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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERADA HESS CORPORATION
(exact name of registrant as specified in its charter)
Delaware 13-4921002
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
1185 Avenue of the Americas
New York, NY 10036
(Address of Principal Executive Offices and Zip Code)
AMERADA HESS CORPORATION
AMENDED AND RESTATED 1995 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
J. BARCLAY COLLINS II, ESQ.
Executive Vice President
and General Counsel
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
(212) 997-8500
(Name, address and telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share* price* fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
(par value
$1.00). . . . 5,000,000 55.406 $277,030,000 $73,136
shares
</TABLE>
* Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933 based upon the
average of the high and low prices reported on the composite transactions
reporting system of the New York Stock Exchange on January 11, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by References
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The latest annual report of Amerada Hess Corporation (the
"Company") filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") which contains, either directly
or indirectly by incorporation by reference, certified financial
statements for the Company's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in paragraph (a) above.
(c) the description of the Company's Common Stock contained in
registration statement no. 33-47639 filed by the Company under the
Securities Act of 1933 (the "Securities Act").
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
As of January 18, 2000 Mr. Roger B. Oresman, a consulting partner of
Milbank, Tweed, Hadley & McCloy LLP and a director of the Company, beneficially
owned 11,148 shares of Company Common Stock, par value $1.00 per share.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law confers broad
powers upon a corporation incorporated in that State with
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respect to the indemnification of any person against liabilities incurred by
reason of the fact that he is or was a director, officer, employee or agent of
such corporation or other business entity. The provisions of Section 145 are not
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement or otherwise.
The By-Laws of the Company contain a provision entitling directors,
officers, or employees of the Company, or of any other company which he serves
or served as such at the request of the Company, to be indemnified by the
Company against any attorney's fees, disbursements and related expenses
("expenses") and amounts paid in settlement, judgments and fines ("liability")
paid or incurred by him in connection with or resulting from any threatened or
actual claim, action, suit or proceeding (whether brought by or in the right of
the Company or such other company or otherwise), civil, criminal, administrative
or investigative, in which he may be involved, as a party or otherwise, by
reason of his being or having been a director, officer or employee of the
Company or such other company, or by reason of any action taken or not taken in
his capacity as such director, officer or employee, whether or not he continues
to be such at the time such liability or expenses shall have been paid or
incurred. Indemnification is permitted to the extent not prohibited by law.
Any person referred to above who has been wholly successful, on the
merits or otherwise, with respect to any claim, action, suit or proceeding of
the character described above shall be reimbursed by the Company for his
reasonable expense.
Any other person claiming indemnification under the By-Laws shall be
entitled to receive reimbursement from the Company for any reasonable expense
and for any liability (other than any amount paid to the Company) if independent
counsel or other disinterested persons selected by the Board of Directors
delivers to the Company its written finding that such person acted in good faith
in what he reasonably believed to be the best interests of the Company, and with
respect to any criminal action or proceeding, reasonably believed that his
conduct was lawful.
The By-Laws of the Company state that rights of indemnification
provided therein are in addition to any rights to which any director, officer or
employee may be entitled by contract or as a matter of law.
The Company maintains a Directors and Officers Insurance and Company
Reimbursement Policy which covers directors and officers of the Company.
Pursuant to the terms of the policy, the insurers will pay on behalf of the
individual insureds all losses, subject to certain exceptions and deductibles,
which the individual insureds may become obliged to pay by reason of any actual
or alleged breach of duty, neglect, error, misstatement, misleading statement,
omission or act, while acting in their
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respective capacities as directors or officers of the Company to the extent the
Company has not indemnified such individuals. In addition, the insurer will
reimburse the Company for all losses, subject to certain exceptions and
deductibles, in respect of which the Company has indemnified such individual
insureds for claims made against them by reason of the acts. The insurers'
maximum liability under the policy is $[30,000,000].
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4 Amerada Hess Corporation Amended and Restated
1995 Long-Term Incentive Plan.
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP.
23 (a) Consent of Ernst & Young.
(b) Consent of Milbank, Tweed, Hadley & McCloy LLP (included in
Exhibit 5).
24 Powers of Attorney (included on signature page).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
and 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 pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC 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
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policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Document
- ----------- --------
<S> <C>
4 Amerada Hess Corporation Amended and Restated 1995
Long-Term Incentive Plan.
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP.
23 (a) Consent of Ernst & Young.
(b) Consent of Milbank, Tweed, Hadley & McCloy LLP (included in
Exhibit 5).
24 Powers of Attorney (included on signature page).
</TABLE>
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON DECEMBER 30, 1999.
AMERADA HESS CORPORATION
BY s/ John Y. Schreyer
-------------------------------------
(JOHN Y. SCHREYER)
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED. EACH PERSON WHOSE SIGNATURE APPEARS BELOW
HEREBY AUTHORIZES EACH OF JOHN B. HESS, J. BARCLAY COLLINS II AND JOHN Y.
SCHREYER AS ATTORNEY-IN-FACT TO SIGN IN HIS OR HER NAME AND BEHALF, INDIVIDUALLY
AND IN EACH CAPACITY DESIGNATED BELOW, AND TO FILE ANY AMENDMENTS, INCLUDING
POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT AND ANY REGISTRATION
STATEMENT FOR THE SAME OFFERING THAT IS TO BE EFFECTIVE UPON FILING PURSUANT TO
RULE 462(B) OF THE SECURITIES ACT OF 1933, AND TO FILE THE SAME, WITH ALL
EXHIBITS THERETO, AND ALL DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES
AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEY-IN-FACT AND AGENT FULL
POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND
NECESSARY TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY AND TO ALL INTENTS AND
PURPOSES AS HE OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND
CONFIRMING ALL THAT THE SAID ATTORNEY-IN-FACT AND AGENT MAY LAWFULLY DO OR CAUSE
TO BE DONE BY VIRTUE HEREOF.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director, Chairman of
the Board and
/s/ John B. Hess Chief Executive Officer
................................ (Principal Executive Officer) December 30, 1999
(John B. Hess)
/s/ W.S.H. Laidlaw Director, President and Chief
................................ Chief Operating Officer December 30, 1999
(W.S.H. Laidlaw)
/s/ Nicholas F. Brady
................................ Director December 30, 1999
(Nicholas F. Brady)
/s/ J. Barclay Collins II
................................ Director December 30, 1999
(J. Barclay Collins II)
/s/ Peter S. Hadley
................................ Director December 30, 1999
(Peter S. Hadley)
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ Edith E. Holiday
............................... Director December 30, 1999
(Edith E. Holiday)
/s/ William R. Johnson
................................ Director December 30, 1999
(William R. Johnson)
/s/ Thomas H. Kean
............................... Director December 30, 1999
(Thomas H. Kean)
/s/ Frank A. Olson
................................ Director December 30, 1999
(Frank A. Olson)
/s/ Roger B. Oresman
................................ Director December 30, 1999
(Roger B. Oresman)
Director, Executive Vice
President and
Chief Financial Officer
/s/ John Y. Schreyer (Principal Accounting and
................................ Financial Officer) December 30, 1999
(John Y. Schreyer)
/s/ William I. Spencer
................................ Director December 30, 1999
(William I. Spencer)
/s/ Robert N. Wilson
................................ Director December 30, 1999
(Robert N. Wilson)
/s/ Robert F. Wright
................................ Director December 30, 1999
(Robert F. Wright)
</TABLE>
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EXHIBIT 4
AMERADA HESS CORPORATION
AMENDED AND RESTATED
1995 LONG-TERM INCENTIVE PLAN
SECTION 1. PURPOSE. The purpose of this Long-Term Incentive Plan (the "Plan")
of Amerada Hess Corporation (together with any successor thereto, the
"Corporation") is (a) to promote the identity of interests between shareholders
and employees of the Corporation by encouraging and creating significant
ownership of Common Stock of the Corporation by officers and other salaried
employees of the Corporation and its subsidiaries; (b) to enable the Corporation
to attract and retain qualified officers and employees who contribute to the
Corporation's success by their ability, ingenuity and industry; and (c) to
provide meaningful long-term incentive opportunities for officers and other
employees who are responsible for the success of the Corporation and who are in
a position to make significant contributions toward its objectives.
SECTION 2. DEFINITIONS. In addition to the terms defined elsewhere in the
Plan, the following shall be defined terms under the Plan:
2.01. "Award" means any Performance Award, Option, Stock Appreciation Right,
Restricted Stock, Deferred Stock, Dividend Equivalent, or any other right or
interest relating to Shares or cash, granted to a Participant under the Plan.
2.02. "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
2.03. "Board" means the Board of Directors of the Corporation.
2.04. "Change of Control" and related terms are defined in Section 9.
2.05. "Code" means the Internal Revenue Code of 1986, as amended from time to
time. References to any provision of the Code shall be deemed to include
successor provisions thereto and regulations thereunder.
2.06. "Committee" means the Compensation and Incentive Awards Committee of
the Board, or such other Board committee as may be designated by the Board to
administer the Plan, or any subcommittee of either; provided, however, that the
Committee, and any subcommittee thereof, shall consist of three or more
directors (or such lesser number as may be permitted by applicable law or rule),
each of whom is a "disinterested person" within the meaning of the applicable
provisions of Rule 16b-3 under the Exchange Act and an "outside director" within
the meaning of Section 162(m)(3)(C) of the Code and Treasury Regulation Section
1.162-27(e)(3), as amended from time to time.
2.07. "Corporation" is defined in Section 1.
2.08. "Covered Employee" has the same meaning as set forth in section 162(m)
of the Code, and successor provisions.
2.09. "Deferred Stock" means a right, granted to a Participant under Section
6.05, to receive Shares at the end of a specified deferral period.
2.10. "Dividend Equivalent" means a right, granted to a Participant under
Section 6.03, to receive cash, Shares, other Awards, or other property equal in
value to dividends paid with respect to a specified number of Shares.
2.11. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time. References to any provision of the Exchange Act shall be
deemed to include successor provisions thereto and any rules and regulations
thereunder.
2.12. "Fair Market Value" means, with respect to Shares, Awards, or other
property, the fair market value of such Shares, Awards,
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or other property determined by such methods or procedures as shall be
established from time to time by the Committee. Unless otherwise determined by
the Committee, the Fair Market Value of Shares as of any date shall be the
closing sales price on that date of a Share as reported in the New York Stock
Exchange Composite Transaction Report; provided, that if there were no sales on
the valuation date but there were sales on dates within a reasonable period both
before and after the valuation date, the Fair Market Value is the weighted
average of the closing prices on the nearest date before and the nearest date
after the valuation date. The average is to be weighted inversely by the
respective numbers of trading days between the selling dates and the valuation
date.
2.13. "Immediate Family Member" means, with respect to any Participant, any
of such Participant's spouse, children, parents or siblings.
2.14. "Incentive Stock Option" means an Option that is intended to meet the
requirements of Section 422 of the Code.
2.15. "Non-Qualified Stock Option" means an Option that is not intended to be
an Incentive Stock Option.
2.16. "Option" means a right, granted to a Participant under Section 6.06, to
purchase Shares, other Awards, or other property at a specified price during
specified time periods. An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.
2.17. "Participant" means a person who has been granted an Award under the
Plan.
2.18. "Performance Award" means a right, granted to a Participant under
Section 6.02, to receive cash, Shares, other Awards, or other property the
payment of which is contingent upon achievement of performance goals specified
by the Committee.
2.19. "Performance-Based Restricted Stock" means Restricted Stock that is
subject to a risk of forfeiture if specified performance criteria are not met
within the restriction period.
2.20. "Plan" is defined in Section 1.
2.21. "Restricted Stock" means Shares granted to a Participant under Section
6.04, that are subject to certain restrictions and to a risk of forfeiture.
2.22. "Rule 16b-3" means Rule 16b-3, as from time to time amended and
applicable to Participants, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act.
2.23. "Shares" means the Common Stock, $1.00 par value per share, of the
Corporation and such other securities of the Corporation as may be substituted
for Shares or such other securities pursuant to Section 10.
2.24. "Special Deferred Stock" means Deferred Stock granted under Subsection
6.05(i)(b), subject to the maximum Share limitation set forth in Section 7.02.4.
2.25. "Special Restricted Stock" means Restricted Stock granted under
Subsection 6.04(i)(b), subject to the maximum Share limitation set forth in
Section 7.02.4.
2.26. "Stock Appreciation Right" means a right, granted to a Participant
under Section 6.07, to be paid an amount measured by the appreciation in the
Fair Market Value of Shares from the date of grant to the date of exercise of
the right, with payment to be made in cash, Shares, other Awards, or other
property as specified in the Award or determined by the Committee.
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2.27. "Subsidiary" means any corporation (other than the Corporation) with
respect to which the Corporation owns, directly or indirectly, 50% or more of
the total combined voting power for all classes of stock. In addition, any other
related entity may be designated by the Board or the Committee as a Subsidiary,
provided the Board or the Committee determines that the Corporation has a
substantial ownership interest in such entity.
2.28. "Year" means a calendar year.
SECTION 3. ADMINISTRATION.
3.01. Authority of the Committee. The Plan shall be administered by the
Committee. The Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions of
the Plan:
(i) to select and designate Participants;
(ii) to designate Subsidiaries;
(iii) to determine the type or types of Awards to be granted to each
Participant;
(iv) to determine the number of Awards to be granted, the number of Shares to
which an Award will relate, the terms and conditions of any Award granted
under the Plan (including, but not limited to, any exercise price, grant
price, or purchase price, any restriction or condition, any schedule for
lapse of restrictions or conditions relating to transferability or
forfeiture, exercisability, or settlement of an Award, and waivers or
accelerations thereof, and waiver of performance conditions relating to an
Award, based in each case on such considerations as the Committee shall
determine), and all other matters to be determined in connection with an
Award;
(v) to determine whether, to what extent, and under what circumstances an
Award may be settled, or the exercise price of an Award may be paid, in cash,
Shares, other Awards, or other property, or an Award may be cancelled,
forfeited, or surrendered;
(vi) to determine whether, to what extent, and under what circumstances
cash, Shares, other Awards, or other property payable with respect to an
Award will be deferred either automatically, at the election of the
Committee, or pursuant to an agreement between the Corporation and the
Participant;
(vii) to prescribe the form of each Award Agreement, which need not be
identical for each Participant;
(viii) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary or
advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any
Award, rules and regulations, Award Agreement, or other instrument hereunder;
and
(x) to make all other decisions and determinations as may be required under
the terms of the Plan or as the Committee may deem necessary or advisable for
the administration of the Plan.
3.02. Manner of Exercise of Committee Authority. Unless authority is
specifically reserved to the Board under the terms of the Plan, or applicable
law, the Committee shall have sole discretion in exercising such authority under
the Plan. Any action of the Committee with respect to the Plan shall be final,
conclusive, and binding on all persons, including the Corporation, Subsidiaries,
Participants, any person claiming any rights under the Plan from or through any
Participant, and shareholders. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed
as limiting any power or authority of the Committee. The Committee may delegate
to officers or managers of the Corporation or any Subsidiary the authority,
subject to such terms as the Committee shall determine, to perform
administrative functions under the Plan.
3.03. Limitation of Liability. Each member of the Committee shall be entitled
to, in good faith, rely or act upon any report or other information furnished to
him by any officer or other employee of the Corporation or any Subsidiary, the
Corporation's independent
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certified public accountants, or any executive compensation consultant or other
professional retained by the Corporation to assist in the administration of the
Plan. No member of the Committee, nor any officer or employee of the Corporation
acting on behalf of the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to the
Plan, and all members of the Committee and any officer or employee of the
Corporation acting on their behalf, shall, to the extent permitted by law, be
fully indemnified and protected by the Corporation with respect to any such
action, determination, or interpretation.
SECTION 4. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided in
Section 10, the total number of Shares reserved and available for Awards under
the Plan during the term hereof shall be 9.5 million shares. For purposes of
this Section 4, the number of and time at which Shares shall be deemed to be
subject to Awards and therefore counted against the number of Shares reserved
and available under the Plan shall be the earliest date at which the Committee
can reasonably estimate the number of Shares to be distributed in settlement of
an Award or with respect to which payments will be made; provided, however,
that, subject to the requirements of Rule 16b-3, the Committee may adopt
procedures for the counting of Shares relating to any Award for which the number
of Shares to be distributed or with respect to which payment will be made cannot
be fixed at the date of grant to ensure appropriate counting, avoid double
counting (in the case of tandem or substitute awards), and provide for
adjustments in any case in which the number of Shares actually distributed or
with respect to which payments are actually made differs from the number of
Shares previously counted in connection with such Award.
If any Shares to which an Award relates are forfeited or the Award is settled
or terminates without a distribution of Shares (whether or not cash, other
Awards, or other property is distributed with respect to such Award), any Shares
counted against the number of Shares reserved and available under the Plan with
respect to such Award shall, to the extent of any such forfeiture, settlement or
termination, again be available for Awards under the Plan; provided, however,
that such Shares shall be available for issuance only to the extent that the
related award would be exempt under Rule 16b-3.
SECTION 5. ELIGIBILITY. Awards may be granted only to individuals who are
officers or other salaried employees (including employees who are also
directors) of the Corporation or a Subsidiary; provided, however, that no Award
shall be granted to any member of the Committee.
SECTION 6. SPECIFIC TERMS OF AWARDS.
6.01. General. Awards may be granted on the terms and conditions set forth in
this Section 6. In addition, the Committee may impose on any Award or the
exercise thereof, at the date of grant or thereafter (subject to Section 11.02),
such additional terms and conditions, not inconsistent with the provisions of
the Plan, as the Committee shall determine, including without limitation the
acceleration of vesting of any Awards or terms requiring forfeiture of Awards in
the event of termination of employment by the Participant. Except as provided in
Section 7.04, only services may be required as consideration for the grant of
any Award.
6.02. Performance Awards. Subject to the provisions of Sections 7.01 and
7.02, the Committee is authorized to grant Performance Awards to Participants on
the following terms and conditions:
(i) Awards and Conditions. A Performance Award shall confer upon the
Participant rights, valued as determined by the Committee, and payable to, or
exercisable by, the Participant to whom the Performance Award is granted, in
whole or in part, as determined by the Committee, conditioned upon the
achievement of performance criteria determined by the Committee.
(ii) Performance Period. The period of time with respect to which it is to
be determined whether the performance criteria applicable to a Performance
Award have been achieved shall not be less than one year, commencing not
earlier than the date of grant of such Performance Award.
(iii) Other Terms. A Performance Award shall be denominated in Shares and
may be payable in cash, Shares, other Awards, or other property, and have
such other terms as shall be determined by the Committee.
6.03. Dividend Equivalents. The Committee is authorized to grant Dividend
Equivalents to Participants. The Committee may provide that Dividend Equivalents
shall be paid or distributed when accrued or shall be deemed to have been
reinvested in additional Shares or Awards, or otherwise reinvested.
6.04. Restricted Stock. The Committee is authorized to grant Restricted
Stock to Participants on the following terms and conditions:
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(i) Issuance and Restrictions.
(a) Restricted Stock (other than Special Restricted Stock) shall be
subject to such restrictions on transferability and other restrictions as the
Committee may impose (including, without limitation, limitations on the right
to vote such Restricted Stock or the right to receive dividends thereon),
which restrictions shall lapse either: (x) in full with respect to all Shares
underlying such Award of Restricted Stock at the expiration of a period not
less than three years from the date of grant of such Award; or (y)
proportionally in equal installments of the Shares underlying such Award of
Restricted Stock over a period not less than three years from the date of
grant of such Award, as the Committee shall determine, except that such
restrictions may lapse earlier in the event of death, disability or
retirement of an awardee, on such terms as the Committee shall determine, or
in accordance with Section 9 hereof. The Committee shall not have the
authority to otherwise accelerate the vesting of an Award of Restricted Stock
under this Section 6.04(i)(a).
(b) Special Restricted Stock shall be subject to such restrictions on
transferability and other restrictions as the Committee may impose
(including, without limitation, limitations on the right to vote Special
Restricted Stock or the right to receive dividends thereon) which
restrictions may lapse separately or in combination at such times, under such
circumstances, in such installments, or otherwise, as the Committee shall
determine.
(ii) Forfeiture. Performance-Based Restricted Stock shall be forfeited
unless preestablished performance criteria specified by the Committee are met
during the applicable restriction period. Except as otherwise determined by
the Committee, upon termination of employment (as determined under criteria
established by the Committee) during the applicable restriction period,
Restricted Stock that is at that time subject to restrictions shall be
forfeited and returned to the Corporation; provided, however, that to the
extent consistent with Section 6.04(i)(a) above, the Committee may provide,
by rule or regulation or in any Award Agreement, or may determine in any
individual case after the award has been made, that restrictions or
forfeiture conditions relating to Restricted Stock will be waived in whole or
in part in the event of terminations resulting from specified causes.
(iii) Certificates of Shares. Restricted Stock granted under the Plan may
be evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Stock are registered in the name of the Participant,
such certificates shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock, the
Corporation or an escrow agent acting on behalf of the Corporation shall
retain physical possession of the certificates, and the Participant shall
deliver a stock power to the Corporation or such agent, endorsed in blank,
relating to the Restricted Stock.
(iv) Dividends. Unless otherwise determined by the Committee, cash
dividends and other distributions made or paid with respect to the Shares
underlying an Award of Restricted Stock or Performance-Based Restricted Stock
shall be held in escrow, and may (but need not be) reinvested as determined
by the Committee. Such dividends and other distributions shall be paid to the
Participant, together with interest or other earnings thereon (if any), at
the time the Shares are delivered to the Participant. Shares distributed in
connection with a stock split or stock dividend, and other property
distributed as a dividend or other distribution, shall be subject to
restrictions and a risk of forfeiture to the same extent as the Restricted
Stock or Performance-Based Restricted Stock with respect to which such stock
or other property has been distributed.
6.05. Deferred Stock. The Committee is authorized to grant Deferred Stock
to Participants, on the following terms and conditions:
(i) Award and Restrictions.
(a) Delivery of Shares will occur upon expiration of the deferral period
specified for Deferred Stock (other than Special Deferred Stock) by the
Committee (or, if permitted by the Committee, as elected by the awardee),
which deferral period shall not expire earlier than three years after the
date of grant of such Award of Deferred Stock, except that such deferral
period may expire earlier in the event of death, disability or retirement of
an awardee, on such terms as the Committee shall determine, or in accordance
with Section 9 hereof. In addition, Deferred Stock shall be subject to such
other restrictions as the Committee may impose, which other restrictions
shall lapse at the expiration of such deferral period. The Committee shall
not have the authority to otherwise accelerate the expiration of the deferral
period for an Award of Deferred Stock under Section 6.05(i)(a).
(b) Delivery of Shares will occur upon expiration of the deferral period
specified for Special Deferred Stock by the Committee
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(or, if permitted by the Committee, by the awardee). In addition, Special
Deferred Stock shall be subject to such restrictions as the Committee may
impose, which restrictions may lapse at the expiration of the deferral
period or at earlier specified times, separately or in combination, in
installments, or otherwise, as the Committee shall determine.
(ii) Forfeiture. Except as otherwise determined by the Committee, upon
termination of employment (as determined under criteria established by the
Committee) during the applicable deferral period or portion thereof (as
provided in the Award Agreement evidencing the Deferred Stock), all Deferred
Stock that is at that time subject to deferral (other than a deferral at the
election of the Participant) shall be forfeited; provided, however, that to
the extent consistent with Section 6.05(i)(a) above, the Committee may
provide, by rule or regulation or in any Award Agreement, or may determine in
any individual case, that restrictions or forfeiture conditions relating to
Deferred Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee may in other
cases waive in whole or in part the forfeiture of Deferred Stock.
6.06. Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share purchasable under an
Option shall be determined by the Committee; provided, however, that, except
as provided in Section 10, such exercise price shall be not less than the
Fair Market Value of a Share on the date of grant of such Option (or such
higher exercise price as may be required under Section 422 of the Code). On
and after the date of grant of an Option hereunder, the Committee shall not
have the authority to amend such Option to reduce the exercise price thereof,
except as provided in Section 10.
(ii) Time and Method of Exercise. The Committee shall determine the time or
times at which an Option may be exercised in whole or in part, the methods by
which such exercise price may be paid or deemed to be paid, the form of such
payment, including, without limitation, cash, Shares, other Awards or awards
issued under other Corporation plans, or other property (including notes or
other contractual obligations of Participants to make payment on a deferred
basis, such as through "cashless exercise" arrangements), and the methods by
which Shares will be delivered or deemed to be delivered to Participants.
Options shall expire not later than ten years after the date of grant.
(iii) Incentive Stock Options. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of
Section 422 of the Code, including but not limited to the requirement that no
Incentive Stock Option shall be granted more than ten years after the
effective date of the Plan. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options
shall be interpreted, amended, or altered, nor shall any discretion or
authority granted under the Plan be exercised, so as to disqualify either the
Plan or any Incentive Stock Option under Section 422 of the Code. In the
event a Participant voluntarily disqualifies an Option as an Incentive Stock
Option, the Committee may, but shall not be obligated to, make such
additional Awards or pay bonuses as the Committee shall deem appropriate to
reflect the tax savings to the Corporation which result from such
disqualification.
6.07. Stock Appreciation Rights. The Committee is authorized to grant Stock
Appreciation Rights to Participants on the following terms and conditions:
(i) Right to Payment. A Stock Appreciation Right shall confer on the
Participant to whom it is granted a right to receive, upon exercise thereof,
the excess of (A) the Fair Market Value of one Share on the date of exercise
(or, if the Committee shall so determine in the case of any such right, other
than one related to an Incentive Stock Option, the Fair Market Value of one
Share at any time during a specified period before or after the date of
exercise or the Change of Control Price as defined in Section 9.03) over (B)
the base price of the Stock Appreciation Right as determined by the Committee
as of the date of grant of the Stock Appreciation Right, which shall be not
less than the Fair Market Value of one Share on the date of grant. On and
after the date of grant of a Stock Appreciation Right hereunder, the
Committee shall not have the authority to reduce the base price of such Stock
Appreciation Right, except as provided in Section 10 hereof.
(ii) Other Terms. The Committee shall determine the time or times at which
a Stock Appreciation Right may be exercised in whole or in part, the method
of exercise, method of settlement, form of consideration payable in
settlement, method by which Shares will be delivered or deemed to be
delivered to Participants, and any other terms and conditions of any Stock
Appreciation Right. Limited Stock Appreciation Rights that may be exercised
only upon the occurrence of a Change of Control (as such term is defined in
Section 9.02) or as otherwise defined by the Committee) may be granted under
this Section 6.07. Stock Appreciation
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Rights shall expire not later than ten years after the date of grant.
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
7.01. Performance-Based Awards. Performance Awards and Performance-Based
Restricted Stock are intended to be "qualified performance-based compensation"
within the meaning of section 162(m) of the Code and shall be paid solely on
account of the attainment of one or more preestablished, objective performance
goals within the meaning of section 162(m) and the regulations thereunder.
Until otherwise determined by the Committee, the performance goal shall be the
attainment of preestablished levels of net income, market price per share,
return on equity, return on capital employed, cash flow, earnings per share,
book value per share or total shareholder return.
The payout of any such Award to a Covered Employee may be reduced, but not
increased, based on the degree of attainment of other performance criteria or
otherwise at the discretion of the Committee.
7.02. Maximum Awards. The maximum Share amounts in this Section 7.02 are
subject to adjustment under Section 10 and are subject to the Plan maximum under
Section 4.
7.02.1. Performance-Based Awards. The maximum amount payable in respect of
Performance Awards and Performance-Based Restricted Stock in any Year may
not exceed 100,000 Shares (or the then equivalent Fair Market Value thereof)
in the case of any individual Participant.
7.02.2. Stock Options and SARS. Each individual Participant may not receive
in any Year Awards of Options or Stock Appreciation Rights exceeding 250,000
Shares.
7.02.3. Restricted Stock and Performance-Based Awards. A maximum of
2,000,000 Shares may be made subject to Awards of Restricted Stock,
Performance Awards and Performance-Based Restricted Stock, in the aggregate,
under the Plan during the term hereof.
7.02.4. Special Restricted Stock and Special Deferred Stock. A maximum of
225,000 Shares may be made subject to Awards of Special Restricted Stock and
Special Deferred Stock, in the aggregate, under the Plan during the term
hereof.
7.03. Stand-Alone, Additional, Tandem, and Substitute Awards. Awards granted
under the Plan may, in the discretion of the Committee, be granted either alone
or in addition to or in tandem with any other Award granted under the Plan or
any award granted under any other plan of the Corporation, any Subsidiary, or
any business entity to be acquired by the Corporation or a Subsidiary, or any
other right of a Participant to receive payment from the Corporation or any
Subsidiary. No Award may be granted in substitution for any other Award
theretofore granted under the Plan, and no Award may be retroactively granted in
tandem with any other Award theretofore granted under the Plan at an exercise or
base price less than that of such other previously granted Award. Awards granted
in addition to or in tandem with other Awards or awards may be granted either as
of the same time as or a different time from the grant of such other Awards or
awards
7.04. Exchange Provisions. The Committee may at any time offer to exchange or
buy out any previously granted Award for a payment in cash, Shares, or other
property based on such terms and conditions as the Committee shall determine and
communicate to the Participant at the time that such offer is made.
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7.05. Term of Awards. The term of each Award shall be for such period as may
be determined by the Committee; provided, however, that in no event shall the
term of any Option or a Stock Appreciation Right granted in tandem therewith
exceed a period of ten years from the date of its grant (or such shorter period
as may be required under Section 422 of the Code).
7.06. Form of Payment Under Awards. Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Corporation or a
subsidiary upon the grant or exercise of an Award may be made in such forms as
the Committee shall determine, including without limitation, cash, Shares, other
Awards, or other property, and may be made in a single payment or transfer, in
installments, or on a deferred basis. Such payments may include, without
limitation, provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of Dividend
Equivalents in respect of installment or deferred payments denominated in
Shares.
7.07. Loan Provisions. With the consent of the Committee, and subject to
compliance with applicable laws and regulations, the Corporation may make,
guarantee, or arrange for, a loan or loans to a Participant with respect to the
exercise of any Option or other payment in connection with any Award, including
the payment by a Participant of any or all federal, state, or local income or
other taxes due in connection with any Award. Subject to such limitations, the
Committee shall have full authority to decide whether to make a loan or loans
hereunder and to determine the amount, terms, and provisions of any such loan or
loans, including the interest rate to be charged in respect of any such loan or
loans, whether the loan or loans are to be with or without recourse against the
borrower, the terms on which the loan is to be repaid and conditions, if any,
under which the loan or loans may be forgiven. Nothing in this Section shall be
construed as implying that the Committee shall or will offer such loans.
SECTION 8. GENERAL RESTRICTIONS APPLICABLE TO AWARDS.
8.01. Restrictions Under Rule 16b-3.
8.01.1. Six-Month Holding Period. Unless a Participant could otherwise
transfer an equity security, derivative security, or Shares issued upon
exercise of a derivative security granted under the Plan without incurring
liability under Section 16(b) of the Exchange Act, (i) an equity security
issued under the Plan, other than an equity security issued upon exercise or
conversion of a derivative security granted under the Plan, shall be held for
at least six months from the date of acquisition; (ii) with respect to a
derivative security issued under the Plan, at least six months shall elapse
from the date of acquisition of the derivative security to the date of
disposition of the derivative security (other than upon exercise or
conversion) or its underlying equity security; and (iii) any Award in the
nature of a Stock Appreciation Right must be held for six months from the
date of grant to the date of cash settlement.
8.01.2. Nontransferability. Awards which constitute derivative securities
(including any option, stock appreciation right, or similar right) shall not
be transferable by a Participant except upon such terms and conditions as the
Committee may determine to an Immediate Family Member of such Participant, or
to a trust, partnership or limited liability company all of whose
beneficiaries, partners or members, as the case may be, are Immediate Family
Members, or by will or the laws of descent and distribution (except pursuant
to a beneficiary designation authorized under Section 8.02) or, if then
permitted under Rule 16b-3, pursuant to a qualified domestic relations order
as defined under the Code or Title I of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder, and, in the case
of an Incentive Stock Option or, if then required by Rule 16b-3, any other
derivative security granted under the Plan, shall be exercisable during the
lifetime of a Participant only by such Participant or his legal
representative.
8.01.3. Compliance with Rule 16b-3. It is the intent of the Corporation
that this Plan comply in all respects with Rule 16b-3 in connection with any
Award granted to a person who is subject to Section 16 of the Exchange Act.
Accordingly, if any provision of this Plan or any Award Agreement does not
comply with the requirements of Rule 16b-3 as then applicable to any such
person, such provision shall be construed or deemed amended to the extent
necessary to conform to such requirements with respect to such person.
8.02. Limits on Transfer of Awards; Beneficiaries. Except as provided in
Section 8.01.2, no right or interest of a Participant in any Award shall be
pledged, encumbered or hypothecated to or in favor of any party (other than the
Corporation or a Subsidiary), or shall be subject to any lien, obligation, or
liability of such Participant to any party (other than the Corporation or a
Subsidiary). Unless
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otherwise determined by the Committee (subject to the requirements of Section
8.01.2), no Award subject to any restriction shall be assignable or transferable
by a Participant otherwise than by will or the laws of descent and distribution
(except to the Corporation under the terms of the Plan); provided, however, that
a Participant may, in the manner established by the Committee, designate a
beneficiary or beneficiaries to exercise the rights of the Participant, and to
receive any distribution, with respect to any Award, upon the death of the
Participant. A beneficiary, guardian, legal representative, or other person
claiming any rights under the Plan from or through any Participant shall be
subject to all terms and conditions of the Plan and any Award Agreement
applicable to such Participant or Agreement applicable to such, except to the
extent the Plan and such Award Agreement or agreement otherwise provide with
respect to such persons, and to any additional restrictions deemed necessary or
appropriate by the Committee.
8.03. Registration and Listing Compliance. The Corporation shall not be
obligated to deliver any Award or distribute any Shares with respect to any
Award in a transaction subject to regulatory approval, registration, or any
other applicable requirement of federal or state law, or subject to a listing
requirement under any listing or similar agreement between the Corporation and
any national securities exchange, until such laws, regulations, and contractual
obligations of the Corporation have been complied with in full, although the
Corporation shall be obligated to use its best efforts to obtain any such
approval and comply with such requirements as promptly as practicable.
8.04. Share Certificates. All certificates for Shares delivered under the
Plan pursuant to any Award or the exercise thereof shall be subject to such
stop-transfer order and other restrictions as the Committee may deem advisable
under applicable federal or state laws, rules and regulations thereunder, and
the rules of any national securities exchange on which Shares are listed. The
Committee may cause a legend or legends to be placed on any such certificates to
make appropriate reference to such restrictions or any other restrictions that
may be applicable to Shares, including under the terms of the Plan or any Award
Agreement. In addition, during any period in which Awards or Shares are subject
to restrictions under the terms of the Plan or any Award Agreement, or during
any period during which delivery or receipt of an Award or Shares has been
deferred by the Committee or a Participant, the Committee may require the
Participant to enter into an agreement providing that certificates representing
Shares issuable or issued pursuant to an Award shall remain in the physical
custody of the Corporation or such other person as the Committee may designate.
SECTION 9. CHANGE OF CONTROL PROVISIONS. Notwithstanding any other provision
of the Plan, the following acceleration and valuation provisions shall apply in
the event of a "Change of Control" as defined in this Section 9.
9.01. Acceleration and Cash-Out Rights. In the event of a "Change of
Control," as defined in Section 9.02, automatically in the case of all
Participants:
(i) The performance criteria of all Performance Awards and
Performance-Based Restricted Stock shall be deemed fully achieved and all
such Awards shall be fully earned and vested, subject only to the
restrictions on dispositions of equity securities set forth in Section 8.01.1
and legal restrictions on the issuance of Shares set forth in Sections 8.03
and 8.04;
(ii) Any Option, Stock Appreciation Right, and other Award in the nature of
a right that may be exercised which was not previously exercisable and vested
shall become fully exercisable and vested, subject only to the restrictions
on disposition of equity securities set forth in Section 8.01.1 and legal
restrictions on the issuance of Shares set forth in Sections 8.03 and 8.04;
(iii) The restrictions, deferral limitations, and forfeiture conditions
applicable to any other Award granted under the Plan shall lapse and such
Awards shall be deemed fully vested, subject only to the restrictions on
dispositions of equity securities set forth in Section 8.01.1 and legal
restrictions on the issuance of Shares set forth in Sections 8.03 and 8.04;
(iv) In the sole discretion of the Committee, all outstanding Awards may be
cancelled and in such event a Participant holding any such Award shall be
paid in cash therefor on the basis of the "Change of Control Price" (as
defined in Section 9.03) as of the date that the Change of Control occurs, or
such other date as the Committee may determine prior to the Change of
Control; provided, however, that this Section 9.01 (iv) shall not apply in
the case of any Award if (a) the cancellation of and payment for such Award
would cause the Participant to incur actual short-swing profits liability
under Section 16(b) of the Exchange Act or (b) initial shareholder approval
of the Plan has not been obtained; and
(v) To the extent Section 9.01(iv) of this Section 9 does not apply and at
any time after the Change of Control the Shares are no longer readily
tradable on an established exchange, a Participant shall, as of the date on
which the Change of Control occurs,
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be entitled to receive consistent with Rule 16b-3, and the Corporation shall
use its best efforts to compel and obligate the surviving or resulting
corporation in the Change of Control and/or the other party to the agreement
or transaction resulting in the Change of Control to grant to the
Participant, substitute Options, Stock Appreciation Rights and/or Restricted
Stock, as the case may be, in respect of the shares of common stock or other
capital stock of such surviving or resulting corporation, or such other party
involved in the Change of Control, on such terms and conditions, as to the
number of shares, pricing, vesting, exercisability and otherwise, which shall
substantially preserve the value, rights and benefits of any affected
Options, Stock Appreciation Rights and/or Restricted Stock, as the case may
be, previously granted hereunder.
9.02. Change of Control. For purposes of Section 9.01, a "Change of
Control" shall mean:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20%
or more of either the then (i) outstanding shares of Common Stock of the
Corporation (the "Outstanding Corporation Common Stock") or (ii) combined
voting power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the "Outstanding
Voting Securities") provided, however, that the following acquisitions shall
not constitute a Change of Control: (i) any acquisition by the Corporation or
any of its subsidiaries, (ii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Corporation or any of its
subsidiaries, (iii) any acquisition by any corporation with respect to which,
following such acquisition, more than 51% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Voting Securities immediately prior
to such acquisition in substantially the same proportions as their ownership,
immediately prior to such acquisition, of the Outstanding Corporation Common
Stock and Outstanding Voting Securities, as the case may be, or (iv) any
acquisition by one or more Hess Entity (for this purpose a "Hess Entity"
means (A) Mr. Leon Hess or any of his children, (B) any spouse of any person
described in Section 9.02(a)(iv)(A) above, (C) any affiliate (as such term is
defined in Rule 12b-2 under the Exchange Act) of any person described in
Section 9.02(a)(iv)(A) above, (D) the Hess Foundation Inc., or (E) any
persons comprising a group controlled (as such term is defined in such Rule
12b-2) by one or more of the foregoing persons or entities described in this
Section 9.02 (a)(iv)); or
(b) Individuals who, as of the effective date of the Plan, constitute the
Board (the "Incumbent Board") ceasing for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the effective date of the Plan whose election, or
nomination for election by the Corporation's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened solicitation to which Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act applies or other actual threatened solicitation of
proxies or consents; or
(c) Approval by the shareholders of the Corporation of a reorganization,
merger or consolidation, in each case, with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Corporation Common Stock and
Outstanding Voting Securities immediately prior to such reorganization,
merger or consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 51% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or consolidation in
substantially the same proportions as their ownership, immediately prior to
such reorganization, merger or consolidation, of the Outstanding Corporation
Common Stock and Outstanding Voting Securities, as the case may be; or
(d) Approval by the shareholders of the Corporation of (i) a complete
liquidation or dissolution of the Corporation or (ii) the sale or other
disposition of all or substantially all of the assets of the Corporation,
other than to a corporation, with respect to which following such sale or
other disposition, more than 51% of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Corporation
Common Stock and Outstanding Voting Securities immediately prior to such sale
or other disposition in substantially the same proportion as their ownership,
immediately prior to
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such sale or other disposition, of the Outstanding Corporation Common Stock
and Outstanding Voting Securities, as the case may be. The term "the sale or
other disposition of all or substantially all of the assets of the
Corporation" shall mean a sale or other disposition transaction or series of
related transactions involving assets of the Corporation or of any direct or
indirect subsidiary of the Corporation (including the stock of any direct or
indirect subsidiary of the Corporation) in which the value of the assets or
stock being sold or otherwise disposed of (as measured by the purchase price
being paid therefor or by such other method as the Board determines is
appropriate in a case where there is no readily ascertainable purchase price)
constitutes more than two-thirds of the fair market value of the Corporation
(as hereinafter defined). The "fair market value of the Corporation" shall be
the aggregate market value of the then Outstanding Corporation Common Stock
(on a fully diluted basis) plus the aggregate market value of the
Corporation's other outstanding equity securities. The aggregate market value
of the shares of Outstanding Corporation Common Stock shall be determined by
multiplying the number of shares of such Common Stock (on a fully diluted
basis) outstanding on the date of the execution and delivery of a definitive
agreement with respect to the transaction or series of related transactions
(the "Transaction Date") by the average closing price of the shares of
Outstanding Corporation Common Stock for the ten trading days immediately
preceding the Transaction Date. The aggregate market value of any other
equity securities of the Corporation shall be determined in a manner similar
to that prescribed in the immediately preceding sentence for determining the
aggregate market value of the shares of Outstanding Corporation Common Stock
or by such other method as the Board shall determine is appropriate.
9.03. Change of Control Price. For purposes of this Section 9, "Change of
Control Price" means the highest price per share paid in any transaction
reported on the securities exchange or trading system on which the Shares are
then primarily listed or traded, or paid or offered in any transaction related
to a Change of Control of the Corporation at any time during the preceding
60-day period as determined by the Committee, except that in the case of
Incentive Stock Options and Stock Appreciation Rights relating thereto, such
price shall be based only on transactions reported for the date on which the
Committee decides to cash out such Awards.
SECTION 10. ADJUSTMENT PROVISIONS. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Shares, or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
share exchange, or other similar corporate transaction or event, affects the
Shares such that an adjustment is determined by the Committee to be appropriate
in order to prevent dilution or enlargement of the rights of Participants under
the Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and kind of Shares which may thereafter be
issued in connection with Awards (ii) the number and kind of Shares issued or
issuable in respect of outstanding Awards, and (iii) the exercise price, base
price, or purchase price relating to any Award or, if deemed appropriate, make
provision for a cash payment with respect to any outstanding Award; provided,
however, in each case, that, with respect to Incentive Stock Options, no such
adjustment shall be authorized to the extent that such authority would cause the
Plan to violate Section 422(b)(1) of the Code. In addition, the Committee is
authorized to make adjustments in the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events (including,
without limitation, events described in the preceding sentence) affecting the
Corporation or any Subsidiary or the financial statements of the Corporation or
any Subsidiary, or in response to changes in applicable laws, regulations, or
accounting principles.
SECTION 11. CHANGES TO THE PLAN AND AWARDS.
11.01. Changes to the Plan. The Board may amend, alter, suspend, discontinue
or terminate the Plan without the consent of shareholders or Participants,
except that any such amendment, alteration, suspension, discontinuation, or
termination shall be subject to the approval of the Corporation's shareholders
within one year after such Board action if such amendment or alteration
increases the number of shares reserved for Awards under the Plan, changes the
class of Participants eligible to receive Awards under the Plan, or materially
increases the benefits to Participants under the Plan, or if such shareholder
approval is required by any federal or state law or regulation or the rules of
any stock exchange on which the Shares may be listed in order to maintain
compliance therewith, or if the Board in its discretion determines that
obtaining such shareholder approval is for any reason advisable; provided,
however, that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the Plan after
initial shareholder approval of the Plan may materially impair the rights of
such Participant under any Award theretofore granted to him.
11.02. Changes to Awards. The Committee may, unless otherwise expressly
prohibited by the Plan, waive any conditions or rights under, or amend, alter,
suspend, discontinue, or terminate, any Award theretofore granted and any Award
Agreement relating thereto; provided, however, that, without the consent of an
affected Participant, no such amendment, alteration, suspension,
discontinuation, or termination of any Award after initial shareholder approval
of the Plan may materially impair the rights of such Participant under such
Award.
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SECTION 12. GENERAL PROVISIONS.
12.01. No Rights to Awards. No Participant or employee shall have any claim
to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Participants and employees.
12.02. No Shareholder Rights. No Award shall confer on any Participant any of
the rights of a shareholder of the Corporation unless and until Shares are duly
issued or transferred to the Participant in accordance with the terms of the
Award.
12.03. Tax Withholding. To the extent and in the manner permitted by
applicable law, the Corporation or any Subsidiary is authorized to withhold from
any Award granted, any payment relating to an Award under the Plan, including
from a distribution of Shares, or any payroll or other payment to a Participant,
amounts or withholding and other taxes due with respect thereto, its exercise,
or any payment thereunder, and to take such other action as the Committee may
deem necessary or advisable to enable the Corporation and Participants to
satisfy obligations for the payment of withholding taxes and other tax
liabilities relating to any Award. This authority shall include authority to
withhold or receive Shares or other property and to make cash payments in
respect thereof in satisfaction of the Participant's tax obligations.
12.04. No Right to Employment. Nothing contained in the Plan or any Award
Agreement shall confer, and no grant of an Award shall be construed as
conferring, upon any employee any right to continue in the employment of the
Corporation or any Subsidiary or to interfere in any way with the right of the
Corporation or any Subsidiary to terminate such employment at any time or
increase or decrease such employee's compensation from the rate in existence at
the time of granting of an Award.
12.05. Unfunded Status of Awards. The Plan is intended to constitute an
unfunded incentive and deferred compensation plan for tax purposes and for
purposes of Title I of the Employee Retirement Income Security Act of 1974, as
amended. With respect to any payments not yet made to a Participant pursuant to
an Award the Plan constitutes a mere promise to make the benefit payments
provided for herein, and nothing contained in the Plan or any Award shall give
any such Participant any rights that are greater than those of a general
creditor of the Corporation; provided, however, that the Committee may authorize
the creation of trusts or make other arrangements to meet the Corporation's
obligations under the Plan to deliver cash, Shares, other Awards, or other
property pursuant to any award, which trusts or other arrangements shall be
consistent with the unfunded status of the Plan.
12.06. Other Compensatory Arrangements. The Corporation or any Subsidiary
shall be permitted to adopt other or additional compensation arrangements (which
may include arrangements which relate to Awards), and such arrangements may be
either generally applicable or applicable only in specific cases.
12.07. Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award. The Committee shall determined whether cash,
other Awards, or other property shall be issued or paid in lieu of fractional
Shares or whether such fractional Shares or any rights thereto shall be
forfeited or otherwise eliminated.
12.08. Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan, and any Award Agreement shall be
determined in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of laws, and applicable federal law.
SECTION 13. EFFECTIVE DATE. The Plan is effective December 6, 1995. The
amendments to the Plan reflected in the Plan (as amended and restated hereby)
shall be effective December 1, 1999, subject to approval of such amendments as
reflected in the Plan (as amended and restated hereby) within one year after
such date by the affirmative vote of the holders of a majority of the Shares
present or represented and entitled to vote (and the affirmative vote of a
majority of the Shares voting) at a meeting of the Corporation's shareholders,
or any adjournment thereof, and subject to listing of the additional Shares
authorized by such amendments on the New York Stock Exchange. If such approval
and listing are not obtained, such amendments and all Awards made pursuant to
and in reliance on such amendments shall be void ab initio and of no force or
effect. However, the Plan (as in effect immediately prior to such amendment and
restatement) shall continue in full force and effect.
12
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EXHIBIT 5
January 18, 2000
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel for Amerada Hess Corporation, a
Delaware corporation (the "Company"), in connection with the registration by the
Company under the Securities Act of 1933, as amended, of 5,000,000 shares of
Common Stock of the Company ("Common Stock") issuable under the Amerada Hess
Corporation 1995 Long-Term Incentive Plan (the "Plan") under a Registration
Statement on Form S-8 (the "Registration Statement") about to be filed with the
Securities and Exchange Commission.
In rendering the opinions hereinafter expressed, we have examined
originals or copies certified or otherwise identified to our satisfaction of all
such records of the Company, agreements and other instruments, certificates of
public officials, certificates of officers and representatives of the Company
and such other documents as we have deemed necessary as a basis for the opinions
expressed below. In our examination we have assumed and have not verified that
the signatures on all documents which we have examined are genuine, the
authenticity of all documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as copies. As
to various questions of fact material to such opinions we have, when relevant
facts were not independently established, relied upon certifications of officers
of the Company and other appropriate persons.
Based on the foregoing, and having regard to legal considerations we
deem relevant, we are of the opinion that when said shares of Common Stock have
been registered under the Securities Act of 1933, as amended, and when the
Company has received the consideration to be received for said shares in
accordance with the provisions of the Plan and said shares of Common Stock have
been issued as provided under the Plan, said shares of Common Stock will be duly
authorized, validly issued and outstanding, fully paid and nonassessable, with
no personal liability attaching to the ownership thereof.
The foregoing opinions are limited to matters involving the federal
laws of the United States of America, the general corporate law of the State of
Delaware and the laws of the State of New York, and we do not express any
opinion as to the laws of any other jurisdiction.
We wish to note that Mr. Roger B. Oresman, a consulting partner in this
Firm, is a director of the Company and beneficially owns, as of the date hereof,
11,148 shares of Company Common Stock.
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We hereby consent to the inclusion of this opinion in the Registration
Statement and to the reference to this Firm under the caption "Interests of
Named Experts and Counsel" in the Registration Statement.
Very truly yours,
Milbank, Tweed, Hadley & McCloy LLP
MLW/RSR
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EXHIBIT 23(a)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-00000) pertaining to the Amerada Hess Corporation Amended and
Restated 1995 Long-Term Incentive Compensation Plan, of our report dated
February 22, 1999, with respect to the consolidated financial statements of
Amerada Hess Corporation incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
Ernst & Young
New York, NY
January 18, 2000
