaining Scheduled Payments" means, with respect to each
Security to be redeemed, the remaining scheduled payments of the principal
thereof and interest thereon that would be due after the related Redemption Date
but for such redemption; provided, however, that, if such Redemption Date is not
an Interest Payment Date with respect to such Security, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such Redemption Date.
8. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Debt Securities of all series affected by such amendment or
supplement (acting as one class), and any existing or past Default or Event of
Default under, or compliance with any provision of, the Indenture may be waived
(other than any continuing Default or Event of Default in the payment of the
principal of, premium (if any) on or interest on the Securities) by the Holders
of at least a majority in principal amount of the then outstanding Debt
Securities of any series or of all series (acting as one class) in accordance
with the terms of the Indenture. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Securities or waive
any provision of either: (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to provide for the assumption of the obligations
AA-5
<PAGE> 9
of the Company under the Indenture to Holders in the case of the merger,
consolidation or sale, lease, conveyance, transfer or other disposition of all
or substantially all of the assets of the Company; (iii) to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to provide for the issuance of bearer Securities (with or without coupons);
(iv) to provide any security for the Securities or to add guarantees of the
Securities; (v) to comply with any requirement in order to effect or maintain
the qualification of the Indenture under the TIA; (vi) to add to the covenants
of the Company for the benefit of the Holders of the Securities, or to surrender
any right or power conferred by the Indenture upon the Company; (vii) to add any
additional Events of Default with respect to all or any series of the Debt
Securities; (viii) to change or eliminate any of the provisions of the
Indenture, provided that no outstanding Security is adversely affected in any
material respect; (ix) to supplement any of the provisions of the Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of the Securities pursuant to the Indenture; or (x) to evidence and
provide for the acceptance of appointment under the Indenture by a successor
Trustee with respect to the Securities and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or facilitate
the administration of the trusts thereunder by more than one Trustee, pursuant
to the requirements of the Indenture.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Company in a notice furnished to Holders in accordance
with the terms of the Indenture.
Without the consent of each Holder affected, the Company may
not (i) reduce the amount of Debt Securities whose Holders must consent to an
amendment, supplement or waiver; (ii) reduce the rate of or change the time for
payment of interest, including default interest, on any Security; (iii) reduce
the principal of or premium on, or change the Stated Maturity of, any Security;
(iv) reduce the premium, if any, payable upon the redemption of any Security or
change the time at which any Security may or shall be redeemed; (v) change the
coin or currency in which any Security or any premium or interest with respect
thereto is payable; (vi) impair the right to institute suit for the enforcement
of any payment of principal of or premium (if any) or interest on any Security,
except as provided in the Indenture; (vii) make any change in the percentage of
principal amount of Debt Securities necessary to waive compliance with certain
provisions of the Indenture or make any change in the provision for
modification; or (viii) waive a continuing Default or Event of Default in the
payment of principal of or premium (if any) or interest on the Securities.
A supplemental indenture that changes or eliminates any
covenant or other provision of the Indenture which has expressly been included
solely for the benefit of one or more particular series of Debt Securities under
the Indenture, or which modifies the rights of the Holders of Debt Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under the Indenture of the Holders of Debt Securities
of any other series.
9. Defaults and Remedies. Events of Default are defined in the
Indenture and generally include: (i) default by the Company for 30 days in
payment of any interest on the
AA-6
<PAGE> 10
Securities; (ii) default by the Company in any payment of principal of or
premium, if any, on the Securities when due and payable; (iii) default by the
Company in compliance with any of its other covenants or agreements in, or
provisions of, the Securities or in the Indenture which shall not have been
remedied within 90 days after written notice by the Trustee or by the holders of
at least 25% in principal amount of the Securities then outstanding (or, in the
event that other Debt Securities issued under the Indenture are also affected by
the default, then 25% in principal amount of all outstanding Debt Securities so
affected); or (iv) certain events involving bankruptcy, insolvency or
reorganization of the Company. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities of the series affected by such default (or, in the case
of an Event of Default described in clause (iii) above, if outstanding Debt
Securities of other series are affected by such Default, then at least 25% in
principal amount of the then outstanding Debt Securities so affected), may
declare the principal of and interest on all the Securities (or such Debt
Securities) to be immediately due and payable, except that in the case of an
Event of Default arising from certain events of bankruptcy, insolvency or
reorganization of the Company, all outstanding Debt Securities under the
Indenture become due and payable immediately without further action or notice.
The amount due and payable upon the acceleration of any Security is equal to
100% of the principal amount thereof plus accrued interest to the date of
payment. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity reasonably
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Securities (or affected Debt Securities) may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal, premium or
interest) if it determines that withholding notice is in their interests. The
Company must furnish an annual compliance certificate to the Trustee.
10. Discharge Prior to Maturity. The Indenture with respect to
the Securities shall be discharged and canceled upon the payment of all of the
Securities and shall be discharged except for certain obligations upon the
irrevocable deposit with the Trustee of funds or U.S.
Government Obligations sufficient for such payment.
11. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
12. No Recourse Against Others. A director, officer, employee,
stockholder, partner or other owner of the Company or the Trustee, as such,
shall not have any liability for any obligations of the Company under the
Securities or for any obligations of the Company or the Trustee under the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release shall be part of the
consideration for the issue of Securities.
13. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
AA-7
<PAGE> 11
14. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of such
numbers as printed on the Securities and reliance may be placed only on the
other identification numbers printed thereon.
15. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUEST MAY BE MADE TO:
CONOCO INC.
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
TELEPHONE: (281) 293-2648
ATTENTION: CAPITAL MARKETS
AA-8
<PAGE> 12
SCHEDULE OF EXCHANGES OF SECURITIES(3)
The following exchanges of a part of this Global Security for other Securities
have been made:
<TABLE>
Principal Amount
Amount of Amount of of this Global Signature of
Decrease in Increase in Security Following Authorized Officer
Principal Amount Principal Amount Such Decrease of Trustee or
Date of Exchange of this Global Security of this Global Security (or Increase) Security Custodian
---------------- ----------------------- ----------------------- ----------------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
- --------------------
(3) This Schedule to be included only if the Security is a Global
Security.
AA-9
<PAGE> 13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
- -------------------------------------------------------------------------------
Date: Your Signature:
-------------------- -------------------------------------
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:
-----------------------------------------------------------
(Participant in a Recognized Signature
Guaranty Medallion Program)
AA-10
<PAGE> 1
[BAKER & BOTTS, L.L.P. LETTERHEAD]
EXHIBIT 8.1
001349.0169
April 15, 1999
Conoco Inc.
600 North Dairy Ashford
Houston, Texas 77079
Gentlemen:
As set forth in the final prospectus supplement dated April
15, 1999 (the "Prospectus Supplement"), which includes a prospectus dated March
24, 1999 that is a part of the Registration Statement on Form S-3 (Registration
No. 333-72291), as amended, 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 "Securities Act"), relating to the
proposed public offering (the "Offering") by the Company of $1,350,000,000
principal amount of 5.90% Notes due 2004, $750,000,000 principal amount of 6.35%
Notes due 2009 and $1,900,000,000 principal amount of 6.95% Notes due 2029
(collectively, the "Notes"), certain legal matters in connection with the
Offering are being passed upon for you by us. At your request, this opinion of
counsel is being furnished to you for filing as Exhibit 8.1 to a current report
of the Company on Form 8-K (the "Form 8-K").
The statements of legal conclusion that appear in the
Prospectus Supplement under the caption "United States Taxation of Non-United
States Persons" are, subject to the assumptions, qualifications and limitations
set forth therein, our opinion.
Pursuant to the provisions of Rule 436(a) of the rules and
regulations of the Commission under the Securities Act, we hereby consent to the
inclusion as aforesaid of our opinion of counsel under the caption "United
States Taxation of Non-United States Persons" in the Prospectus Supplement, to
the references to our Firm under such caption and the caption "Legal Matters" in
the Prospectus Supplement and to the filing of this opinion with the Commission
as an exhibit to the Form 8-K. 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 Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
BAKER & BOTTS, L.L.P.
<PAGE> 1
EXHIBIT 25.1
Registration No.
------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
BANK ONE, N.A.
Not Applicable 31-4148768
(State of Incorporation (I.R.S. Employer
if not a national bank) Identification No.)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of trustee's principal (Zip Code) executive offices)
c/o Bank One Trust Company, NA
100 East Broad Street
Columbus, Ohio 43271-0181
(614) 248-5811
(Name, address and telephone number of agent for service)
Conoco Inc.
(Exact name of obligor 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, TX (Zip Code)
(Address of principal executive office)
Debt Securities
(Title of the Indenture securities)
<PAGE> 2
GENERAL
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY AND QUALIFICATION. (EXHIBITS IDENTIFIED IN PARENTHESES, ON
FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS
EXHIBITS HERETO.)
Exhibit 1 - A copy of the Articles of Association of the trustee as now in
effect.
Exhibit 2 - A copy of the Certificate of Authority of the trustee to commence
business.
Exhibit 3 - A copy of the Authorization of the trustee to exercise corporate
trust powers, see Exhibit 3 to Form T-1, filed in connection with
Form S-3 relating to Wheeling-Pittsburgh Corporation 9 3/8% Senior
Notes due 2003, Securities and Exchange Commission File No.
33-50709.
Exhibit 4 - A copy of the Bylaws of the trustee as now in effect.
<PAGE> 3
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Exhibit 7 - Report of Condition of the trustee as of the close of business on
December 31, 1998, published pursuant to the requirements of the
Comptroller of the Company, see attached.
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
Items 3 through 15 are not answered pursuant to General Instruction B which
requires responses to Item 1, 2 and 16 only, if the obligor is not in default.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, Bank One, NA, a national banking association organized
under the National Banking Act, has duly caused this statement of eligibility
and qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in Columbus, Ohio, on April 15, 1999.
Bank One, NA
By: /s/ DAVID B. KNOX
------------------------
Authorized Signer
<PAGE> 4
Exhibit 1
BANK ONE, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
FIRST. The title of this Association shall be Bank One, National
Association.
SECOND. The main office of the Association shall be in Columbus, County of
Franklin, State of Ohio. The general business of the Association shall be
conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five Directors, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time-to-time by resolution of the shareholders at any annual or special meeting
thereof, provided, however, that the Board of Directors, by resolution of a
majority thereof, shall be authorized to increase the number of its members by
not more than two between regular meetings of the shareholders. Each Director,
during the full term of his directorship, shall own, as qualifying shares, the
minimum number of shares of either this Association or of its parent bank
holding company in accordance with the provisions of applicable law. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
<PAGE> 5
FOURTH. The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office of this Association or such other
place as the Board of Directors may designate, on the day of each year specified
therefor in the Bylaws, but if no election is held on that day, it may be held
on any subsequent business day according to the provisions of law; and all
elections shall be held according to such lawful regulations as may be
prescribed by the Board of Directors.
FIFTH. The authorized amount of capital stock of this Association shall be
12,704,315 shares of common stock of the par value of Ten Dollars ($10) each;
but said capital stock may be increased or decreased from time-to-time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the
Association shall have the preemptive or preferential right of subscription to
any share of any class of stock of this Association, whether now or hereafter
authorized or to any obligations convertible into stock of this Association,
issued or sold, nor any right of subscription to any thereof other than such, if
any, as the Board of Directors, in its discretion, may from time-to-time
determine and at such price as the Board of Directors may from time-to-time fix.
This Association, at any time and from time-to-time, may authorize
and issue debt obligations, whether or not subordinated, without the approval of
the shareholders.
SIXTH. The Board of Directors shall appoint one of its members President
of the Association, who shall be Chairman of the Board, unless the Board
appoints another director to be the Chairman. The Board of Directors shall have
the power to appoint one or more Vice Presidents and to appoint a Secretary and
such other officers and employees as may be required to transact the business of
this Association.
<PAGE> 6
The Board of Directors shall have the power to define the duties
of the officers and employees of this Association; to fix the salaries to be
paid to them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of this
Association shall be made; to manage and administer the business and affairs of
this Association; to make all Bylaws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of the City of
Columbus, Ohio, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of this Association
to any other location, without the approval of the shareholders but subject to
the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time, place
and purpose of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least ten days prior to
the date of such meeting to each shareholder of record at his address as shown
upon the books of this Association.
<PAGE> 7
TENTH. Every person who is or was a Director, officer or employee of the
Association or of any other corporation which he served as a Director, officer
or employee at the request of the Association as part of his regularly assigned
duties may be indemnified by the Association in accordance with the provisions
of this paragraph against all liability (including, without limitation,
judgments, fines, penalties and settlements) and all reasonable expenses
(including, without limitation, attorneys' fees and investigative expenses) that
may be incurred or paid by him in connection with any claim, action, suit or
proceeding, whether civil, criminal or administrative (all referred to hereafter
in this paragraphs as "Claims") or in connection with any appeal relating
thereto in which he may become involved as a party or otherwise or with which he
may be threatened by reason of his being or having been a Director, officer or
employee of the Association or such other corporation, or by reason of any
action taken or omitted by him in his capacity as such Director, officer or
employee, whether or not he continues to be such at the time such liability or
expenses are incurred, provided that nothing contained in this paragraph shall
be construed to permit indemnification of any such person who is adjudged guilty
of, or liable for, willful misconduct, gross neglect of duty or criminal acts,
unless, at the time such indemnification is sought, such indemnification in such
instance is permissible under applicable law and regulations, including
published rulings of the Comptroller of the Currency or other appropriate
supervisory or regulatory authority, and provided further that there shall be no
indemnification of directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association. Every person who may be indemnified under the provisions of
this paragraph and who has been wholly successful on the merits with respect to
any Claim shall be entitled to indemnification as of right. Except as provided
in the preceding sentence, any indemnification under this paragraph shall be at
the sole discretion of the Board of Directors and shall be made only if the
Board of Directors or the Executive Committee acting by a quorum consisting of
<PAGE> 8
Directors who are not parties to such Claim shall find or if independent legal
counsel (who may be the regular counsel of the Association) selected by the
Board of Directors or Executive Committee whether or not a disinterested quorum
exists shall render their opinion that in view of all of the circumstances then
surrounding the Claim, such indemnification is equitable and in the best
interests of the Association. Among the circumstances to be taken into
consideration in arriving at such a finding or opinion is the existence or
non-existence of a contract of insurance or indemnity under which the
Association would be wholly or partially reimbursed for such indemnification,
but the existence or non-existence of such insurance is not the sole
circumstance to be considered nor shall it be wholly determinative of whether
such indemnification shall be made. In addition to such finding or opinion, no
indemnification under this paragraph shall be made unless the Board of Directors
or the Executive Committee acting by a quorum consisting of Directors who are
not parties to such Claim shall find or if independent legal counsel (who may be
the regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that the Director, officer or employee acted in good faith in what
he reasonably believed to be the best interests of the Association or such other
corporation and further in the case of any criminal action or proceeding, that
the Director, officer or employee reasonably believed his conduct to be lawful.
Determination of any Claim by judgment adverse to a Director, officer or
employee by settlement with or without Court approval or conviction upon a plea
of guilty or of nolo contendere or its equivalent shall not create a presumption
that a Director, officer or employee failed to meet the standards of conduct set
forth in this paragraph. Expenses incurred with respect to any Claim may be
advanced by the Association prior to the final disposition thereof upon receipt
of an undertaking satisfactory to the Association by or on behalf of the
recipient to repay such amount unless it is ultimately determined that he is
entitled to indemnification under this paragraph. The rights of indemnification
provided in this paragraph shall be in addition to any rights to which any
Director, officer or employee may otherwise be entitled by contract or as a
matter of law.
<PAGE> 9
Every person who shall act as a Director, officer or employee of this
Association shall be conclusively presumed to be doing so in reliance upon the
right of indemnification provided for in this paragraph.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount.
Articles of Association of Bank One, National Association effective with the
consolidation of banks in Ohio.
<PAGE> 10
EXHIBIT 2
[LOGO]
- --------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- --------------------------------------------------------------------------------
Washington, D.C. 20219
CERTIFICATE
I, John D. Hawke, Jr. Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One, National Association," Columbus, Ohio, (Charter No. 7621) is a
National Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of Washington
and District of Columbia, this 24th day of
March, 1999.
/s/ JOHN D. HAWKE, JR.
--------------------------------
Comptroller of the Currency
[SEAL]
<PAGE> 11
Exhibit 4
BY-LAWS
OF
BANK ONE, NATIONAL ASSOCIATION
ARTICLE I
MEETING OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the Shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main banking house,
or other convenient place duly authorized by the Board of Directors, on the
third Monday of January of each year, or on the next succeeding banking day, if
the day fixed falls on a legal holiday. If from any cause, an election of
directors is not made on the day fixed for the regular meeting of shareholders
or, in the event of a legal holiday, on the next succeeding banking day, the
Board of Directors shall order the election to be held on some subsequent day,
as soon thereafter as practicable, according to the provisions of law; and
notice thereof shall be given in the manner herein provided for the annual
meeting. Notice of such annual meeting shall be given by or under the direction
of the Secretary or such other officer as may be designated by the Chief
Executive Officer by first-class mail, postage prepaid, to all shareholders of
record of the Bank at their respective addresses as shown upon the books of the
Bank mailed not less than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of this
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
this Bank. The notice of any special meeting of the shareholders called by the
Board of Directors, stating the time, place and purpose of the meeting, shall be
given by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of
<PAGE> 12
record of the Bank at their respective addresses as shown upon the books of the
Bank, mailed not less than ten days prior to the date fixed for such meeting.
Any special meeting of shareholders shall be conducted and its proceedings
recorded in the manner prescribed in these Bylaws for annual meetings of
shareholders.
SECTION 1.03. SECRETARY OF SHAREHOLDERS' MEETING. The Board of Directors may
designate a person to be the Secretary of the meetings of shareholders. In the
absence of a presiding officer, as designated in these Bylaws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a Secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as Secretary
of the meeting.
The Secretary of the meetings of shareholders shall cause the returns made
by the judges and election and other proceedings to be recorded in the minute
book of the Bank. The presiding officer shall notify the directors-elect of
their election and to meet forthwith for the organization of the new board.
The minutes of the meeting shall be signed by the presiding officer and
the Secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the shareholders' meeting of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election at
the request of the chairman of the
<PAGE> 13
meeting, shall act as tellers of any other vote by ballot taken at such meeting,
and shall notify, in writing over their signatures, the secretary of the Board
of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in his name for as many persons
as there are Directors to be elected, or to cumulate such shares as provided by
Federal Law. In deciding all other questions at meetings of shareholders, each
shareholder shall be entitled to one vote on each share of stock of record in
his name. Shareholders may vote by proxy duly authorized in writing. All proxies
used at the annual meeting shall be secured for that meeting only, or any
adjournment thereof, and shall be dated, and if not dated by the shareholder,
shall be dated as of the date of receipt thereof. No officer or employee of this
Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
<PAGE> 14
ARTICLE II
DIRECTORS
SECTION 2.01. MANAGEMENT OF THE BANK. The business of the Bank shall be managed
by the Board of Directors. Each director of the Bank shall be the beneficial
owner of a substantial number of shares of BANC ONE CORPORATION and shall be
employed either in the position of Chief Executive Officer or active leadership
within his or her business, professional or community interest which shall be
located within the geographic area in which the Bank operates, or as an
executive officer of the Bank. A director shall not be eligible for nomination
and re-election as a director of the Bank if such person's executive or
leadership position within his or her business, professional or community
interests which qualifies such person as a director of Bank terminates. The age
of 70 is the mandatory retirement age as a director of the Bank. When a person's
eligibility as director of the Bank terminates, whether because of change in
share ownership, position, residency or age, within 30 days after such
termination, such person shall submit his resignation as a director to be
effective at the pleasure of the Board provided, however, that in no event shall
such person be nominated or elected as a director. Provided, however, following
a person's retirement or resignation as a director because of the age
limitations herein set forth with respect to election or re-election as a
director, such person may, in special or unusual circumstances, and at the
discretion of the Board, be elected by the directors as a Director Emeritus of
the Bank for a limited period of time. A Director Emeritus shall have the right
to participate in board meetings but shall be without the power to vote and
shall be subject to re-election by the Board at its organizational meeting
following the Bank's annual meeting of shareholders.
SECTION 2.02. QUALIFICATIONS. Each director shall have the qualification
prescribed by law. No person elected a director may exercise any of the powers
of his office until he has taken the oath of such office.
<PAGE> 15
SECTION 2.03. TERM OF OFFICE/VACANCIES. A director shall hold office until the
annual meeting for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to his prior death,
resignation, or removal from office. Whenever any vacancy shall occur among the
directors, the remaining directors shall constitute the directors of the Bank
until such vacancy is filled by the remaining directors, and any director so
appointed shall hold office for the unexpired term of his or her successor.
Notwithstanding the foregoing, each director shall hold office and serve at the
pleasure of the Board.
SECTION 2.04. ORGANIZATION MEETING. The directors elected by the share- holders
shall meet for organization of the new board at the time fixed by the presiding
officer of the annual meeting. If at the time fixed for such meeting there is no
quorum present, the Directors in attendance may adjourn from time to time until
a quorum is obtained. A majority of the number of Directors elected by the
shareholders shall constitute a quorum for the transaction of business.
SECTION 2.05. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held on the third Monday of January, April, July and October, which
meetings will be held at 3:30 p.m. When any regular meeting of the Board falls
on a holiday, the meeting shall be held on such other day as the Board may
previously designate or should the Board fail to so designate, on such day as
the Chairman of the Board or President may fix. Whenever a quorum is not
present, the directors in attendance shall adjourn the meeting to a time not
later than the date fixed by the Bylaws for the next succeeding regular meeting
of the Board.
SECTION 2.06. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board or President, or at the request
of two or more Directors. Any special meeting may be held at such place in
Franklin County, Ohio, and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which special meeting is to be held, which notice may be
waived in writing.
<PAGE> 16
The presence of a Director at any meeting of the Board shall be deemed a waiver
of notice thereof by him. Whenever a quorum is not present the Directors in
attendance shall adjourn the special meeting from day to day until a quorum is
obtained.
SECTION 2.07. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.08. COMPENSATION. Each member of the Board of Directors shall receive
such fees for, and transportation expenses incident to, attendance at Board and
Board Committee Meetings and such fees for service as a Director irrespective of
meeting attendance as from time to time are fixed by resolution of the Board;
provided, however, that payment hereunder shall not be made to a Director for
meetings attended and/or Board service which are not for the Bank's sole benefit
and which are concurrent and duplicative with meetings attended or board service
for an affiliate of the Bank for which the Director receives payment; and
provided further, that payment hereunder shall not be made in the case of any
Director in the regular employment of the Bank or of one of its affiliates.
SECTION 2.09. EXECUTIVE COMMITTEE. There shall be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all powers of the Board that may
lawfully be delegated. The Executive Committee shall also exercise the powers of
the Board of Directors in accordance with the Provisions of the "Employees
Retirement Plan" and the "Agreement and Declaration of Trust" as the same now
<PAGE> 17
exist or may be amended hereafter. The Executive Committee shall consist of not
fewer than four board members, including the Chairman of the Board and President
of the Bank, one of whom, as hereinafter required by these Bylaws, shall be the
Chief Executive Officer. The other members of the Committee shall be appointed
by the Chairman of the Board or by the President, with the approval of the Board
and shall continue as members of the Executive Committee until their successors
are appointed, provided, however, that any member of the Executive Committee may
be removed by the Board upon a majority vote thereof at any regular or special
meeting of the Board. The Chairman or President shall fill any vacancy in the
Committee by the appointment of another Director, subject to the approval of the
Board of Directors. The regular meetings of the Executive Committee shall be
held on a regular basis as scheduled by the Board of Directors. Special meetings
of the Executive Committee shall be held at the call of the Chairman or
President or any two members thereof at such time or times as may be designated.
In the event of the absence of any member or members of the Committee, the
presiding member may appoint a member or members of the Board to fill the place
or places of such absent member or members to serve during such absence. Not
fewer than three members of the Committee must be present at any meeting of the
Executive Committee to constitute a quorum, provided, however that with regard
to any matters on which the Executive Committee shall vote, a majority of the
Committee members present at the meeting at which a vote is to be taken shall
not be officers of the Bank and, provided further, that if, at any meeting at
which the Chairman of the Board and President are both present, Committee
members who are not officers are not in the majority, then the Chairman of the
Board or President, which ever of such officers is not also the Chief Executive
Officer, shall not be eligible to vote at such meeting and shall not be
recognized for purposes of determining if a quorum is present at such meeting.
When neither the Chairman of the Board nor President are present, the Committee
shall appoint a presiding officer. The Executive Committee shall keep a record
of its proceedings and report its proceedings and the action taken by it to the
Board of Directors.
<PAGE> 18
SECTION 2.10 COMMUNITY REINVESTMENT ACT AND COMPLIANCE POLICY COMMITTEE. There
shall be a standing committee of the Board of Directors known as the Community
Reinvestment Act and Compliance Policy Committee the duties of which shall be,
at least once in each calendar year, to review, develop and recommend policies
and programs related to the Bank's Community Reinvestment Act Compliance and
regulatory compliance with all existing statutes, rules and regulations
affecting the Bank under state and federal law. Such Committee shall provide and
promptly make a full report of such review of current Bank policies with regard
to Community Reinvestment Act and regulatory compliance in writing to the Board,
with recommendations, if any, which may be necessary to correct any
unsatisfactory conditions. Such Committee may, in its discretion, in fulfilling
its duties, utilize the Community Reinvestment Act officers of the Bank, Banc
One Ohio Corporation and Banc One Corporation and may engage outside Community
Reinvestment Act experts, as approved by the Board, to review, develop and
recommend policies and programs as herein required. The Community Reinvestment
Act and regulatory compliance policies and procedures established and the
recommendations made shall be consistent with, and shall supplement, the
Community Reinvestment Act and regulatory compliance programs, policies and
procedures of Banc One Corporation and Banc One Ohio Corporation. The Community
Reinvestment Act and Compliance Policy Committee shall consist of not fewer than
four board members, one of whom shall be the Chief Executive Officer and a
majority of whom are not officers of the Bank. Not fewer than three members of
the Committee, a majority of whom are not officers of the Bank, must be present
to constitute a quorum. The Chairman of the Board or President of the Bank,
whichever is not the Chief Executive Officer, shall be an ex officio member of
the Community Reinvestment Act and Compliance Policy Committee. The Community
Reinvestment Act and Compliance Policy Committee, whose chairman shall be
appointed by the Board, shall keep a record of its proceedings and report its
proceedings and the action taken by it to the Board of Directors.
<PAGE> 19
SECTION 2.11. TRUST COMMITTEES. There shall be two standing Committees known as
the Trust Management Committee and the Trust Examination Committee appointed as
hereinafter provided.
SECTION 2.12. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
<PAGE> 20
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The officers of the Bank shall include a President, Secretary and
Security Officer and may include a Chairman of the Board, one or
more Vice Chairmen, one or more Vice Presidents (which may include
one or more Executive Vice Presidents and/or Senior Vice Presidents)
and one or more Assistant Secretaries, all of whom shall be elected
by the Board. All other officers may be elected by the Board or
appointed in writing by the Chief Executive Officer. The salaries of
all officers elected by the Board shall be fixed by the Board. The
Board from time-to-time shall designate the President or Chairman of
the Board to serve as the Bank's Chief Executive Officer.
(b) The Chairman of the Board, if any, and the President shall be
elected by the Board from their own number. The President and
Chairman of the Board shall be re-elected by the Board annually at
the organizational meeting of the Board of Directors following the
Annual Meeting of Shareholders. Such officers as the Board shall
elect from their own number shall hold office from the date of their
election as officers until the organization meeting of the Board of
Directors following the next Annual Meeting of Shareholders,
provided, however, that such officers may be relieved of their
duties at any time by action of the Board in which event all the
powers incident to their office shall immediately terminate.
(c) Except as provided in the case of the elected officers who are
members of the Board, all officers, whether elected or appointed,
shall hold office at the pleasure of the Board. Except as otherwise
limited by law or these Bylaws, the Board assigns to Chief Executive
Officer and/or his
<PAGE> 21
designees the authority to appoint and dismiss any elected or
appointed officer or other member of the Bank's management staff and
other employees of the Bank, as the person in charge of and
responsible for any branch office, department, section, operation,
function, assignment or duty in the Bank.
(d) The management staff of the Bank shall include officers elected by
the Board, officers appointed by the Chief Executive Officer, and
such other persons in the employment of the Bank who, pursuant to
written appointment and authorization by a duly authorized officer
of the Bank, perform management functions and have management
responsibilities. Any two or more offices may be held by the same
person except that no person shall hold the office of Chairman of
the Board and/or President and at the same time also hold the office
of Secretary.
(e) The Chief Executive Officer of the Bank and any other officer of the
Bank, to the extent that such officer is authorized in writing by
the Chief Executive Officer, may appoint persons other than officers
who are in the employment of the Bank to serve in management
positions and in connection therewith, the appointing officer may
assign such title, salary, responsibilities and functions as are
deemed appropriate by him, provided, however, that nothing contained
herein shall be construed as placing any limitation on the authority
of the Chief Executive Officer as provided in this and other
sections of these Bylaws.
SECTION 3.02. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the Bank
shall have general and active management of the business of the Bank and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. Except as otherwise prescribed or limited by these Bylaws, the Chief
Executive Officer shall have full right, authority and power to control all
personnel, including elected and appointed officers, of the Bank, to employ or
direct the
<PAGE> 22
employment of such personnel and officers as he may deem necessary, including
the fixing of salaries and the dismissal of them at pleasure, and to define and
prescribe the duties and responsibility of all Officers of the Bank, subject to
such further limitations and directions as he may from time-to-time deem proper.
The Chief Executive Officer shall perform all duties incident to his office and
such other and further duties, as may, from time-to-time, be required of him by
the Board of Directors or the shareholders. The specification of authority in
these Bylaws wherever and to whomever granted shall not be construed to limit in
any manner the general powers of delegation granted to the Chief Executive
Officer in conducting the business of the Bank. The Chief Executive Officer or,
in his absence, the Chairman of the Board or President of the Bank, as
designated by the Chief Executive Officer, shall preside at all meetings of
shareholders and meetings of the Board. In the absence of the Chief Executive
Officer, such officer as is designated by the Chief Executive Officer shall be
vested with all the powers and perform all the duties of the Chief Executive
Officer as defined by these Bylaws. When designating an officer to serve in his
absence, the Chief Executive Officer shall select an officer who is a member of
the Board of Directors whenever such officer is available.
SECTION 3.03. POWERS OF OFFICERS AND MANAGEMENT STAFF. The Chief Executive
Officer, the Chairman of the Board, the President, and those officers so
designated and authorized by the Chief Executive Officer are authorized for an
on behalf of the Bank, and to the extent permitted by law, to make loans and
discounts; to purchase or acquire drafts, notes, stock, bonds, and other
securities for investment of funds held by the Bank; to execute and purchase
acceptances; to appoint, empower and direct all necessary agents and attorneys;
to sign and give any notice required to be given; to demand payment and/or to
declare due for any default any debt or obligation due or payable to the Bank
upon demand or authorized to be declared due; to foreclose any mortgages, to
exercise any option, privilege or election to forfeit, terminate, extend or
renew any lease; to authorize and direct any proceedings for the collection of
any money or for the enforcement
<PAGE> 23
of any right or obligation; to adjust, settle and compromise all claims of every
kind and description in favor of or against the Bank, and to give receipts,
releases and discharges therefor; to borrow money and in connection therewith to
make, execute and deliver notes, bonds or other evidences of indebtedness; to
pledge or hypothecate any securities or any stocks, bonds, notes or any
property real or personal held or owned by the Bank, or to rediscount any notes
or other obligations held or owned by the Bank, to employ or direct the
employment of all personnel, including elected and appointed officers, and the
dismissal of them at pleasure, and in furtherance of and in addition to the
powers herein above set forth to do all such acts and to take all such
proceedings as in his judgment are necessary and incidental to the operation of
the Bank.
Other persons in the employment of the Bank, including but not limited to
officers and other members of the management staff, may be authorized by the
Chief Executive Officer, or by an officer so designated and authorized by the
Chief Executive Officer, to perform the powers set forth above, subject,
however, to such limitations and conditions as are set forth in the
authorization given to such persons.
SECTION 3.04. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Chief Executive
Officer or the Board of Directors as Assistant Secretary to perform the duties
of the Secretary.
SECTION 3.05. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman of
the Board, President, any officer being a member of the Bank's management staff
who is also a person in charge of and responsible for any department within the
Bank and any other officer to the extent such officer is so designated and
authorized by the Chief Executive Officer, the Chairman of the
<PAGE> 24
Board, the President, or any other officer who is a member of the Bank's
management staff who is in charge of and responsible for any department within
the Bank, are hereby authorized on behalf of the Bank to sell, assign, lease,
mortgage, transfer, deliver and convey any real or personal property now or
hereafter owned by or standing in the name of the Bank or its nominee, or held
by this Bank as collateral security, and to execute and deliver such deeds,
contracts, leases, assignments, bills of sale, transfers or other papers or
documents as may be appropriate in the circumstances; to execute any loan
agreement, security agreement, commitment letters and financing statements and
other documents on behalf of the Bank as a lender; to execute purchase orders,
documents and agreements entered into by the Bank in the ordinary course of
business, relating to purchase, sale, exchange or lease of services, tangible
personal property, materials and equipment for the use of the Bank; to execute
powers of attorney to perform specific or general functions in the name of or on
behalf of the Bank; to execute promissory notes or other instruments evidencing
debt of the Bank; to execute instruments pledging or releasing securities for
public funds, documents submitting public fund bids on behalf of the Bank and
public fund contracts; to purchase and acquire any real or personal property
including loan portfolios and to execute and deliver such agreements, contracts
or other papers or documents as may be appropriate in the circumstances; to
execute any indemnity and fidelity bonds, proxies or other papers or documents
of like or different character necessary, desirable or incidental to the conduct
of its banking business; to execute and deliver settlement agreements or other
papers or documents as may be appropriate in connection with a dismissal
authorized by Section 3.01(c) of these Bylaws; to execute agreements,
instruments, documents, contracts or other papers of like or difference
character necessary, desirable or incidental to the conduct of its banking
business; and to execute and deliver partial releases from and discharges or
assignments of mortgages, financing statements and assignments or surrender of
insurance policies, now or hereafter held by this Bank.
The Chief Executive Officer, Chairman of the Board, President, any officer
being a member of the Bank's management staff who is also a person in charge of
and responsible for any department within the Bank, and any other officer of the
Bank so designated and authorized by the Chief Executive Officer, Chairman of
the
<PAGE> 25
Board, President or any officer who is a member of the Bank's management staff
who is in charge of and responsible for any department within the Bank are
authorized for and on behalf of the Bank to sign and issue checks, drafts, and
certificates of deposit; to sign and endorse bills of exchange, to sign and
countersign foreign and domestic letters of credit, to receive and receipt for
payments of principal, interest, dividends, rents, fees and payments of every
kind and description paid to the Bank, to sign receipts for property acquired by
or entrusted to the Bank, to guarantee the genuineness of signatures on
assignments of stocks, bonds or other securities, to sign certifications of
checks, to endorse and deliver checks, drafts, warrants, bills, notes,
certificates of deposit and acceptances in all business transactions of the
Bank.
Other persons in the employment of the Bank and of its subsidiaries,
including but not limited to officers and other members of the management staff,
may be authorized by the Chief Executive Officer, Chairman of the Board,
President or by an officer so designated by the Chief Executive Officer,
Chairman of the Board, or President to perform the acts and to execute the
documents set forth above, subject, however, to such limitations and conditions
as are contained in the authorization given to such person.
SECTION 3.06. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
<PAGE> 26
ARTICLE IV
TRUST DEPARTMENT
SECTION 4.01. TRUST DEPARTMENT. Pursuant to the fiduciary powers granted to this
Bank under the provisions of Federal Law and Regulations of the Comptroller of
the Currency, there shall be maintained a separate Trust Department of the Bank,
which shall be operated in the manner specified herein.
SECTION 4.02. TRUST MANAGEMENT COMMITTEE. There shall be a standing Committee
known as the Trust Management Committee, consisting of at least five members, a
majority of whom shall not be officers of the Bank. The Committee shall consist
of the Chairman of the Board who shall be Chairman of the Committee, the
President, and at least three other Directors appointed by the Board of
Directors and who shall continue as members of the Committee until their
successors are appointed. Any vacancy in the Trust Management Committee may be
filled by the Board at any regular or special meeting. In the event of the
absence of any member or members, such Committee may, in its discretion, appoint
members of the Board to fill the place of such absent members to serve during
such absence. Three members of the Committee shall constitute a quorum. Any
member of the Committee may be removed by the Board by a majority vote at any
regular or special meeting of the Board. The Committee shall meet at such times
as it may determine or at the call of the Chairman, or President or any two
members thereof.
The Trust Management Committee, under the general direction of the Board
of Directors, shall supervise the policy of the Trust Department which shall be
formulated and executed in accordance with Law, Regulations of the Comptroller
of the Currency, and sound fiduciary principles.
<PAGE> 27
SECTION 4.03. TRUST EXAMINATION COMMITTEE. There shall be a standing Commit- tee
known as the Trust Examination Committee, consisting of three directors
appointed by the Board of Directors and who shall continue as members of the
committee until their successors are appointed. Such members shall not be active
officers of the Bank. Two members of the Committee shall constitute a quorum.
Any member of the Committee may be removed by the Board by a majority vote at
any regular or special meeting of the Board. The Committee shall meet at such
times as it may determine or at the call of two members thereof.
This Committee shall, at least once during each calendar year and within
fifteen months of the last such audit, or at such other time(s) as may be
required by Regulations of the Comptroller of the Currency, make suitable audits
of the Trust Department or cause suitable audits to be made by auditors
responsible only to the Board of Directors, and at such time shall ascertain
whether the Department has been administered in accordance with Law, Regulations
of the Comptroller of the Currency and sound fiduciary principles.
The Committee shall promptly make a full report of such audits in writing
to the Board of Directors of the Bank, together with a recommendation as to what
action, if any, may be necessary to correct any unsatisfactory condition. A
report of the audits together with the action taken thereon shall be noted in
the Minutes of the Board of Directors and such report shall be a part of the
records of this Bank.
SECTION 4.04. MANAGEMENT. The Trust Department shall be under the management and
supervision of an officer of the Bank or of the trust affiliate of the Bank
designated by and subject to the advice and direction of the Chief Executive
Officer. Such officer having supervisory responsibility over the Trust
Department shall do or cause to be done all things necessary or proper in
carrying on the business of the Trust Department in accordance with provisions
of law and applicable regulations.
<PAGE> 28
SECTION 4.05. HOLDING OF PROPERTY. Property held by the Trust Department may be
carried in the name of the Bank in its fiduciary capacity, in the name of Bank,
or in the name of a nominee or nominees.
SECTION 4.06. TRUST INVESTMENTS. Funds held by the Bank in a fiduciary capacity
awaiting investment or distribution shall not be held uninvested or
undistributed any longer than is reasonable for the proper management of the
account and shall be invested in accordance with the instrument establishing a
fiduciary relationship and local law. Where such instrument does not specify the
character or class of investments to be made and does not vest in the Bank any
discretion in the matter, funds held pursuant to such instrument shall be
invested in any investment which corporate fiduciaries may invest under local
law.
The investments of each account in the Trust Department shall be kept
separate from the assets of the Bank, and shall be placed in the joint custody
or control of not less than two of the officers or employees of the Bank or of
the trust affiliate of the Bank designated for the purpose by the Trust
Management Committee.
SECTION 4.07. EXECUTION OF DOCUMENTS. The Chief Executive Officer, Chairman of
the Board, President, any officer of the Trust Department, and such other
officers of the trust affiliate of the Bank as are specifically designated and
authorized by the Chief Executive Officer, the President, or the officer in
charge of the Trust Department, are hereby authorized, on behalf of this Bank,
to sell, assign, lease, mortgage, transfer, deliver and convey any real property
or personal property and to purchase and acquire any real or personal property
and to execute and deliver such agreements, contracts, or other papers and
documents as may be appropriate in the circumstances for property now or
hereafter owned by or standing in the name of this Bank, or its nominee, in any
fiduciary capacity, or in the name of any principal for whom this Bank may now
or hereafter be acting under a power of attorney, or as agent and to execute and
deliver partial releases from
<PAGE> 29
any discharges or assignments or mortgages and assignments or surrender of
insurance policies, to execute and deliver deeds, contracts, leases,
assignments, bills of sale, transfers or such other papers or documents as may
be appropriate in the circumstances for property now or hereafter held by this
Bank in any fiduciary capacity or owned by any principal for whom this Bank may
now or hereafter be acting under a power of attorney or as agent; to execute and
deliver settlement agreements or other papers or documents as may be appropriate
in connection with a dismissal authorized by Section 3.01(c) of these Bylaws;
provided that the signature of any such person shall be attested in each case by
any officer of the Trust Department or by any other person who is specifically
authorized by the Chief Executive Officer, the President or the officer in
charge of the Trust Department.
The Chief Executive Officer, Chairman of the Board, President, any officer
of the Trust Department and such other officers of the trust affiliate of the
Bank as are specifically designated and authorized by the Chief Executive
Officer, the President, or the officer in charge of the Trust Department, or any
other person or corporation as is specifically authorized by the Chief Executive
Officer, the President or the officer in charge of the Trust Department, are
hereby authorized on behalf of this Bank, to sign any and all pleadings and
papers in probate and other court proceedings, to execute any indemnity and
fidelity bonds, trust agreements, proxies or other papers or documents of like
or different character necessary, desirable or incidental to the appointment of
the Bank in any fiduciary capacity and the conduct of its business in any
fiduciary capacity; also to foreclose any mortgage, to execute and deliver
receipts for payments of principal, interest, dividends, rents, fees and
payments of every kind and description paid to the Bank; to sign receipts for
property acquired or entrusted to the Bank; also to sign stock or bond
certificates on behalf of this Bank in any fiduciary capacity and on behalf of
this Bank as transfer agent or registrar; to guarantee the genuineness of
signatures on assignments of stocks, bonds or other securities, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as
<PAGE> 30
Trustee. Any such person, as well as such other persons as are specifically
authorized by the Chief Executive Officer or the officer in charge of the Trust
Department, may sign checks, drafts and orders for the payment of money executed
by the Trust Department in the course of its business.
SECTION 4.08. VOTING OF STOCK. The Chairman of the Board, President, any officer
of the Trust Department, any officer of the trust affiliate of the Bank and such
other persons as may be specifically authorized by Resolution of the Trust
Management Committee or the Board of Directors, may vote shares of stock of a
corporation of record on the books of the issuing company in the name of the
Bank or in the name of the Bank as fiduciary, or may grant proxies for the
voting of such stock of the granting if same is permitted by the instrument
under which the Bank is acting in a fiduciary capacity, or by the law applicable
to such fiduciary account. In the case of shares of stock which are held by a
nominee of the Bank, such shares may be voted by such person(s) authorized by
such nominee.
<PAGE> 31
ARTICLE V
STOCKS AND STOCK CERTIFICATES
SECTION 5.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the President, or a Vice President (which signature may be engraved,
printed or impressed), and shall be signed manually by the Secretary, or any
other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its fact
that the stock represented thereby is transferable only upon the books of the
Bank properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 5.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of any affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the President, or a Vice President. The Board of Directors, or the Chief
Executive Officer, may authorize the issuance of a new certificate therefor
without the furnishing of indemnity. Stock Transfer Books, in which all
transfers of stock shall be recorded, shall be provided.
<PAGE> 32
The stock transfer books may be closed for a reasonable period and under
such conditions as the Board of Directors may at any time determine for any
meeting of shareholders, the payment of dividends or any other lawful purpose.
In lieu of closing the transfer books, the Board may, in its discretion, fix a
record date and hour constituting a reasonable period prior to the day
designated for the holding of any meeting of the shareholders or the day
appointed for the payment of any dividend or for any other purpose at the time
as of which shareholders entitled to notice of and to vote at any such meeting
or to receive such dividend or to be treated as shareholders for such other
purpose shall be determined, and only shareholders of record at such time shall
be entitled to notice of or to vote at such meeting or to receive such dividends
or to be treated as shareholders for such other purpose.
<PAGE> 33
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. SEAL. The impression made below is an impression of the seal
adopted by the Board of Directors of Bank One, National Association. The Seal
may be affixed by any officer of the Bank to any document executed by an
authorized officer on behalf of the Bank, and any officer may certify any act,
proceedings, record, instrument or authority of the Bank.
SECTION 6.02. BANKING HOURS. Subject to ratification by the Executive Committee,
the Bank and each of its Branches shall be open for business on such days and
during such hours as the Chief Executive Officer of the Bank shall, from time to
time, prescribe.
SECTION 6.03. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of the judges of elections, the Bylaws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute book of the Bank. The minutes
of each such meeting shall be signed by the presiding officer and attested by
the secretary of the meetings.
SECTION 6.04. AMENDMENT OF BY-LAWS. These Bylaws may be amended by vote of a
majority of the Directors.
Bylaws of Bank One, National Association effective with merger of Ohio Banks.
<PAGE> 34
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
CONSENT
The undersigned, designated to act as Trustee under the Indenture for Conoco
Inc. described in the attached Statement of Eligibility and Qualification, does
hereby consent that reports of examinations by Federal, State, Territorial, or
District Authorities may be furnished by such authorities to the Commission upon
the request of the Commission.
This Consent is given pursuant to the provision of Section 321(b) of the Trust
Indenture Act of 1939, as amended.
Bank One, NA
Dated: April 15, 1999 By: /s/ DAVID B. KNOX
----------------------
Authorized Signer
<PAGE> 35
Board of Governors of the Federal Reserve System
OMB Number 7100-0036
Federal Deposit Insurance Corporation
OMB Number 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1447-0087
Expires March 31, 2001
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
- -------------------------------------------------------------------------------
Please refer to page 1, [ 1 ]
Table of Contents, for
the required disclosure
of estimated burden.
- -------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES - FFIEC 031
Report at the close of business December 31, 1998
This report is required by law: 12 U.S.C. Section 324 (State
member banks); 12 U.S.C. Section 1817 (State nonmember banks):
and 12 U.S.C. Section 161 (National banks).
19981231
---------------
(RCRI 9999)
This report form is to be filed by banks with branches and
consolidated subsidiaries in U.S. territories and possessions,
Edge or Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed
by an authorized officer and the Report of Condition must be
attested to by not less than two directors (trustees) for State
nonmember banks and three directors for State member and
National Banks.
I, /s/ E. Patrick Leahy, Vice President
- -------------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that the Reports of
Condition and Income (including the supporting schedules)
for this report date have been prepared in conformance with
the instructions issued by the appropriate Federal regulatory
authority and are true to the best of my knowledge and
belief.
/s/ E. PATRICK LEAHY
- -------------------------------------------------------------
Signature of Officer Authorized in Sign Report
January 29, 1999
- -------------------------------------------------------------
Date of Signature
The Reports of Conditions and Income are to be prepared in
accordance with Federal regulatory authority instructions.
We, the undersigned directors (trustees), attest to the
correctness of the Report of Condition (including the
supporting schedules) for this report date and declare that it
has been examined by us and to the best of our knowledge
and belief has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory
authority and is true and correct.
/s/
- -------------------------------------------------------------
Director (Trustee)
/s/
- -------------------------------------------------------------
Director (Trustee)
/s/
- -------------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------
Submission of Reports
Each bank must prepare its Reports of Condition and Income
either:
(a) in electronic form and then file the computer data file
directly with the banking agencies' collection agent,
Electronic Data Systems Corporation (EDS), by modem or
on computer diskette; or
(b) in hard-copy (paper) form and arrange for another party
to convert the paper report to electronic form. That party
(if other than EDS) must transmit the bank's computer
data file to EDS.
For electronic filing assistance, contact EDS Call
Report Services, 2150 N. Prospect Ave., Milwaukee,
WI 53202, telephone (800)255-1571.
To fulfill the signature and attestation requirement for the
Report of Condition and Income for this report date, attach
this signature page to the hard-copy record of the completed
report that the bank places in its files.
- -------------------------------------------------------------------------------
FDIC Certificate Number: 06559
-------------
(RCRI 9050)
Bank One, NA
- -------------------------------------------------------------
Legal Title of Bank (TEXT 9010)
Columbus
- -------------------------------------------------------------
City (TEXT 9130)
OH 43271
- -------------------------------------------------------------
State Abbrev. (TEXT 9230) Zip Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, Office of the Comptroller
of the Currency.
<PAGE> 36
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Bank One, NA Call Date: 12/31/1998 State #: FFIEC 031
100 East Broad Street, OH1-1066 Vendor ID: D Cert #: 06559 RC-1
Columbus OH 43271 Transit #: 04400037 -------
Transmitted to EDS as 0149176 on 01/29/99 at 13:49:48 CST 11
-------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
SCHEDULE RC-BALANCE SHEET
C400
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin (1) 0081 1,263,732 1.a
---------------------------------------- ----------
b. Interest-bearing balances (2) 0071 1,100 1.b
------------------------------------------------------------------ ----------
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a
-------------------------------------- ----------
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 1,962,064 2.b
------------------------------------ ----------
3. Federal funds sold and securities purchased under agreements to resell 1350 5,813,776 3.
----------------------------- ----------
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income (from Schedule RC-C) 2122 19,063,004 4.a
------------- ----------
b. LESS: Allowance for loan and lease losses 3123 360,085 4.b
-------------------------------- ----------
c. LESS: Allocated transfer risk reserve 3128 0 4.c
------------------------------------ ----------
d. Loans and leases, net of unearned income, RCFD
allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 18,702,919 4.d
--------------------------------------------- ----------
5. Trading assets (from Schedule RC-D) 3545 0 5.
---------------------------------------------------------------- ----------
6. Premises and Fixed assets (including capitalized leases) 2145 345,705 6.
------------------------------------------- ----------
7. Other real estate owned (from Schedule RC-M) 2150 13,396 7.
------------------------------------------------------- ----------
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 179,689 8.
----------- ----------
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
--------------------------------------- ----------
10. Intangible assets (from Schedule RC-M) 2143 88,411 10.
------------------------------------------------------------- ----------
11. Other assets (from Schedule RC-F) 2160 2,041,962 11.
------------------------------------------------------------------ ----------
12. Total assets (sum of items 1 through 11) 2170 30,412,754 12.
----------------------------------------------------------- ----------
</TABLE>
- ---------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 37
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Bank One, NA Call Date: 12/31/1998 State #: FFIEC 031
106 East Broad Street: OH1-1066 Vendor ID: D Cert #: 06559 RC-2
Columbus, OH 43271 Transit #: 04400037 12
Transmitted to EDS as 0149175 or 01/29/99 at 13:49:48 CST
Schedule RC-continued
Dollar Amount in Thousands
- ----------------------------------------------------------------------------------------------------------------
LIABILITIES
3. Deposits:
a. In domestic offices (sum of totals of columns A and C from schedule RC-E, RCON
part I) ----
------------------------------------------------------------------- RCON 2200 16,686,911 13.a
---- ----------
(1) Noninterest-bearing (1) 6631 6,013,460 13.a.1
------------------------------------------------ 6636 10,673,451 13.a.2
(2) Interest-bearing
b. In foreign offices, Edge and Agreements subsidiaries, and IBFs (from RCFN
Schedule RC-E, part II) ----
RCFN 2200 1,061,150 13.b
--------------------------------------------------- ---- ----------
(1) Noninterest-bearing 6631 0 13.b1
---------------------------------------------------
(2) Interest-bearing 6636 1,061,150 RCFD 13.b2
------------------------------------------------------ ----
4. Federal funds purchased and securities sold under agreements to repurchase 2800 6,916,824 14
------------------------ ----------
RCON
----
5. a. Demand notes issued to the U.S. Treasury 2840 40,072 15.a
------------------------------------------------------ ----------
RCFD
b. Trading liabilities (from Schedule RC-D) ----
------------------------------------------------------ 3548 0 15.b
6. Other borrowed money (includes mortgage indebtedness and ----------
obligations under capitalized leases):
a. With a remaining maturity of one year or less
------------------------------------------------ 2332 1,630,886 16.a
b. With a remaining maturity of more than one year through three years ----------
-------------------------- A547 51,357 16.b
c. With a remaining maturity of more than three years ----------
------------------------------------------- A548 589,722 16.c
7. Not applicable ----------
8. Bank's liability on acceptances executed and outstanding
--------------------------------------- 2920 0 18
9. Subordinated notes and debentures(2) ----------
----------------------------------------------------------- 3200 779,522 19
10. Other liabilities (from Schedule RC-G) ----------
-------------------------------------------------------- 2930 710,386 20
11. Total liabilities (sum of items 13 through 20) ----------
------------------------------------------------ 2948 28,466,830 21
12. Not applicable. ----------
EQUITY CAPITAL
13. Perpetual preferred stock and related surplus
------------------------------------------------- 3838 0 23
14. Common stock ----------
---------------------------------------------------------------------------------- 3230 127,044 24
15. Surplus (exclude all surplus related to preferred stock) ----------
-------------------------------------- 3839 983,610 25
16. a. Undivided profits and capital reserves ----------
----------------------------------------------------- 3632 817,015 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities ----------
--------------------- 8434 18,255 26.b
17. Cumulative foreign currency translation adjustments ----------
------------------------------------------ 3284 0 27
18. Total equity capital (sum of item 23 through 27) ----------
---------------------------------------------- 3210 1,945,924 28
19. Total liabilities and equity capital (sum of items 21 and 28) ----------
--------------------------------- 3300 30,412,754 29
Memorandum ----------
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the RCFD Number
most comprehensive level of auditing work performed for the bank by independent external ---- ------
auditors as of any date during 1997 6724 N/A M.1
-----------------------------------------------------------
</TABLE>
1= Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2= Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company (but
not on the bank seperately)
3= Director's examination of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering
authority.
4= Director's examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5= Review of the bank's financial statements by external
auditors
6= Compilation of the bank's financial statements by
external auditors
7= Other audit procedures (excluding tax preparation work)
8= No external audit work
- -------------------
(1) Includes total demand deposit and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
