As filed with the Securities and Exchange Commission on March 23, 1999
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAKER HUGHES INCORPORATED
(Exact name of issuer as specified in its charter)
DELAWARE 76-0207995
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3900 Essex Lane
Houston, Texas 77027
(Address, including zip code of Principal Executive Offices)
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Baker Hughes Incorporated 1998 Employee Stock Option Plan
(Full title of the plans)
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Lawrence O'Donnell, III
Vice President and General Counsel
Baker Hughes Incorporated
3900 Essex Lane
Houston, Texas 77027
(Name and address of agent for service)
(713) 439-8600
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price per Offering Registration
Registered Registered Share(1) Price(1) Fee
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Common Stock, 3,500,000 $21.53 $75,355,000 $20,949
$1.00 par Shares
value per share
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) and Rule 457(h).
Part II
Item 3. Incorporation of Certain Documents by Reference.
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The Company hereby incorporates into this Registration Statement,
by reference, the following documents which have been filed with the
Securities and Exchange Commission (the "Commission"):
(i) The Company's Annual Report on Form 10-K for the fiscal
year ended 1998.
(ii) The description of the Common Stock contained in the Company's
Registration Statement No. 333-29027 on Form S-4 filed with the
Commission on June 12, 1997.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the effective date of this
Registration Statement, prior to the filing of a post-effective
amendment to this Registration Statement indicating that all
securities offered hereby have been sold or deregistering all
securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be part hereof from the date of filing of
such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this Registration Statement, except as
so modified or superseded.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Certain legal matters with respect to the Common Stock offered
hereby will be passed upon for the Company by Lawrence O'Donnell, III,
Vice President and General Counsel of the Company, Houston, Texas.
Mr. O'Donnell beneficially owns approximately 35,473 shares of Common
Stock and also has options to purchase 299,414 additional shares of
Common Stock, of which 83,993 are currently exercisable.
Item 6. Indemnification of Directors and Officers
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The Company's Restated Certificate of Incorporation contains a
provision that eliminates the personal liability of a director to the
Company and its stockholders for monetary damages for breach of his
fiduciary duty as a director to the extent currently allowed under the
Delaware General Corporation Law. If a director were to breach such
duty in performing his duties as a director, neither the Company nor
its stockholders could recover monetary damages from the
director, and the only course of action available to the Company's
stockholders would be equitable remedies, such as an action to enjoin
or rescind a transaction involving a breach of fiduciary duty. To the
extent certain claims against directors are limited to equitable
remedies, the provision in the Company's Restated Certificate of
Incorporation may reduce the likelihood of derivative litigation and
may discourage stockholders or management from initiating litigation
against directors for breach of their fiduciary duty. Additionally,
equitable remedies may not be effective in many situations. If a
stockholder's only remedy is to enjoin the completion of the Board of
Directors' action, this remedy would be ineffective if the stockholder
does not become aware of a transaction or event until after it has
been completed. In such a situation, it is possible that the
stockholders and the Company would have no effective remedy against
the directors. Under the Company's Restated Certificate of
Incorporation, liability for monetary damages remains for (i) any
breach of the duty of loyalty to the Company or its stockholders, (ii)
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) payment of an improper
dividend or improper repurchase of the Company's stock under Section
174 of the Delaware General Corporation Law, or (iv) any transaction
from which the director derived an improper personal benefit. The
Company's Restated Certificate of Incorporation further provides that
in the event the Delaware General Corporation Law is amended to allow
the further elimination or limitation of the liability of directors,
then the liability of the Company's directors shall be limited or
eliminated to the fullest extent permitted by the amended Delaware
General Corporation Law.
Under Article III of the Company's Bylaws as currently in effect
and an indemnification agreement with the Company's officers and
directors (the "Indemnification Agreement"), each person who is or was
a director or officer of the Company or a subsidiary of the Company,
or who serves or served any other enterprise or organization at the
request of the Company or a subsidiary of the Company, shall be
indemnified by the Company to the full extent permitted by the
Delaware General Corporation Law.
Under such law, to the extent that such person is successful on
the merits in defense of a suit or proceeding brought against him by
reason of the fact that he is or was a director or officer of the
Company, or serves or served any other enterprise or organization at
the request of the Company, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred in
connection with such action.
Under such law, if unsuccessful in defense of a third-party civil
suit or a criminal suit, or if such suit is settled, such a person
shall be indemnified against both (i) expenses, including attorneys'
fees, and (ii) judgments, fines and amounts paid in settlement if he
acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Company, and, with
respect to any criminal action, had no reasonable cause to believe his
conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right
of the Company, where such suit is settled, such a person shall be
indemnified under such law only against expenses (including attorneys'
fees) actually and reasonably incurred in the defense or settlement of
such suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Company, except that if such person is adjudged to be liable in such a
suit for negligence or misconduct in the performance of his duty to
the Company, he cannot be made whole even for expenses unless the
court determines that he is fairly and reasonably entitled to
indemnity for such expenses.
The Indemnification Agreement provides directors and officers
with specific contractual assurance that indemnification and
advancement of expenses will be available to them regardless of any
amendments to or revocation of the indemnification provisions of the
Company's Bylaws. The Indemnification Agreement provides for
indemnification of directors and officers against both stockholder
derivative claims and third-party claims. Sections 145(a) and 145(b)
of the Delaware General Corporation Law, which grant corporations the
power to indemnify directors and officers, specifically authorize
lesser indemnification in connection with derivative claims than in
connection with third-party claims. The distinction is that Section
145(a), concerning third-party claims, authorizes expenses and
judgments and amounts paid in settlement (as is provided in the
Indemnification Agreement), but Section 145(b), concerning derivative
suits, generally authorizes only indemnification of expenses.
However, Section 145(f) expressly provides that the indemnification
and advancement of expenses provided by or granted pursuant to the
subsections of Section 145 shall not be exclusive of any other rights
to which those seeking indemnification or advancement of expenses may
be entitled under any agreement. No Delaware case directly answers
the question whether Delaware's public policy would support this
aspect of the Indemnification Agreement under the authority of Section
145(f), or would cause its invalidation because it does not conform to
the distinctions contained in Sections 145(a) and 145(b).
Pursuant to the Indemnification Agreement, the Company has agreed
to provide, at all times during the two-year period following a
"change in control" (as defined in the Indemnification Agreement) of
the Company, irrevocable letters of credit in an aggregate amount not
less than $25,000,000 for the benefit of the officers and directors of
the Company to secure the Company's obligations under the
Indemnification Agreement.
Delaware corporations also are authorized to obtain insurance to
protect officers and directors from certain liabilities, including
liabilities against which the corporation cannot indemnify its
directors and officers. The Company currently has in effect a
directors' and officers' liability insurance policy.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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4.1 Restated Certificate of Incorporation (filed as Exhibit 3.1 to
Annual Report of Baker Hughes Incorporated on Form 10-K for the
fiscal year ended December 31, 1998 and incorporated herein by
reference).
4.2 Bylaws as amended December 2, 1998 (filed as Exhibit 3.2 to
Annual Report of Baker Hughes Incorporated on Form 10-K for the
fiscal year ended December 31, 1998 and incorporated herein by
reference).
4.3 Certificate of Designation of Series L Preferred Stock (filed as
Exhibit 4.4 to Company's Annual Report on Form 10-K for the year
ended September 30, 1996 (File No. 1-9397) and incorporated
herein by reference).
5.1 Opinion of Lawrence O'Donnell, III with respect to legality of
securities.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of Lawrence O'Donnell, III (contained in Exhibit 5.1).
24.1 Powers of Attorney are included on the signature page of this
Registration Statement.
Item 9. Undertakings
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
10(a) (3)of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
(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 the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant
to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the 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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its Counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lawrence O'Donnell, III and Max
L. Lukens, and each of them, each of whom may act without joinder of the
other, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any or
all pre- and post-effective amendments to this Registration Statement,
including without limitation any registration statement of the type
contemplated by Rule 462(b) under the Securities Act of 1933, and to
file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, 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
to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents, and each of them, or the substitute or substitutes of any or all
of them, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Houston, State of
Texas, on March 23, 1999.
BAKER HUGHES INCORPORATED
By: /s/ Max L. Lukens
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Max L. Lukens
Chairman of the Board, President and
Chief Executive 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 dates indicated:
Signature Title Date
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Chairman of the Board,
President, Chief Executive
// Max L. Lukens Officer and Director (principal
- -------------------- executive officer) March 23, 1999
(Max L. Lukens)
Signature Title Date
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Senior Vice President and Chief
Financial Officer (principal
/s/ E. L. Mattson financial officer) March 23, 1999
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(E. L. Mattson)
Vice President-Tax and
Controller (principal
/s/ James W. Harris accounting officer) March 23, 1999
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(James W. Harris)
Signature Title Date
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/s/ Lester M. Alberthal, Jr. Director March 23, 1999
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Lester M. Alberthal, Jr.
/s/ Victor G. Beghini Director March 23, 1999
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Victor G. Beghini
/s/ Alton J. Brann Director March 23, 1999
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Alton J. Brann
/s/ Joseph T. Casey Director March 23, 1999
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Joseph T. Casey
/s/ Eunice M. Filter Director March 23, 1999
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Eunice M. Filter
/s/ Joe B. Foster Director March 23, 1999
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Joe B. Foster
/s/ Claire W. Gargalli Director March 23, 1999
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Claire W. Gargalli
/s/ Richard D. Kinder Director March 23, 1999
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Richard D. Kinder
/s/ Director
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John F. Maher
/s/ James F. McCall Director March 23, 1999
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James F. McCall
/s/ H. John Riley, Jr. Director March 23, 1999
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H. John Riley, Jr.
/s/ John R. Russell Director March 23, 1999
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John R. Russell
/s/ Charles L. Watson Director March 23, 1999
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Charles L. Watson
/s/ Director
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Max P. Watson, Jr.
Exhibit 5.1
March 23, 1999
Baker Hughes Incorporated
3900 Essex Lane
Houston, Texas 77027
Gentlemen:
I am the General Counsel for Baker Hughes Incorporated, a Delaware
corporation (the "Company"), and have acted in such capacity in connection
with the registration under the Securities Act of 1933, as amended (the
"Act"), of 3,500,000 shares of the Company's common stock, $1.00 par value
(the "Common Stock"), to be offered upon the terms and subject to the
conditions set forth in the Registration Statement on Form S-8 (the
"Registration Statement") relating thereto to be filed with the Securities
and Exchange Commission on March 23, 1999.
In connection therewith, I have examined originals or copies certified
or otherwise identified to my satisfaction of the Restated Certificate of
Incorporation of the Company, the By-laws of the Company, the corporate
proceedings with respect to the offering of shares and such other documents
and instruments as I have deemed necessary or appropriate for the
expression of the opinions contained herein.
I have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to me as originals, the
conformity to original documents of all records, certificates and other
instruments submitted to me as copies, the authenticity and completeness of
the originals of those records, certificates and other instruments
submitted to me as copies and the correctness of all statements of fact
contained in all records, certificates and other instruments that I have
examined.
Based on the foregoing, and having a regard for such legal
considerations as I have deemed relevant, I am of the opinion that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of
Delaware.
(ii) The shares of Common Stock proposed to be sold by the
Company have been duly and validly authorized for issuance
and, when issued and paid for in accordance with the terms
of the Registration Statement, and subject to the
Registration Statement becoming effective under the Act and
to compliance with the applicable Blue Sky laws, will be
duly and validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Lawrence O'Donnell, III
Vice President and General Counsel
LOD/ng
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Baker Hughes Incorporated on Form S-8 of our report dated
February 17, 1999 (which expresses an unqualified opinion and includes an
explanatory paragraph relating to the change in the method of accounting
for impairment of long-lived assets to be disposed of to conform with
Statement of Financial Accounting Standards No. 121, as discussed in Note
2), incorporated by reference in the Annual Report on Form 10-K of Baker
Hughes Incorporated for the year ended December 31, 1998.
Deloitte & Touche LLP
Houston, Texas
March 23, 1999
