<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1999
REGISTRATION STATEMENT NO. 333-88573
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
ON
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CONOCO INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
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DELAWARE 2911 51-0370352
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
TEL: (281) 293-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
RICK A. HARRINGTON, ESQ.
SENIOR VICE PRESIDENT, LEGAL, AND
GENERAL COUNSEL
CONOCO INC.
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
TEL: (281) 293-1000
FAX: (281) 293-1440
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
WALTER J. SMITH, ESQ.
BAKER & BOTTS, L.L.P.
ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS 77002
TEL: (713) 229-1234
FAX: (713) 229-1522
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING UNDER SAID SECTION 8(a), MAY
DETERMINE.
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Prospectus
Conoco Inc.
500,000 Class A Shares
1,500,000 Class B Shares
Common Stock, par value $.01 per share
Conoco Inc. is pleased to offer you the opportunity to participate in CONOCO
CONNECTION, a direct stock purchase and dividend reinvestment plan. Participants
in CONOCO CONNECTION may:
] Purchase shares without paying brokerage fees.
] Reinvest dividends and/or make additional cash purchases by check or automatic
deduction from their bank accounts.
] Transfer and sell shares easily.
] Own and transfer shares without holding stock certificates.
Conoco has appointed First Chicago Trust Company of New York, a division of
EquiServe, to administer CONOCO CONNECTION. All purchases of common stock will
be made by EquiServe at 100% of the then-current market price of the Class A or
Class B common stock, calculated as described in this prospectus, either in the
open market or from Conoco.
The Class A common stock and the Class B common stock are listed on the New York
Stock Exchange under the symbols "COC.A" and "COC.B." On October 29, 1999, the
closing price of the Class A common stock as shown on the New York Stock
Exchange was $27 7/16 per share, and the closing price of the Class B common
stock as shown on the New York Stock Exchange composite tape was $27 1/8 per
share.
INVESTING IN CONOCO COMMON STOCK INVOLVES RISKS. SEE QUESTION 21, WHAT ARE THE
RISKS OF PARTICIPATING IN CONOCO CONNECTION? BEGINNING ON PAGE 24 OF THIS
PROSPECTUS.
To the extent required by law in certain jurisdictions, shares offered through
CONOCO CONNECTION will be offered through a registered broker dealer to persons
not currently Conoco stockholders.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
NOVEMBER 1, 1999
<PAGE> 3
[CONOCO LOGO]
Conoco Inc.
CONOCO CONNECTION
November 1, 1999
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TABLE OF CONTENTS PAGE
<S> <C> <C>
Summary................................... 4
CONOCO CONNECTION....................... 4
ABOUT CONOCO............................ 6
CONOCO CONNECTION....................... 8
1. What is CONOCO CONNECTION?....... 8
2. What options are available under
CONOCO CONNECTION?............... 8
3. Who can join CONOCO
CONNECTION?...................... 9
4. Are there fees associated with
participation?................... 9
5. How do I join CONOCO
CONNECTION?...................... 10
6. Can I enroll via the Internet?... 13
7. I am currently a holder of Class
A common stock. How do I become a
holder of Class B common
stock?........................... 13
8. I am currently a holder of Class
B common stock. How do I become a
holder of Class A common
stock?........................... 13
9. Who administers CONOCO
CONNECTION? How do I contact
them?............................ 14
10. What are the dividend payment
options?......................... 15
11. How do I change my dividend
payment option?.................. 16
12. How can I stop reinvesting
dividends?....................... 17
13. Can my cash dividends be
deposited directly to my bank
account?......................... 18
14. How do I make additional cash
purchases of common stock?....... 19
15. How do I change or stop automatic
deductions from my bank
account?......................... 20
16. Is there any limit on cash
purchases?....................... 20
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<TABLE>
<CAPTION>
TABLE OF CONTENTS, CONTINUED PAGE
<S> <C> <C>
17. How are shares purchased and
priced?.......................... 21
18. When will shares be purchased?... 21
19. How do I sell shares?............ 22
20. Can I transfer my shares to
someone else?.................... 23
21. What are the risks of
participating in CONOCO
CONNECTION?...................... 24
22. What reports will I receive?..... 25
23. Will I receive stock certificates
for shares I purchase through
CONOCO CONNECTION?............... 26
24. How do I get a stock certificate
for the shares credited to my
account?......................... 26
25. Why should I deposit my stock
certificates with EquiServe? How
can I do this?................... 26
26. What is the "book-entry"
procedure for holding and
transferring shares?............. 28
27. What are the tax consequences of
participating in CONOCO
CONNECTION?...................... 29
28. Will federal income tax be
withheld from dividends or sales
proceeds?........................ 29
29. How do I vote my CONOCO
CONNECTION shares at stockholder
meetings?........................ 30
30. What if Conoco issues a stock
dividend or declares a stock
split or rights offering?........ 30
31. Can CONOCO CONNECTION be changed
or terminated?................... 31
32. What law applies to CONOCO
CONNECTION?...................... 31
33. How will Conoco use the proceeds
from its sale of stock?.......... 31
34. Where can I find more information
about Conoco?.................... 32
Experts................................... 34
Legal Matters............................. 34
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SUMMARY
This summary highlights selected information from this document but may not
contain all the information that is important to you. To fully understand CONOCO
CONNECTION and for a more complete description of the legal terms of CONOCO
CONNECTION, you should read carefully this entire document and the documents to
which we have referred you. To find out how to obtain copies of these documents,
see Question 34, Where Can I Find More Information about Conoco? on page 32.
CONOCO CONNECTION
] If you are not currently a Conoco stockholder, or if you hold only Class A
common stock, you can purchase Class B common stock for the first time with a
minimum investment of $250. Your initial purchase can be made in one payment
of $250 by check or money order or through automatic deductions of a minimum
of $50 per transaction from your bank account for at least five consecutive
purchases.
] If you are an existing stockholder, you may:
- Automatically reinvest all or part of your cash dividends in additional
shares. DIVIDENDS ON CLASS A SHARES ARE REINVESTED IN CLASS A SHARES.
DIVIDENDS ON CLASS B SHARES ARE REINVESTED IN CLASS B SHARES.
- Make additional cash purchases (minimum of $50) by check, money order or
automatic deductions from your bank account. IF YOU CURRENTLY HOLD CLASS A
STOCK, ANY ADDITIONAL CASH PURCHASES YOU MAKE WILL BE IN CLASS A STOCK. IF
YOU CURRENTLY HOLD CLASS B STOCK, ANY ADDITIONAL CASH PURCHASES YOU MAKE
WILL BE IN CLASS B STOCK. IF YOU HOLD BOTH CLASS A AND CLASS B STOCK, YOU
CAN MAKE ADDITIONAL CASH PURCHASES OF BOTH CLASSES OF STOCK.
] You do not need to revinest your dividends to participate. Dividends not
reinvested can be
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paid to you by check or electronic deposit to your bank account.
] Cash investments are subject to an annual maximum of $250,000 in each class of
stock through CONOCO CONNECTION.
] Purchase orders are processed at least once every five days.
] Your whole and fractional Conoco shares are held in safe and convenient
book-entry form. However, stock certificates are free of charge upon request.
] For safekeeping purposes, stock certificates can be converted into book-entry
shares, which will be credited to your account at no cost to you.
] You can sell your shares by simply picking up the telephone and instructing
EquiServe. Sale orders are processed daily.
] You can transfer shares or make gifts of shares easily and at no cost.
] You can handle all transactions by mail and most by fax and can accomplish
many account inquiries and sell shares over the telephone and/or Internet.
HOW TO PARTICIPATE IN CONOCO CONNECTION:
] New investors or Class A holders wishing to purchase Class B shares may make
their initial investment in Class B shares by completing an Initial Investment
Form and either mailing it with a check or money order for at least $250 or,
alternatively, you can make your first purchase of Class B shares by
authorizing automatic deductions of a minimum of $50 per transaction for at
least five consecutive purchases from a designated account at a U.S. bank or
financial institution. New investors in Class B shares can also enroll on the
Internet at www.equiserve.com.
] Current registered stockholders can reinvest dividends immediately by filling
out the Enrollment Authorization Form and sending it
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to EquiServe. They can also make additional cash purchases of the class of
stock they currently own by sending a check for a minimum of $50 or by
authorizing EquiServe to make automatic deductions of a minimum of $50 from a
designated account at a U.S. bank or financial institution.
] Conoco stockholders holding their stock through a broker must become
registered stockholders to enroll in CONOCO CONNECTION. See Question 5, How do
I join CONOCO CONNECTION? for instructions.
FEES AND COMMISSIONS:
] New investors in Class B shares pay a one-time fee of $10, taken from their
initial investment funds. Current stockholders enrolling to reinvest dividends
or make additional cash purchases of the class of stock they currently own do
not pay this fee.
] Conoco pays all fees and brokerage commissions on dividend reinvestments, and
most fees and all brokerage commissions on purchases, in addition to the cost
of annual maintenance of your account and the fees for automatic deductions
from your bank account.
] You will be charged a $10 fee and reasonable brokerage commissions (currently
$0.12 per share) on sales of shares through CONOCO CONNECTION.
] Returned checks or failed automatic deduction transactions will result in a
charge of $25 to the participant.
ABOUT CONOCO
] Conoco is a major, integrated, global energy company. Conoco was founded in
1875 and is involved in exploring for and developing, producing and selling
crude oil, natural gas and natural gas liquids, refining crude oil and other
feedstocks into petroleum products, buying and selling crude oil and refined
products and transporting, distributing and marketing
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petroleum products. Conoco is also engaged in developing and operating power
facilities.
] Conoco has two classes of common stock, Class A and Class B. Holders of Conoco
Class A common stock and Class B common stock generally have identical rights,
including dividend and liquidation rights, except that holders of Conoco Class
A common stock are entitled to one vote per share, while holders of Conoco
Class B common stock are entitled to five votes per share. Conoco stock is
listed on the New York Stock Exchange under the symbol "COC.A" for the Class A
common stock and "COC. B" for the Class B common stock.
] Conoco's principal executive office is located at 600 North Dairy Ashford,
Houston, Texas 77079, and its telephone number is
(281) 293-1000.
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CONOCO CONNECTION
The following questions and answers explain and constitute CONOCO CONNECTION:
1. WHAT IS CONOCO CONNECTION?
CONOCO CONNECTION is a convenient and economical way for new investors to
make an initial investment in Conoco Class B common stock and for existing
stockholders to increase their holdings of Conoco common stock.
Participants in CONOCO CONNECTION may elect to have dividends on both Class
A and Class B common stock automatically reinvested and to make additional
cash purchases of the class of common stock they currently hold.
Participation in CONOCO CONNECTION is entirely voluntary and we give no
advice regarding your decision to join CONOCO CONNECTION. However, if you
decide to participate in CONOCO CONNECTION, an enrollment form and reply
envelope are enclosed for your convenience. Initial Investment Forms for
new investors in Class B shares are also available, and may be completed,
on the Internet at www.equiserve.com.
2. WHAT OPTIONS ARE AVAILABLE UNDER CONOCO CONNECTION?
CONOCO CONNECTION allows participants to:
] Make initial investments in Class B common stock;
] Have their dividends on Class A and Class B common stock automatically
reinvested (fully or partially) in additional shares of common stock.
DIVIDENDS ON CLASS A SHARES ARE REINVESTED IN CLASS A SHARES. DIVIDENDS
ON CLASS B SHARES ARE REINVESTED IN CLASS B SHARES; and
] Make additional cash purchases of Class A or Class B common stock by
check, money
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order or automatic deductions from their bank accounts. IF YOU CURRENTLY
HOLD CLASS A STOCK, ANY ADDITIONAL CASH PURCHASES YOU MAKE WILL BE IN
CLASS A STOCK. IF YOU CURRENTLY HOLD CLASS B STOCK, ANY ADDITIONAL CASH
PURCHASES YOU MAKE WILL BE IN CLASS B STOCK. IF YOU HOLD BOTH CLASS A AND
CLASS B STOCK, YOU CAN MAKE ADDITIONAL CASH PURCHASES OF BOTH CLASSES OF
STOCK.
As a participant, you can mix and match CONOCO CONNECTION features. For
example, you can convert your stock certificates into book-entry shares,
continue to receive dividends in cash, and purchase more shares through
additional cash purchases.
3. WHO CAN JOIN CONOCO CONNECTION?
Anyone is eligible to join CONOCO CONNECTION, whether or not they are
currently stockholders of Conoco. If you are a resident of a foreign
country, you should make sure that participation would not violate any laws
in your home country.
4. ARE THERE FEES ASSOCIATED WITH PARTICIPATION?
] New investors in Class B shares pay a one-time fee of $10, which will be
deducted from their initial investment funds. Current stockholders
enrolling to reinvest dividends or make additional cash purchases of the
class of stock they already own do not pay this fee. Conoco pays the
brokerage commission on shares purchased with your initial investment.
] Conoco pays the fees and brokerage commissions on all other purchases,
including dividend reinvestments, in addition to the fees for automatic
deductions from your bank account and the annual maintenance cost of your
account.
] If you ask EquiServe to sell any of your shares, you will be charged a
$10 fee and
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reasonable brokerage commissions (currently $0.12 per share).
] Returned checks or failed automatic deduction transactions will result in
a charge of $25 to you.
5. HOW DO I JOIN CONOCO CONNECTION?
] REGISTERED STOCKHOLDERS. If you are already a Conoco stockholder of
record (that is, if you own shares that are registered in your name, not
your broker's name), you may enroll in CONOCO CONNECTION simply by
completing and returning the enclosed Enrollment Authorization Form.
Forms may also be obtained by calling EquiServe directly at (800)
317-4445.
] STOCKHOLDERS OWNING CONOCO COMMON STOCK THROUGH A BANK, BROKER OR
TRUSTEE. If you own shares of Conoco common stock but they are held in
the name of a bank, broker or trustee in "street" or nominee name, you
can become a registered holder by instructing your bank, broker or
trustee to transfer some or all of your shares into your name. You can
choose whether to receive a physical stock certificate for your shares or
to hold them in a book-entry account maintained by EquiServe.
- STOCK CERTIFICATE. Once you receive your stock certificate, you may
begin to use any or all of the CONOCO CONNECTION services.
- BOOK-ENTRY SHARES. This is an electronic transfer of your shares from
your broker's name into your name through the Direct Registration
System. Simply instruct your broker to conduct a "Withdrawal by
Transfer" specifying a "statement" or "S" transaction. This will
establish your book-entry account on Conoco's stockholder records
maintained by EquiServe, which
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includes your brokerage account information.
Once your brokerage account information is established on your book-entry
account with EquiServe, you can commence using any or all of the CONOCO
CONNECTION services. Additionally, at any time you may withdraw all or part of
your shares from CONOCO CONNECTION and electronically deliver them back to your
brokerage account. EquiServe will electronically deliver your shares within two
business days of receiving and accepting your instructions. To change or add
information concerning your bank, broker, or trustee to your account with
EquiServe, you must complete an Authorization to Provide Broker/Dealer
Information Form, available upon request from EquiServe or your bank, broker or
trustee. Your signature(s) on the Authorization Form must be witnessed by a bank
or broker with a Medallion Guarantee. Most banks and brokers participate in the
Medallion Guarantee program. The Medallion Guarantee program ensures that the
individual signing is in fact the owner of the shares. A notary is not
sufficient.
] NEW INVESTORS IN CLASS B SHARES. If you are not a current Conoco Class B
stockholder or if you want to establish a separate account by purchasing
Class B shares through CONOCO CONNECTION (for example, a joint account
\with your spouse, or as a custodian for a minor), you may enroll by
filling out an Initial Investment Form and returning it to EquiServe with
a payment of at least $250 and no more than $250,000. Initial cash
payments may be made by check or money order payable to EquiServe. All
money must be in U.S. funds and drawn
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on a U.S. bank or financial institution. Third-party checks will not be
accepted. As an alternative, you may enroll by accessing CONOCO
CONNECTION over the Internet at www.equiserve.com and make your initial
purchase through authorizing automatic deductions from your U.S. bank or
financial institution.
Conoco will waive the $250 minimum initial investment for investors who choose
to make their initial purchase and subsequent on-going purchases of Class B
common stock through automatic monthly investments. You must authorize an
Automatic Clearing House deduction of a minimum of $50 per transaction from a
designated account at a U.S. bank or financial institution for at least five
consecutive purchases. To do this, you must complete and return an Authorization
Form for Automatic Deductions to EquiServe, together with a voided blank check
or savings account deposit slip for the account from which funds are to be
drawn. An Authorization Form for Automatic Deductions is located on the reverse
of the Initial Investment Form. You should allow four to six weeks for the first
investment to be initiated. You can designate whether you would like funds
deducted once or twice per month on either the first day of the month, the
fifteenth day of the month, or both. Once automatic deductions are initiated,
funds will be drawn from your account on the first and/or fifteenth day of each
month or the next business day if the first and/or fifteenth are not business
days. After fulfilling the minimum purchase requirement, you can stop the
automatic investments by telephoning or writing to EquiServe.
Your enrollment fee of $10 will be subtracted from your initial investment
amount, with the remainder of the funds being applied toward your first
purchase.
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6. CAN I ENROLL VIA THE INTERNET?
If you are not currently a Conoco Class B stockholder, you may enroll in
CONOCO CONNECTION and make your initial investment in Class B shares via
the Internet. You can access the CONOCO CONNECTION prospectus through the
Internet at www.equiserve.com. After reviewing this document, click on
"Enrollment" to link to a secure website where, after providing the
necessary information, you may enroll in CONOCO CONNECTION by authorizing
automatic deductions of a minimum of $50 per transaction (once or twice per
month) from a designated account at a U.S. bank or financial institution
for at least five consecutive purchases.
7. I AM CURRENTLY A HOLDER OF CLASS A COMMON STOCK. HOW DO I BECOME A HOLDER OF
CLASS B COMMON STOCK?
You may directly purchase Class B common stock in the same way that a new
investor joins CONOCO CONNECTION, regardless of your ownership in Class A
common stock. You will be required to make a $250 minimum investment in
Class B stock and pay the $10 enrollment fee. To learn more about this, see
Question 5, How do I join CONOCO CONNECTION?, and follow the instructions
for new investors in Class B shares.
8. I AM CURRENTLY A HOLDER OF CLASS B COMMON STOCK. HOW DO I BECOME A HOLDER OF
CLASS A COMMON STOCK?
Current Class B common stockholders may not purchase Class A common stock
directly through CONOCO CONNECTION. If you wish to purchase Class A common
stock, you must do so in the open market. After you become a Class A
holder, you may enroll in CONOCO CONNECTION as a Class A holder and
reinvest Class A dividends and
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make additional cash purchases of Class A common stock.
9. WHO ADMINISTERS CONOCO CONNECTION? HOW DO I CONTACT THEM?
Conoco has engaged First Chicago Trust Company of New York, a division of
EquiServe, to administer and act as agent for CONOCO CONNECTION. EquiServe
purchases shares of Conoco common stock acquired under CONOCO CONNECTION,
keeps records, sends statements of account activity to participants and
performs all other administrative duties relating to CONOCO CONNECTION.
By enrolling in CONOCO CONNECTION, you are authorizing EquiServe to receive
your initial investment and/or additional cash purchases and/or dividends
(if you reinvest your dividends) on your behalf and to apply these amounts
to the purchase of Conoco common stock.
All inquiries, notices, requests and other communications concerning CONOCO
CONNECTION should be made to EquiServe at:
CONOCO CONNECTION
C/O EQUISERVE
P.O. BOX 2598
JERSEY CITY, NJ 07303-2598
Current stockholders can obtain account information and both current
stockholders and new investors may ask questions about CONOCO CONNECTION by
calling EquiServe at the following telephone numbers:
TELEPHONE: (800) 317-4445
OUTSIDE THE U.S. AND
CANADA: (201) 324-0313
TDD: (201) 222-4955
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Customer service representatives are available from 8:30 a.m. to 7:00 p.m.
(Eastern time) each business day.
New investors may request a prospectus and enrollment form any time of day,
every day of the year, by calling EquiServe's automated voice response
systems at (800) 483-0294.
You can also obtain information about your CONOCO CONNECTION account on
EquiServe's Internet site at www.equiserve.com. At the Internet site, you
can access your share balance, sell shares, request a stock certificate,
and obtain online forms and other information about your account. To get
access, you will require a password. EquiServe will automatically send you
a password. If you need a password prior to receiving your password in the
mail, call toll-free (877) THE-WEB7
((877) 843-9327).
Conoco may assume the administration of CONOCO CONNECTION at any time or
appoint another agent for CONOCO CONNECTION without prior notice to
participants.
10. WHAT ARE THE DIVIDEND PAYMENT OPTIONS?
Participants in CONOCO CONNECTION may choose to reinvest some, all, or none
of their dividends.
DIVIDENDS ON CLASS A SHARES ARE REINVESTED IN CLASS A SHARES.
DIVIDENDS ON CLASS B SHARES ARE REINVESTED IN CLASS B SHARES.
] If you elect full reinvestment, cash dividends paid on all Conoco Class A
or Class B common stock registered in your name, whether held by you in
stock certificate form or credited to your book-entry account, will be
applied to the purchase of additional shares of the class
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of Conoco common stock on which the dividend is paid, on or around the
dividend payment date.
] If you elect partial reinvestment of dividends, a portion of your
dividend proceeds will be paid to you in cash, and the remainder will be
used to purchase additional shares of the class of Conoco common stock on
which the dividend is paid, on or around the dividend payment date. To do
this, you must specify the number of whole shares on which you wish to
receive cash dividends. The dividends on the balance of your shares will
be reinvested. You may choose to have cash dividends directly deposited
in your designated account at a bank or financial institution or sent to
you by check.
] You can also elect to receive all of your dividends in cash rather than
reinvesting them. If you do not elect a dividend payment option on the
enrollment form, your dividends will be fully reinvested.
CONOCO EXPECTS ANY FUTURE DIVIDENDS ON SHARES OF CLASS A AND CLASS B COMMON
STOCK TO BE PAID ON THE 10TH OF MARCH, JUNE, SEPTEMBER AND DECEMBER TO
STOCKHOLDERS OF RECORD ON THE 10TH OF THE PRECEEDING FEBRUARY, MAY, AUGUST AND
NOVEMBER.
11. HOW DO I CHANGE MY DIVIDEND PAYMENT OPTION?
You may change your dividend option, including the amount of dividends
received in cash or applied to the purchase of additional
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shares, at any time by telephoning EquiServe, or by completing and
submitting a new Enrollment Authorization Form by fax or mail. EquiServe
must receive any changes before the dividend record date for the change to
be effective for that dividend. You can obtain the Enrollment Authorization
Form by contacting EquiServe by telephone or at the address provided in
Question 9, Who administers CONOCO CONNECTION? How do I contact them? You
can also obtain a copy of the form on EquiServe's Internet site.
12. HOW CAN I STOP REINVESTING DIVIDENDS?
You may discontinue reinvestment of dividends at any time by calling or
writing to EquiServe at the telephone numbers and address set forth in
Question 9, Who administers CONOCO CONNECTION? How do I contact them?
However, EquiServe must receive your request before the dividend record
date for the change to be effective for that dividend.
Even if you stop reinvestment, your shares will continue to be credited in
book-entry form to your account at EquiServe unless you request a stock
certificate. You may request a certificate for all or part of your shares.
If you request a stock certificate for all of your shares, you will receive
a stock certificate for any whole share(s) and a check representing the net
proceeds from the sale of any fractional share.
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13. CAN MY CASH DIVIDENDS BE DEPOSITED DIRECTLY TO MY BANK ACCOUNT?
Through CONOCO CONNECTION's direct deposit feature, you may elect to have
any cash dividends not reinvested paid by electronic funds transfer to your
designated bank account. To do this, you must first complete and return a
Direct Deposit Authorization Form to EquiServe along with a copy of a
voided blank check or savings account deposit slip. This form is not
included with your CONOCO CONNECTION material and must be specifically
requested from EquiServe by calling (800) 870-2340 or obtained on-line at
www.equiserve.com.
Forms must be received by EquiServe at least seven business days before the
dividend record date to be effective for that dividend. Forms received
after that date will not become effective until the following dividend. You
may discontinue this feature by writing to EquiServe. You must complete a
new Direct Deposit Authorization Form if you transfer ownership of shares
or otherwise establish a new account with EquiServe, close or change the
designated bank account, or are assigned a new account number by your bank.
If the proper forms are not completed, you will receive your dividend
payment by check.
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<PAGE> 20
14. HOW DO I MAKE ADDITIONAL CASH PURCHASES OF COMMON STOCK?
ADDITIONAL CASH PURCHASES CAN BE MADE ONLY IN THE CLASS OF COMMON STOCK YOU
ALREADY OWN. IF YOU CURRENTLY HOLD CLASS A STOCK, ANY ADDITIONAL CASH PURCHASES
YOU MAKE WILL BE IN CLASS A STOCK. IF YOU CURRENTLY HOLD CLASS B STOCK, ANY
ADDITIONAL CASH PURCHASES YOU MAKE WILL BE IN CLASS B STOCK. IF YOU HOLD BOTH
CLASS A AND CLASS B STOCK, YOU CAN MAKE ADDITIONAL CASH PURCHASES OF EITHER OR
BOTH CLASSES OF STOCK.
Additional cash purchases can be made in the following ways:
] CHECK OR MONEY ORDER. You can make additional cash purchases of Class A
or Class B common stock by check or money order for a minimum of $50,
payable in U.S. dollars to "EquiServe -- Conoco." You should send your
additional cash purchase payments to EquiServe together with the tear-off
Transaction Form attached to each account statement or, if making an
investment while enrolling, with the Enrollment Authorization Form. You
should also write your CONOCO CONNECTION account number on the check or
money order.
] AUTOMATIC DEDUCTION FROM A BANK ACCOUNT. You may make automatic
additional cash purchases through an Automated Clearing House withdrawal
of a specified amount from a designated account at a U.S. bank or
financial institution. You can designate whether you would like funds
deducted once or twice per month, either on the first day of the month,
the fifteenth day of the month, or both. To do this, you must complete
and return an Authorization Form for Automatic Deductions to
19
<PAGE> 21
EquiServe, together with a voided blank check or savings account deposit
slip for the account from which funds are to be drawn. You should allow
four to six weeks for the first investment to be initiated. Once
automatic deductions are initiated, funds will be drawn from your account
on the first and/or fifteenth day of each month or the next business day
if the first and/or fifteenth are not business days. If you authorize
automatic deductions once a month, you can specify whether your deduction
will be made on the first or the fifteenth of the month. Automatic
deductions will continue until you instruct EquiServe to stop.
Regardless of how you make your purchase, you will benefit from the full
investment of your funds, as both whole and fractional shares are credited
to your account.
15.HOW DO I CHANGE OR STOP AUTOMATIC DEDUCTIONS FROM MY BANK ACCOUNT?
You may change or stop automatic deductions by notifying EquiServe by
telephone, mail or fax. You must complete a new Authorization Form for
Automatic Deductions when you transfer ownership of your shares or
otherwise establish a new account on EquiServe's records, close or change
the designated bank account or are assigned a new account number by your
bank.
To be effective with respect to a particular investment date, EquiServe
must receive the new Authorization Form for Automatic Deductions at least
six business days before the date that funds are scheduled to be withdrawn
from your account.
16.IS THERE ANY LIMIT ON CASH PURCHASES?
Total cash purchases in each class of common stock may not exceed $250,000
per
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<PAGE> 22
calendar year, including your initial cash investment, if applicable.
17.HOW ARE SHARES PURCHASED AND PRICED?
]SOURCE OF SHARES AND PURCHASE PRICE. Conoco will decide how EquiServe will
purchase shares for CONOCO CONNECTION. We will instruct EquiServe to
purchase shares in the open market or to buy newly issued or treasury
shares directly from Conoco.
If EquiServe buys shares in the open market, the purchase price will be
the average price paid per share in the period during which shares are
purchased. If new shares or treasury shares are issued, the purchase price
will be the average of the high and low prices based on the New York Stock
Exchange composite transactions tape as reported in The Wall Street
Journal on the date they are purchased from Conoco.
18.WHEN WILL SHARES BE PURCHASED?
] PURCHASE PERIOD -- INITIAL CASH INVESTMENTS AND ADDITIONAL CASH
PURCHASES. EquiServe will invest funds in Class A or Class B common
stock, as applicable, at least once every five business days. EquiServe,
not Conoco, will determine the actual investment date. If you sign up to
make automatic purchases of Class A or Class B common stock by
authorizing EquiServe to deduct $50 or more from your bank account either
once or twice a month, your payment will be transferred on the first
and/or fifteenth of each month (as elected by you) or on the next
business day if the first and/or fifteenth are not business days.
- You will not be paid any interest on amounts held by EquiServe pending
investment. EquiServe will return any funds held pending investment,
provided
21
<PAGE> 23
that EquiServe receives your request not less than two business days
before the date that the funds will be invested.
- To be sure you receive the next dividend to be paid, initial
investments and additional cash purchases of Class A or Class B common
stock must be received by EquiServe at least eight business days before
the record date for that dividend.
] REINVESTED DIVIDENDS. When EquiServe purchases shares in the open market
with dividends to be reinvested, EquiServe will purchase shares at any
time beginning on the dividend payment date and ending no later than 30
days after the dividend payment date. If new shares or previously issued
shares held in Conoco's treasury are issued, EquiServe will purchase
shares from Conoco on the dividend payment date.
PLEASE NOTE THAT YOU WILL NOT BE ABLE TO
INSTRUCT EQUISERVE TO PURCHASE SHARES
AT A SPECIFIC TIME OR AT A SPECIFIC PRICE.
IF YOU PREFER TO HAVE CONTROL OVER THE
EXACT TIMING AND PRICE OF YOUR
PURCHASE, YOU WILL NEED TO USE YOUR OWN
BROKER.
19.HOW DO I SELL SHARES?
To sell any shares that you hold in stock certificate form through CONOCO
CONNECTION, they must first be converted into book-entry shares and
credited to your account with EquiServe.
You can sell any of the shares credited to your account with EquiServe by
accessing your account via the Internet at www.equiserve.com, telephoning
EquiServe, or completing the Transaction Form attached to your CONOCO
CONNECTION account
22
<PAGE> 24
statement and returning it to EquiServe by fax or mail.
If you have elected to receive cash dividends on some of your shares and
reinvest dividends on the balance of your shares, unless you specify
otherwise, the shares on which you are reinvesting dividends will be used
to fill the sale order first. If those shares are insufficient to fill the
sale order, shares on which you have elected to receive cash dividends will
also be sold.
EquiServe will sell shares daily on the open market through its designated
broker. To be processed the same day, all sale requests must be received
before 1:00 p.m. (Eastern time) on a business day during which EquiServe
and the relevant securities trading markets are open. The sales price will
be the average price per Class A or Class B share, as applicable, received
by EquiServe for all sales made that day for CONOCO CONNECTION
participants. The cash proceeds that you will receive for the shares sold
will be equal to this average sales price minus the $10 service charge per
sale and the brokerage commission on the shares sold. See Question 4, Are
there fees associated with participation?
PLEASE NOTE THAT EQUISERVE WILL NOT ACCEPT INSTRUCTIONS TO SELL ON SOME LATER
DAY OR AT A SPECIFIC TIME OR PRICE. IF YOU WANT TO HAVE CONTROL OVER THE EXACT
TIMING AND SALES PRICES, YOU CAN WITHDRAW THE SHARES YOU WISH TO SELL AND SELL
THEM THROUGH YOUR OWN BROKER.
20.CAN I TRANSFER MY SHARES TO SOMEONE ELSE?
To transfer some or all of your shares to another person or entity, simply
call EquiServe. You will be asked to send EquiServe written transfer
instructions, or you can fill out the transfer instructions on the
23
<PAGE> 25
reverse of the Transaction Form attached to your account statement. Your
signature must be "Medallion Guaranteed" by a financial institution. Once
EquiServe receives all of the necessary forms and documents, your request
will be processed promptly. This service is free.
You may transfer shares to new or existing Conoco stockholders. However, a
CONOCO CONNECTION account will not be opened for a transferee as a result
of a transfer of less than one full share.
21.WHAT ARE THE RISKS OF PARTICIPATING IN CONOCO CONNECTION?
] YOU BEAR ALL RISK OF LOSS THAT MAY RESULT FROM MARKET FLUCTUATIONS IN THE
PRICE OF CONOCO COMMON STOCK. Your investment risks in Conoco shares
acquired under CONOCO CONNECTION are no different from your investment
risks in shares held directly by you. Neither Conoco nor EquiServe can
assure you a profit or protect you against any loss on shares that are
purchased through CONOCO CONNECTION.
] BY ESTABLISHING CONOCO CONNECTION, CONOCO DOES NOT GUARANTEE THE PAYMENT
OF FUTURE DIVIDENDS. Conoco's stockholders may not receive future
dividends. The amount of cash dividends, if any, to be declared and paid
will depend upon declaration by Conoco's board of directors and upon
Conoco's financial condition, results of operations, cash flow, the level
of its capital and exploration expenditures, its future business
prospects and other related matters that Conoco's board of directors deem
relevant.
] CONOCO AND EQUISERVE WILL INTERPRET AND REGULATE THE OPERATION OF CONOCO
CONNECTION AS THEY BELIEVE APPROPRIATE. Neither Conoco, EquiServe, nor
any of their successors or any other
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<PAGE> 26
person providing services to CONOCO CONNECTION will be responsible for
any good-faith acts or omissions when operating or administering CONOCO
CONNECTION. For example, they are not responsible for:
- the failure to discontinue reinvestment of dividends or additional cash
purchases for a participant's account when the participant dies;
- the price at which Conoco common stock is purchased or sold; or
- the timing of any purchases or sales.
However, by participating in CONOCO CONNECTION, you will not waive any
legal rights you otherwise may have.
22.WHAT REPORTS WILL I RECEIVE?
To help you in your record keeping, EquiServe will send you the following
information:
] For each initial cash investment, additional cash purchase, sale or
transfer that you make or receive, a statement detailing the transaction;
] For each dividend reinvested, a statement detailing all activity in your
account for that calendar year; and
] For any transactions you make after the fourth quarter dividend, an
updated cumulative statement detailing all activity in your account for
that year.
IT IS VERY IMPORTANT TO RETAIN YOUR
STATEMENTS IN A SAFE PLACE FOR TAX
PURPOSES. EQUISERVE WILL CHARGE YOU $5
FOR EACH DUPLICATE STATEMENT YOU
REQUEST FOR ACCOUNT ACTIVITY OLDER
THAN TWO CALENDAR YEARS.
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<PAGE> 27
In addition to reports regarding CONOCO CONNECTION, you will receive copies
of the same communications sent to all other holders of Conoco common
stock, such as annual reports and proxy statements. You will also receive
any Internal Revenue Service information returns, if required.
23.WILL I RECEIVE STOCK CERTIFICATES FOR SHARES I PURCHASE THROUGH CONOCO
CONNECTION?
You will not receive stock certificates for shares purchased through CONOCO
CONNECTION. EquiServe will credit those shares in book-entry form to an
account in your name at EquiServe. Similarly, any stock certificates which
you may send to EquiServe for deposit will be converted into book-entry
shares and credited to your account.
24. HOW DO I GET A STOCK CERTIFICATE FOR THE SHARES CREDITED TO MY ACCOUNT?
To obtain stock certificates for all or some of your shares, you can access
your account via the Internet at www.equiserve.com, or call, write, or fax
EquiServe. This service is free.
Stock certificates for fractional shares cannot be issued. Instead,
EquiServe will sell any fractional shares and send you a check for the net
sale proceeds.
25. WHY SHOULD I DEPOSIT MY STOCK CERTIFICATES WITH EQUISERVE? HOW CAN I DO
THIS?
Your stock certificates are valuable and expensive to replace if lost or
stolen. CONOCO CONNECTION offers you the convenience of depositing your
stock certificates for conversion into book-entry shares at any time.
Once converted, your book-entry shares are credited to your account and may
be transferred or sold through CONOCO CONNECTION in the same convenient way
26
<PAGE> 28
as those shares you acquire through CONOCO CONNECTION.
Depositing your stock certificates does not require that you reinvest your
dividends.
To deposit stock certificates into your CONOCO CONNECTION account, send the
unendorsed certificates to:
CONOCO CONNECTION
C/O EQUISERVE
P.O. BOX 2598
JERSEY CITY, NJ 07303-2598
To insure against loss resulting from mailing certificates, EquiServe will
provide mail insurance free of charge. To be eligible for certificate
mailing insurance, you must observe the following guidelines. Certificates
must be mailed in brown, pre-addressed return envelopes provided by
EquiServe. Certificates mailed to EquiServe will be insured for the current
market value (up to $25,000) provided they are mailed first class. You must
notify EquiServe of any lost certificate claim within 30 calendar days of
the date the certificates were mailed. The maximum insurance protection
provided is $25,000 and coverage is available only when the certificate(s)
are sent to EquiServe in accordance with the guidelines described above.
Insurance covers the replacement of shares of Conoco stock, but in no way
protects against any loss resulting from fluctuations in the value of such
shares from the time you mail the certificates until such time as
replacement can be completed.
If you do not use the brown, pre-addressed envelope provided by EquiServe,
certificates mailed should be insured for possible mail loss for 2% of the
market value (minimum of $20). This represents your approximate replacement
cost if the certificates are lost in transit to EquiServe. If you wish to
deposit
27
<PAGE> 29
common stock with a market value greater than $25,000, please call
EquiServe for instructions.
There is no charge for depositing your stock certificates. You also may
request a stock certificate for any of your deposited shares at any time,
free of charge. See Question 24, How do I get a stock certificate for the
shares credited to my account?
26. WHAT IS THE "BOOK-ENTRY" PROCEDURE FOR HOLDING AND TRANSFERRING SHARES?
The book-entry procedure for share ownership is a way for stockholders to
hold and transfer their shares without having to use physical stock
certificates. Book-entry share ownership provides benefits to Conoco and
its stockholders by:
] eliminating the chance of lost or destroyed certificates;
] eliminating the need for certificate storage; and
] reducing the costs associated with the issuance and delivery of stock
certificates.
At any time, you may request and receive stock certificates for whole
shares that are held in book-entry form by following the procedures set
forth in Question 24, How do I get a stock certificate for the shares
credited to my account? You may also sell shares held in book-entry form by
following the procedures set out in Question 19, How do I sell shares?
All Class B shares were initially distributed as book-entry shares, so most
Class B stockholders already hold their shares in this manner, unless they
have requested a stock certificate.
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<PAGE> 30
27. WHAT ARE THE TAX CONSEQUENCES OF PARTICIPATING IN CONOCO CONNECTION?
All the dividends paid to you -- whether or not they are reinvested -- are
considered taxable income to you in the year they are paid by Conoco. Also,
the Internal Revenue Service will treat as taxable income to you any
brokerage commissions that Conoco pays on your behalf for purchases of
shares through Conoco Connection. The total amount will be reported to you
and to the Internal Revenue Service on IRS Form 1099-DIV, which will be
mailed by January 31.
All shares of Conoco common stock that are sold through EquiServe will be
reported to the IRS as required by law. IRS Form 1099-B will be mailed by
January 31 to all those who sold stock through CONOCO CONNECTION. The
1099-B form will include only proceeds you received from the sale of your
shares. You are responsible for calculating the cost basis of the shares
you sold and any gain or loss on the sale.
BE SURE TO KEEP YOUR ACCOUNT STATEMENTS FOR INCOME TAX PURPOSES. IF YOU HAVE
QUESTIONS ABOUT THE TAX IMPACT OF ANY TRANSACTIONS YOU ARE CONTEMPLATING, PLEASE
CONSULT YOUR OWN TAX ADVISOR.
28. WILL FEDERAL INCOME TAX BE WITHHELD FROM DIVIDENDS OR SALES PROCEEDS?
] UNITED STATES STOCKHOLDERS:
- Federal law requires EquiServe to withhold an amount, currently 31%,
from the amount of dividends and the proceeds of any sale of shares if:
V you fail to certify (either on your Initial Investment Form or on
Form W-9) to EquiServe that you are not subject to backup
withholding and
29
<PAGE> 31
that the taxpayer identification number on your account is correct,
or
V the IRS notifies Conoco or EquiServe that you are subject to backup
withholding.
- Any amounts withheld will be deducted from your dividends and/or from
the proceeds of any sale of your shares, and the remaining amount will
be reinvested or paid as you have instructed.
- You may obtain a W-9 by calling EquiServe and on the Internet at
www.equiserve.com.
] FOREIGN STOCKHOLDERS:
Any required United States income tax withholding will be deducted from
dividends and/or sale proceeds and the remaining amount will be reinvested
or paid as you have instructed.
29. HOW DO I VOTE MY CONOCO CONNECTION SHARES AT STOCKHOLDER MEETINGS?
For every stockholder meeting, you will receive a proxy that will cover all
the Conoco shares you hold both in CONOCO CONNECTION and in the form of
stock certificates. The proxy will allow you to indicate how you want your
shares to be voted. Your shares will be voted only as you indicate,
according to the instructions provided on the proxy card and in the
materials accompanying the proxy. If you own both Class A shares and Class
B shares, you will receive separate proxies for each class.
30. WHAT IF CONOCO ISSUES A STOCK DIVIDEND OR DECLARES A STOCK SPLIT OR RIGHTS
OFFERING?
If Conoco declares a stock split or stock dividend, the new shares will be
added to your account or distributed in the form of a stock certificate at
the discretion of Conoco.
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<PAGE> 32
In the event of a stock subscription or other offering of rights to
stockholders, your rights will be based on the shares held in your account
plus any shares you hold that are represented by stock certificates. A
single set of materials will be distributed that will allow you to exercise
your rights for all shares you own.
31. CAN CONOCO CONNECTION BE CHANGED OR TERMINATED?
Conoco can change or terminate CONOCO CONNECTION at any time. Conoco also
reserves the right to terminate any participant's participation in CONOCO
CONNECTION for any reason at its sole discretion. We will send you written
notice of any significant changes or upon termination. Changes or
termination will not affect your rights as a stockholder in any way.
32. WHAT LAW APPLIES TO CONOCO CONNECTION?
Delaware law governs the terms and conditions in this document, as well as
those that are described in detail on all forms and account statements.
33. HOW WILL CONOCO USE THE PROCEEDS FROM ITS SALE OF STOCK?
Conoco currently anticipates that all purchases by CONOCO CONNECTION will
be made on the open market. Conoco will not receive any proceeds from these
purchases. However, if CONOCO CONNECTION purchases are made from newly
issued shares or previously issued shares held in Conoco's treasury, Conoco
will receive the proceeds and use them for general corporate purposes. We
are unable to estimate the total amount of these shares or proceeds.
31
<PAGE> 33
34. WHERE CAN I FIND MORE INFORMATION ABOUT CONOCO?
] Conoco files annual, quarterly and special reports, proxy statements and
other information with the SEC. You can read and copy any materials we
file with the SEC at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the SEC's regional offices located at
Seven World Trade Center, New York, New York 10048, and at 500 West
Madison Street, Chicago, Illinois 60661. You can obtain information about
the operation of the SEC's Public Reference Room by calling the SEC at
(800) SEC-0330. The SEC also maintains a website that contains
information we file electronically with the SEC, which you can access
over the Internet at www.sec.gov. You can obtain information about us at
the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005 or by visiting our website at www.conoco.com.
] This prospectus is part of a registration statement we have filed with
the SEC relating to the Conoco common stock. As permitted by SEC rules,
this prospectus does not contain all of the information we have included
in the registration statement and the accompanying exhibits and schedules
we file with the SEC. You may refer to the registration statement, the
exhibits and schedules for more information about us and our securities.
The registration statement, exhibits and schedules are available at the
SEC's Public Reference Room or through its website.
] The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you
by referring you to those documents. The information
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<PAGE> 34
we incorporate by reference is an important part of this prospectus,
and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference
the documents listed below, and any future filings we make with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all the common stock offered
hereby. The documents we incorporate by reference are:
- our annual report on Form 10-K for the year ended December 31, 1998, as
amended on March 12, 1999;
- our quarterly reports on Form 10-Q for the quarterly periods ended
March 31, 1999 and June 30, 1999;
- our current reports on Form 8-K as filed with the SEC on March 23, 1999
and April 16, 1999; and
- the description of Conoco common stock and associated rights contained
in the Registration Statement on Form S-4 dated July 9, 1999, including
any amendment(s) or report(s) filed for the purpose of updating such
description.
] You may request a copy of these filings (other than an exhibit to those
filings unless we have specifically incorporated that exhibit by
reference into the filing), at no cost, by writing or telephoning us at
the following address:
CONOCO INC.
SHAREHOLDER RELATIONS DEPARTMENT
P.O. BOX 2197
HOUSTON, TEXAS 77079-2197
TELEPHONE: (281) 293-6800
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<PAGE> 35
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH OTHER
INFORMATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THE PROSPECTUS IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE OF THIS PROSPECTUS (NOVEMBER 1,
1999).
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 1998, as amended
on March 12, 1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL MATTERS
Baker & Botts, L.L.P., Houston, Texas, has passed upon the validity of the
Conoco common stock issuable under CONOCO CONNECTION.
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<PAGE> 36
CORRESPONDENCE
For stockholder and CONOCO CONNECTION
inquiries, contact EquiServe:
CONOCO CONNECTION
c/o EquiServe
P.O. Box 2598
Jersey City, NJ 07303-2598
Telephone: (800) 317-4445
Outside the U.S. and Canada: (201) 324-0313
TDD: (201) 222-4955
If you wish to contact Conoco directly,
you may write to or call:
Conoco Inc.
Shareholder Relations Department
P.O. Box 2197
Houston, TX 77252-2197
Telephone: (281) 293-6800
THIS PROSPECTUS SHOULD BE RETAINED FOR FUTURE REFERENCE.
<PAGE> 37
INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is a table of the registration fee for the Securities and
Exchange Commission, the filing fee for the National Association of Securities
Dealers, Inc., the listing fee for the New York Stock Exchange and estimates of
all other expenses to be incurred in connection with the issuance and
distribution of the securities described in this Registration Statement, other
than underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 14,580
NYSE listing fee............................................ 1,500
Blue sky fees and expenses.................................. 12,000
Printing expenses........................................... 150,000
Legal fees and expenses..................................... 50,000
Accounting fees and expenses................................ 5,000
Miscellaneous............................................... 10,000
--------
Total............................................. $243,080
========
</TABLE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute required court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (1) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(4) for any transaction from which the director derived an improper personal
benefit.
Article 5E(2) of the certificate of incorporation of Conoco (the
"Registrant") provides that no director shall be personally liable to Conoco or
any of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to Conoco or its stockholders, (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (3)
under section 174 of the Delaware General Corporation Law or (4) for any
transaction from which the director derived an improper personal benefit. Any
repeal or modification of such Article 5E(2) shall not adversely affect any
right or protection of a director of the Registrant for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
Conoco's by-laws provide for indemnification of directors and officers to the
maximum extent permitted by Delaware law.
I
<PAGE> 38
Conoco has entered into indemnification agreements with each of its
directors and persons named in the prospectus constituting a part of this
Registration Statement (collectively, "Indemnitees"). Such agreements provide
that, to the fullest extent permitted by applicable law, Conoco shall indemnify
and hold each Indemnitee harmless from and against any and all losses and
expenses whatsoever (1) arising out of any event or occurrence related to the
fact that such Indemnitee is or was a director or officer of Conoco, is or was
serving in another capacity with Conoco, or by reason of anything done or not
done by such Indemnitee in such capacity and (2) incurred in connection with any
threatened, pending or completed legal proceeding.
The Registrant may provide liability insurance for each director and
officer for certain losses arising from claims or changes made against them
while acting in their capabilities as directors or officers of Registrant,
whether or not Registrant would have the power to indemnify such person against
such liability, as permitted by law.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <C> <S>
3.1 -- Second Amended and Restated Certificate of Incorporation of
Conoco Inc.(1)
3.2 -- By-laws of Conoco Inc. as amended October 28, 1999(12)
4.1 -- Specimen Certificate for shares of Class A Common Stock of
the Registrant(3)
4.2 -- Specimen Certificate for shares of Class B Common Stock of
the Registrant(3)
4.3 -- Preferred Share Purchase Rights Agreement(3)
4.4 -- Amendment to Preferred Share Purchase Rights Agreement(4)
4.5 -- Second Amendment to Preferred Share Purchase Rights
Agreement(5)
4.6 -- Indenture between Conoco and the Trustee relating to the
debt securities(6)
5.1 -- Opinion of Baker & Botts, L.L.P. regarding the legality of
the shares being registered(7)
10.1 -- Employment Agreement, dated September 23, 1999, between
Conoco and Archie W. Dunham(7)
10.2 -- Conoco Inc. Key Employee Severance Plan as amended(7)
10.3 -- Conoco Inc. Key Employee Temporary Severance Plan as
amended(7)
10.4 -- Conoco Salary Deferral & Savings Restoration Plan as
amended(7)
10.5 -- Directors' Charitable Gift Plan as amended(7)
10.6 -- 1998 Stock and Performance Incentive Plan as amended May 12,
1999(8)
10.7 -- 1998 Key Employee Stock Performance Plan as amended May 12,
1999(9)
10.8 -- Deferred Compensation Plan for Nonemployee Directors as
amended May 12, 1999(10)
10.19 -- Form Indemnity Agreement with Directors(3)
21.1 -- List of Principal Subsidiaries of the Registrant(11)
23.1 -- Consent of PricewaterhouseCoopers LLP(12)
23.2 -- Consent of Baker & Botts, L.L.P.(13)
24 -- Power of Attorney(7)
</TABLE>
- ---------------
(1) Incorporated by reference to exhibit 3.1 filed as part of Conoco's Form
10-Q for the quarter ended September 30, 1998.
II
<PAGE> 39
(2) Incorporated by reference to exhibit 3.2 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(3) Incorporated by reference to the exhibit of the same number filed as part
of Conoco's Registration Statement on Form S-1, File No. 333-60119.
(4) Incorporated by reference to Exhibit 4.6 of Conoco's Registration Statement
on Form S-8, File No. 333-65977.
(5) Incorporated by Reference to Exhibit 4.1 of Conoco's Form 10-Q for the
quarter ended June 30, 1999.
(6) Incorporated by reference to exhibit 4.1 to Conoco's Registration Statement
on Form S-3, File No. 333-72291.
(7) Previously filed.
(8) Incorporated by reference to exhibit 10.2 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(9) Incorporated by reference to exhibit 10.3 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(10) Incorporated by reference to exhibit 10.1 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(11) Incorporated by reference to exhibit 21.1 filed as part of Conoco's Form
10-K for the year ended December 31, 1998.
(12) Filed herein.
(13) Contained in Exhibit 5.1.
UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant under the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act:
(b) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission under Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
III
<PAGE> 40
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
IV
<PAGE> 41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on November 1, 1999.
CONOCO INC.
By: /s/ ROBERT W. GOLDMAN
------------------------------------
Name: Robert W. Goldman
Title: Senior Vice President,
Finance, and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registration Statement has been signed below by the following persons in
the capacities indicated on November 1, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman, President and Chief Executive Officer
- ---------------------------------------------------
Archie W. Dunham
/s/ ROBERT W. GOLDMAN Senior Vice President, Finance, and Chief Financial Officer
- --------------------------------------------------- (Principal Financial Officer)
Robert W. Goldman
* Controller (Principal Accounting Officer)
- ---------------------------------------------------
W. David Welch
* Director
- ---------------------------------------------------
Ruth R. Harkin
* Director
- ---------------------------------------------------
Frank A. McPherson
* Director
- ---------------------------------------------------
William R. Rhodes
* Director
- ---------------------------------------------------
A.R. Sanchez
* Director
- ---------------------------------------------------
Franklin A. Thomas
/s/ ROBERT W. GOLDMAN
- ---------------------------------------------------
* Robert W. Goldman
Attorney-in-fact
</TABLE>
V
<PAGE> 42
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <C> <S>
3.1 -- Second Amended and Restated Certificate of Incorporation of
Conoco Inc.(1)
3.2 -- By-laws of Conoco Inc. as amended October 28, 1999(12)
4.1 -- Specimen Certificate for shares of Class A Common Stock of
the Registrant(3)
4.2 -- Specimen Certificate for shares of Class B Common Stock of
the Registrant(3)
4.3 -- Preferred Share Purchase Rights Agreement(3)
4.4 -- Amendment to Preferred Share Purchase Rights Agreement(4)
4.5 -- Second Amendment to Preferred Share Purchase Rights
Agreement(5)
4.6 -- Indenture between Conoco and the Trustee relating to the
debt securities(6)
5.1 -- Opinion of Baker & Botts, L.L.P. regarding the legality of
the shares being registered(7)
10.1 -- Employment Agreement, dated September 23, 1999, between
Conoco and Archie W. Dunham(7)
10.2 -- Conoco Inc. Key Employee Severance Plan as amended(7)
10.3 -- Conoco Inc. Key Employee Temporary Severance Plan as
amended(7)
10.4 -- Conoco Salary Deferral & Savings Restoration Plan as
amended(7)
10.5 -- Directors' Charitable Gift Plan as amended(7)
10.6 -- 1998 Stock and Performance Incentive Plan as amended May 12,
1999(8)
10.7 -- 1998 Key Employee Stock Performance Plan as amended May 12,
1999(9)
10.8 -- Deferred Compensation Plan for Nonemployee Directors as
amended May 12, 1999(10)
10.19 -- Form Indemnity Agreement with Directors(3)
21.1 -- List of Principal Subsidiaries of the Registrant(11)
23.1 -- Consent of PricewaterhouseCoopers LLP(12)
23.2 -- Consent of Baker & Botts, L.L.P.(13)
24 -- Power of Attorney(7)
</TABLE>
- ---------------
(1) Incorporated by reference to exhibit 3.1 filed as part of Conoco's Form
10-Q for the quarter ended September 30, 1998.
(2) Incorporated by reference to exhibit 3.2 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(3) Incorporated by reference to the exhibit of the same number filed as part
of Conoco's Registration Statement on Form S-1, File No. 333-60119.
(4) Incorporated by reference to Exhibit 4.6 of Conoco's Registration Statement
on Form S-8, File No. 333-65977.
(5) Incorporated by Reference to Exhibit 4.1 of Conoco's Form 10-Q for the
quarter ended June 30, 1999.
(6) Incorporated by reference to exhibit 4.1 to Conoco's Registration Statement
on Form S-3, File No. 333-72291.
(7) Previously filed.
(8) Incorporated by reference to exhibit 10.2 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(9) Incorporated by reference to exhibit 10.3 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(10) Incorporated by reference to exhibit 10.1 to Conoco's Form 10-Q for the
quarter ended March 31, 1999.
(11) Incorporated by reference to exhibit 21.1 filed as part of Conoco's Form
10-K for the year ended December 31, 1998.
(12) Filed herein.
(13) Contained in Exhibit 5.1.
<PAGE> 1
EXHIBIT 3.2
BY-LAWS
OF
CONOCO INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The annual meetings of
stockholders for the election of directors shall be held on such date and at
such time as shall be designated from time to time by the Board of Directors.
Any other proper business may be transacted at the annual meeting of
stockholders.
Section 3. Special Meetings. Unless otherwise required by law
or by the certificate of incorporation of the Corporation, as amended and
restated from time to time (including any
1
<PAGE> 2
certificates of designation with respect to any Preferred Stock, the
"Certificate of Incorporation"), special meetings of stockholders, for any
purpose or purposes, may only be called by the Board of Directors pursuant to a
resolution stating the purpose or purposes thereof or by the Chairman, if there
be one, and any power of stockholders to call a special meeting is specifically
denied. Written notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at such meeting. Only such
business shall be conducted at a special meeting as shall be specified in the
notice of meeting (or any supplement thereto).
Section 4. Adjournments. Any meeting of the stockholders may
be adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 5. Quorum. Unless otherwise required by law or the
Certificate of Incorporation, the presence in person or by proxy of the holders
of shares of capital stock entitled to cast a majority of all the votes which
could be cast at such meeting by the holders of all of the outstanding shares of
capital stock entitled to vote on every matter that is to be voted on at such
meeting shall constitute a quorum at all meetings of the stockholders for the
transaction of business. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum. If, however, such quorum
shall not be present or represented at any meeting of the
2
<PAGE> 3
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
in the manner provided in Section 4 of this Article II, until a quorum shall be
present or represented.
Section 6. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-Laws, any question brought before any
meeting of stockholders, other than the election of directors, shall be decided
by the vote of the holders of a majority of the votes of shares of capital stock
represented and entitled to vote thereat, voting as a single class. Every
reference in these ByLaws to a majority or other proportion of shares, or a
majority or other proportion of the votes of shares, of capital stock shall
refer to such majority or other proportion of the votes to which such shares of
capital stock are entitled as provided in the Certificate of Incorporation.
Votes of stockholders entitled to vote at a meeting of stockholders may be cast
in person or by proxy but no proxy shall be voted on or after three (3) years
from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a
meeting of stockholders, in such officer's discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
Section 7. No Action by Consent of Stockholders in Lieu of
Meeting. Any action required or permitted to be taken by the stockholders of the
Corporation may be effected only at a duly called annual or special meeting of
such holders and may not be effected by a consent in writing by such holders in
lieu of such a meeting.
Section 8. List of Stockholders Entitled to Vote. The officer
of the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
3
<PAGE> 4
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 9. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 8 of this Article II or the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 10. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided in
the Certificate of Incorporation of the Corporation with respect to the right of
holders of Preferred Stock of the Corporation to nominate and elect a specified
number of directors in certain circumstances. Nominations of persons for
election to the Board of Directors may be made at any annual meeting of
stockholders (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 10 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 10.
4
<PAGE> 5
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder; and (b)
as to the stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
5
<PAGE> 6
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination (s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 10. If the chairman of the annual meeting determines that a nomination
was not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
Section 11. Business at Annual Meetings. No business may be
transacted at an annual meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 11 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set forth in this Section 11.
6
<PAGE> 7
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
7
<PAGE> 8
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 11; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 11 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
Section 12. Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of the meetings of the stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) the determination of when the polls
shall open and close for any given matter to be voted on at the meeting; (iii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iv) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting shall
determine; (v) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (vi) limitations on the time allotted to questions or
comments by participants.
8
<PAGE> 9
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist initially of nine (9) members, the exact number of which
shall be not less than six (6) nor more than fifteen (15) as determined from
time to time by the Board of Directors as provided in the Certificate of
Incorporation. The directors shall be divided into three (3) classes, designated
Class I, Class II and Class III, as provided in the Certificate of
Incorporation. Any director may resign at any time upon written notice to the
Corporation. Directors need not be stockholders.
Section 2. Vacancies. Unless otherwise required by law or the
Certificate of Incorporation, vacancies arising through death, resignation,
removal, an increase in the number of directors or otherwise may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director, or by the stockholders if such vacancy resulted from
the action of stockholders (in which event such vacancy may not be filled by the
directors or a majority thereof), and the directors so chosen shall hold office
until the next election for such class and until their successors are duly
elected and qualified, or until their earlier death, resignation or removal.
Section 3. Duties and Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held without notice at such
time and at such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called by the
9
<PAGE> 10
Chairman, if there be one, the President, or by any director. Notice thereof
stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the time of the
meeting, by telephone, telegram or facsimile transmission not less than
twenty-four (24) hours before the time of the meeting, or on such shorter notice
as the person or persons calling such meeting may deem necessary or appropriate
in the circumstances.
Section 5. Quorum. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting of the time and
place of the adjourned meeting, until a quorum shall be present.
Section 6. Actions by Written Consent of the Board. Unless
otherwise provided in the Certificate of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation, members of the Board of
Directors of the Corporation, or any committee thereof, may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all
10
<PAGE> 11
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute presence in person at such
meeting.
Section 8. Standing Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board, shall appoint from among
its members (i) an Audit and Compliance Committee and (ii) a Compensation
Committee (together, the "Standing Committees") each consisting of three (3) (or
such greater number as the Board of Directors may designate) directors, to
perform the functions traditionally performed by such Board committees.
Section 9. Committees. The Board of Directors may designate
one or more other committees (in addition to the Standing Committees), each such
other committee to consist of one or more of the directors of the Corporation.
With respect to all Board committees, the Board of Directors may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. With respect
to all Board committees, in the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any Board committee, to the extent permitted
by law and provided in the resolution establishing such committee, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. Each
Board committee shall keep regular minutes and report to the Board of Directors
when required.
11
<PAGE> 12
Section 10. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
shall receive such compensation for their services as directors as shall be
determined by the Board of Directors. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of Board committees may be allowed like
compensation for attending committee meetings.
Section 11. Removal. A director may only be removed for cause,
such removal to be by the affirmative vote of the shares representing a majority
of the votes entitled to be cast by the Voting Stock. For purposes of these
By-Laws, Voting Stock shall mean the then outstanding shares of capital stock
entitled to vote generally in the election of directors and shall exclude any
class or series of capital stock only entitled to vote in the event of dividend
arrearages thereon, whether or not at the time of determination there are any
dividend arrearages. Unless the Board of Directors has made a determination that
removal is in the best interests of the Corporation (in which case the following
definition shall not apply), "cause" for removal of a director shall be deemed
to exist only if (i) the director whose removal is proposed has been convicted,
or when a director is granted immunity to testify when another has been
convicted, of a felony by a court of competent jurisdiction and such conviction
is no longer subject to direct appeal; (ii) such director has been found by the
affirmative vote of a majority of the directors then in office at any regular or
special meeting of the Board of Directors called for that purpose, or by a court
of competent jurisdiction to have been guilty of willful misconduct in the
performance of his duties to the Corporation in a matter of substantial
importance to the Corporation; or (iii) such director has been adjudicated by a
court of competent jurisdiction to be mentally incompetent, which mental
incompetency directly affects his ability as a director of the Corporation.
Notwithstanding the foregoing, whenever holders of
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outstanding shares of one or more series of Preferred Stock are entitled to
elect directors of the Corporation pursuant to the provisions applicable in the
case of arrearages in the payment of dividends or other defaults contained in
the resolution or resolutions of the Board of Directors providing for the
establishment of any such series, any such director of the Corporation so
elected may be removed in accordance with the provisions of such resolution or
resolutions.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, also may choose a Chairman
of the Board of Directors (who must be a director) and one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any
number of offices may be held by the same person, unless otherwise prohibited by
law or the Certificate of Incorporation. The officers of the Corporation need
not be stockholders of the Corporation nor, except in the case of the Chairman
of the Board of Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors, at its first
meeting held after each annual meeting of stockholders, shall elect the officers
of the Corporation who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their earlier
death, resignation or removal. Any officer elected by the Board of Directors may
be removed at any time by the affirmative vote of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors.
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Section 3. Voting Securities Owned by the Corporation. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in
the name of and on behalf of the Corporation by the President or any Vice
President or any other officer authorized to do so by the Board of Directors and
any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any
and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of
the Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature of
the President is required, the Chairman of the Board of Directors shall possess
the same power as the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as may from time to
time be assigned by these By-Laws or by the Board of Directors.
Section 5. President. The President shall be the chief
executive officer of the Corporation and, subject to the control of the Board of
Directors, shall have general supervision of the business of the Corporation and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President shall execute all bonds, mortgages, contracts and
other
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instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-Laws, the Board of Directors or
the President. In the absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of
the stockholders and the Board of Directors. The President shall also perform
such other duties and may exercise such other powers as may from time to time be
assigned to such officer by these By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or
in the President's absence or in the event of the President's inability or
refusal to act (and if there be no Chairman of the Board of Directors), the Vice
President, or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors), shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice President shall perform such
other duties and have such other powers as the Board of Directors from time to
time may prescribe. If there be no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for committees of the Board of
Directors when required. The Secretary shall give, or cause to be given, notice
of all meetings
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of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chairman of the Board of Directors or the President, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest to the affixing by such officer's signature. The Secretary shall see
that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be.
Section 8. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the Corporation
a bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties
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of the office of the Treasurer and for the restoration to the Corporation, in
case of the Treasurer's death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in the
Treasurer's possession or under the Treasurer's control belonging to the
Corporation.
Section 9. Assistant Secretaries. Assistant Secretaries, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of the Secretary's disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of the Treasurer's disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of the office
of Assistant Treasurer and for the restoration to the Corporation, in case of
the Assistant Treasurer's death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in the
Assistant Treasurer's possession or under the Assistant Treasurer's control
belonging to the Corporation.
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Section 11. Other Officers. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Uncertificated and Certificated Shares; Form of
Certificates. Effective at such time as the President or any Vice President or
the Treasurer of the Corporation designates in writing to the Corporate
Secretary and any transfer agents of the Corporation with respect to any class
of stock of the Corporation, the shares of such class shall be uncertificated
shares, provided that the foregoing shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation and
provided upon request every holder of uncertificated shares shall be entitled,
to the extent provided in Section 158 of the Delaware General Corporation Law,
to have a certificate signed, in the name of the Corporation (i) by the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost,
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stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or the owner's legal
representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only by the person named as
the holder thereof on the stock records of the Corporation by such person's
attorney lawfully constituted in writing, and in the case of shares represented
by a certificate upon the surrender of the certificate therefor, which shall be
canceled before a new certificate shall be issued. No transfer of stock shall be
valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred. To the extent designated by the President or any Vice
President or the Treasurer of the Corporation, the Corporation may recognize the
transfer of fractional uncertificated shares, but shall not otherwise be
required to recognize the transfer of fractional shares.
Section 5. Record Date.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
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record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60)
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
Section 6. Record Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise required by
law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Written notice may also
be given personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required
by law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. Attendance of a
person at a meeting, present in person or represented by proxy, shall constitute
a waiver of notice of such meeting, except where the person attends the meeting
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the Delaware General Corporation Law
and the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting of the Board of
Directors (or any action by written consent in lieu thereof in accordance with
Section
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6 of Article III hereof), and may be paid in cash, in property, or in shares of
the Corporation's capital stock. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the
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Corporation serving at the request of the Corporation as a director or officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim,
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issue or matter as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and officers, by
any person or persons having the authority to act on the matter on behalf of the
Corporation. To the extent, however, that a present or former director or
officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith, without the necessity of authorization in the
specific case.
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Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with respect to
any criminal action or proceeding, to have had no reasonable cause to believe
such person's conduct was unlawful, if such person's action is based on good
faith reliance on the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The provisions of
this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State of Delaware
for indemnification to the extent otherwise permissible under Sections 1 and 2
of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards
of conduct set forth in Section 1 or 2 of this Article VIII, as the case may
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be. Neither a contrary determination in the specific case under Section 3 of
this Article VIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 shall be given
to the Corporation promptly upon the filing of such application. If successful,
in whole or in part, the director or officer seeking indemnification shall also
be entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under the Certificate of Incorporation, any By-Law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII shall be made to the
fullest extent permitted by law. The provisions of this Article VIII shall not
be deemed to preclude the indemnification of any person who is not specified in
Section
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1 or 2 of this Article VIII but whom the Corporation has the power or obligation
to indemnify under the provisions of the Delaware General Corporation Law, or
otherwise.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued. For
purposes of this Article VIII, references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation
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which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5 of
this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
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ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended
or repealed, in whole or in part, and new By-Laws may be adopted (i) by the
affirmative vote of the shares representing a majority of the votes entitled to
be cast by the Voting Stock; provided, however, that any proposed alteration,
amendment or repeal of, or the adoption of any By-Law inconsistent with,
Sections 3, 7, 10 or 11 of Article II of these By-Laws or Sections 1, 2 or 11 of
Article III of these By-Laws or this sentence, by the stockholders shall require
the affirmative vote of shares representing (x) not less than 80% of the votes
entitled to be cast by the Voting Stock and, in addition, (if there are multiple
classes of Common Stock outstanding), (y) a majority of the votes entitled to be
cast by the holders of each class of Common Stock, voting separately by class;
and provided further, however, that in the case of any such stockholder action
at a meeting of stockholders, notice of the proposed alteration, amendment,
repeal or adoption of the new By-Law or By-Laws must be contained in the notice
of such meeting, or (ii) by action of the Board of Directors of the Corporation.
The provisions of this Section 1 are subject to any contrary provisions and any
provisions requiring a greater vote that are set forth in the Certificate of
Incorporation.
Section 2. Entire Board of Directors. As used in these By-Laws
generally, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no vacancies.
* * *
Adopted as of: October 18, 1998
Last Amended as of: October 28, 1999
29
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Amendment
No. 1 to Form S-1 on Form S-3 of Conoco Inc. (No. 333-88573) of our report dated
February 15, 1999 relating to the financial statements which appear in Conoco
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998, as
amended on March 12, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
October 29, 1999
