As filed with the Securities and Exchange Commission on November 18, 1997
Registration No. 333-32603-01
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
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BURLINGTON RESOURCES INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1413284
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5051 Westheimer, Suite 1400
Houston, Texas 77056
(Address of registrant's principal executive offices)
THE LOUISIANA LAND AND EXPLORATION COMPANY 1997 LONG-TERM STOCK INCENTIVE PLAN
THE LOUISIANA LAND AND EXPLORATION COMPANY 1988 LONG-TERM STOCK INCENTIVE PLAN
THE LOUISIANA LAND AND EXPLORATION COMPANY 1995 STOCK OPTION PLAN FOR NON-
EMPLOYEE DIRECTORS
THE LOUISIANA LAND AND EXPLORATION COMPANY 1990 STOCK OPTION PLAN FOR NON-
EMPLOYEE DIRECTORS
(Full title of the plans)
Gerald J. Schissler
Executive Vice President, Law & Administration
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, Texas 77056
(713) 624-9500
(Name, address, and telephone number of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF SECURITIES PURSUANT TO
THE PLANS: Promptly after the filing of this Post-Effective Amendment.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4 Registration
Statement pursuant to the procedure described herein. See "INTRODUCTORY
STATEMENT."
<PAGE>
EXPLANATORY NOTE
Burlington Resources Inc. (the "Company") hereby amends its
Registration Statement on Form S-4 (No. 333-32603) (the "S-4") by filing this
Post-Effective Amendment No. 1 on Form S-8 (the "Post-Effective Amendment")
relating to its common stock, par value $.01 per share (the "Common Stock"). The
S-4 registers 1,957,297 shares of Common Stock for issuance upon exercise of
options granted pursuant to the terms of The Louisiana Land and Exploration
Company 1997 Long-Term Stock Incentive Plan, The Louisiana Land and Exploration
Company 1988 Long-Term Stock Incentive Plan, The Louisiana Land and Exploration
Company 1995 Stock Option Plan for Non-Employee Directors and The Louisiana Land
and Exploration Company 1990 Stock Option Plan for Non-Employee Directors (the
"Plans").
On October 22, 1997, pursuant to an Agreement and Plan of Merger dated
as of July 16, 1997, among the Company, The Louisiana Land and Exploration
Company ("LL&E") and BR Acquisition Corporation (a wholly-owned subsidiary of
the Company), the following events (among others) occurred: (a) BR Acquisition
Corporation merged with and into LL&E, with LL&E surviving as a wholly-owned
subsidiary of the Company (the "Merger"); (b) each outstanding share of LL&E
capital stock, par value $.15 per share, was converted into a right to receive
1.525 shares of Common Stock; (c) outstanding options to purchase LL&E capital
stock under the Plans were converted into options to purchase Common Stock; and
(d) the Company assumed the Plans.
Prior to the Merger, shares of LL&E capital stock were registered for
issuance under all of the Plans (other than under The Louisiana Land and
Exploration Company 1997 Long-Term Stock Incentive Plan) pursuant to
Registration Statements on Form S-8, Registration Nos. 33-56211, 33-62923,
33-22108, and 33-37814. As a result of the Merger, shares of Common Stock will
be issued to the participants in the Plans upon the exercise of options under
such plans. The purpose of this Post-Effective Amendment Statement is to
register shares of Common Stock for issuance pursuant to the Plans.
The designation of this Post-Effective Amendment as Registration No.
333-32603-01 denotes that the Post-Effective Amendment relates only to the
shares of Common Stock issuable upon exercise of stock options under the Plans
and that this is the first Post-Effective Amendment to the Form S-4 filed with
respect to such shares of Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by the Company with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the
quarters ended September 30, 1997, June 30, 1997 and March 31, 1997;
(c) The Company's Current Report on Form 8-K dated November 6,
1997 and July 18, 1997;
(d) The Joint Proxy Statement/Prospectus dated September 12,
1997 filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), and included
in its Registration Statement on Form S-4 (File No. 333-32603); and
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(e) The description of the Common Stock contained in the
Registration Statement on Form 8-A (Registration No. 1-9971) dated June
21, 1988, filed with the Commission under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and as amended
by Form 8 dated June 22, 1988.
All documents filed subsequent to the date hereof 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 hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of the filing (each such document, an
"Incorporated Document"). Any statement contained herein or in an Incorporated
Document deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed Incorporated Document
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters with respect to the securities offered hereby
will be passed upon for the Company by L. David Hanower, Senior Vice President,
Law, of the Company.
The financial statements incorporated by reference in this Registration
Statement from the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 have been incorporated herein in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Company is governed by Section 145 of the General Corporation Law
of the State of Delaware (the "DGCL"), which provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than action by
or in the right of the corporation (a "Derivative Action")), if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of Derivative Actions, except that
indemnification only extends to expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
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Article X of the Company's By-Laws requires indemnification of
directors and officers to the full extent permitted under the DGCL as from time
to time in effect. Subject to any restrictions imposed by the DGCL, the
Company's By-laws provide a right to indemnification for all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) actually and reasonably incurred by
any person in connection with any actual or threatened proceeding by reason of
the fact that such person is or was serving as a director or officer of the
Company, or that, being or having been such a director or officer of the
Company, such person is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including an employee benefit plan. The
Company's By-Laws also provide that the Company may, by action of its Board of
Directors, provide indemnification to its employees or agents with the same
scope and effect as the foregoing indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
repurchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article 13 of the Company's Certificate of Incorporation, as amended,
provides that to the full extent that the DGCL permits the limitation or
elimination of the liability of directors, a director of the Company shall not
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as director. Any amendment or repeal of such Article 13 will not
adversely affect any right or protection of a director of the Company for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal. The DGCL and the Company's Certificate of Incorporation, as
amended, may have no effect on claims arising under the federal securities laws.
Officers and directors of the Company are covered by insurance (with
certain exceptions and within certain limitations) which indemnifies them
against losses and liabilities arising from certain alleged "wrongful acts,"
including alleged errors or misstatements, or certain other alleged wrongful
acts or omissions constituting neglect or breach of duty.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
4.1 -- Form of Rights Agreement dated as of December 16, 1988,
between the Company and The First National Bank of Boston,
which includes, as Exhibit A thereto, the for of
Certificate of Designation specifying terms of the Series A
Preferred Stock, and, as Exhibit B thereto, the form of
Rights Certificate (filed as Exhibit 1 to Form 8-A,
filed December 1988, and incorporated herein by reference).
4.2 -- Amendment No. 1 to Form of Rights Agreement (filed as Exhibit
2 to Form 8-K, filed March 1989, and incorporated herein by
reference).
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4.3 -- Amendment No. 2 to Form of Rights Agreement (filed as Exhibit
5 to Form 8-A/A, filed October 11, 1996, and incorporated
herein by reference).
4.4 -- Form of Certificate of Incorporation (filed as Exhibit 3.1 to
the Company's Form 8, filed March 1990, and incorporated
herein by reference).
4.5 -- Form of By-Laws of the Company (as amended through October 22,
1997).
5.1 -- Opinion of counsel as to the legality of the securities being
registered
23.1 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Powers of Attorney (included on the signature pages)
Item 9. Undertakings
The Company hereby undertakes:
(a) 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 this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (i) and (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 with or
furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(b) 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.
(c) 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.
(d) That, for the purpose of determining any liability under
the Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, the Company has been advised that in the opinion of the
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Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on November 18, 1997.
BURLINGTON RESOURCES INC.
By: \s\ Bobby S. Shackouls
Bobby S. Shackouls
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes John
E. Hagale and Gerald J. Schissler and each of them as attorneys-in-fact, with
full power of substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 18, 1997.
Signature Title
\s\ Bobby S. Shackouls Chairman of the Board, President and
Bobby S. Shackouls Chief Executive Officer
\s\ John E. Hagale Executive Vice President and Chief
John E. Hagale Financial Officer
\s\ Hays R. Warden Senior Vice President and Controller
Hays R. Warden (Chief Accounting Officer)
\s\ John V. Byrne Director
John V. Byrne
\s\ S. Parker Gilbert Director
S. Parker Gilbert
\s\ Laird I. Grant Director
Laird I. Grant
\s\ John T. LaMacchia Director
John T. LaMacchia
\s\ James F. McDonald Director
James F. McDonald
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Signature Title
\s\ Donald M. Roberts Director
Donald M. Roberts
\s\ Walter Scott, Jr. Director
Walter Scott, Jr.
\s\ William E. Wall Director
William E. Wall
Constituting a majority of the Board of Directors.
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Ex. Number Description Page
<S> <C> <C> <C>
4.1 -- Form of Rights Agreement dated as of December 16, 1988, between the Company and The *
First National Bank of Boston, which includes, as Exhibit A thereto, the form of
Certificate of Designation specifying terms of the Series A Preferred Stock, and, as
Exhibit B thereto, the form of Rights Certificate (filed as Exhibit 1 to Form 8-A,
filed December 1988).
4.2 -- Amendment No. 1 to Form of Rights Agreement (filed as Exhibit 2 to Form 8-K, filed *
March 1989, and incorporated herein by reference).
4.3 -- Amendment No. 2 to Form of Rights Agreement (filed as Exhibit 5 to Form 8-A/A, filed *
October 11, 1996).
4.4 -- Form of Certificate of Incorporation (filed as Exhibit 3.1 to the Company's Form 8, *
filed March 1990).
4.5 -- Form of By-Laws of the Company (as amended through October 22, 1997) 10
5.1 -- Opinion of counsel as to the legality of the securities being registered 30
23.1 -- Consent of Coopers & Lybrand L.L.P. 31
24.1 -- Powers of Attorney (included on the signature pages) -
* Incorporated by Reference
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</TABLE>
BY-LAWS
OF
BURLINGTON RESOURCES INC.
ARTICLE I
OFFICES
SECTION 1. Registered Office and Agent.
The registered office of the corporation is located at Corporation
Trust Center, 1209 Orange Street in the City of Wilmington, County of New
Castle, State of Delaware, and the name of its registered agent at such address
is The Corporation Trust Company.
SECTION 2. Other Offices.
The corporation may have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meetings.
A meeting of the stockholders for the purpose of electing directors and
for the transaction of such other business as may properly be brought before the
meeting shall be held annually at ten (10) o'clock A.M. on the third Thursday of
April, or at such other time on such other day as shall be fixed by resolution
of the Board of Directors. If the day fixed for the annual meeting shall be a
legal holiday such meeting shall be held on the next succeeding business day.
SECTION 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes may be
called only by a majority of the Board of Directors, the Chairman of the Board,
or the President. (Amended February 22, 1989)
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SECTION 3. Place of Meetings.
The annual meeting of the stockholders of the corporation shall be held
at the general offices of the corporation in the City of Houston, State of
Texas, or at such other place in the United States as may be stated in the
notice of the meeting. All other meetings of the stockholders shall be held at
such places within or without the State of Delaware as shall be stated in the
notice of the meeting. (Amended December 6, 1995)
SECTION 4. Notice of Meetings.
4.1 Giving of Notice. Except as otherwise provided by statute, written
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, notice shall be
given when deposited in the United States mails, postage prepaid, directed to
such stockholder at his or her address as it appears in the stock ledger of the
corporation. Each such notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called.
4.2 Notice of Adjourned Meetings. When a meeting is adjourned to
another time and place, notice of the adjourned meeting need not be given if the
time and place thereof are announced at the meeting at which the adjournment is
given. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
4.3 Waiver of Notice.
4.3.1 Whenever any notice is required to be given to any stockholder
under the provisions of these By-Laws, the Certificate of Incorporation or the
General Corporation Law of Delaware, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
4.3.2 The attendance of a stockholder at a meeting shall constitute a
waiver of notice of such meeting, except when a stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 5. Fixing of Record Date for Determining Stockholders.
5.1 Meetings. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board, the record date
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for determining stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at the meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
5.2 Dividends, Distributions and Other Rights. For the purpose of
determining stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
SECTION 6. Quorum.
A majority of the outstanding shares of stock of the corporation
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at a meeting of the stockholders; provided that where a separate vote by
a class or classes or by a series of a class is required, a majority of the
outstanding shares of such class or classes or of such series of a class,
present in person or represented by proxy at the meeting, shall constitute a
quorum entitled to take action with respect to the vote on that matter. If less
than a majority of the outstanding shares entitled to vote are represented at a
meeting, a majority of the shares so represented may adjourn the meeting from
time to time without further notice. If a quorum is present or represented at a
reconvened meeting following such an adjournment, any business may be transacted
that might have been transacted at the meeting as originally called. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 7. Organization.
At each meeting of the stockholders, the Chairman of the Board, or in
his or her absence such person as shall have been designated by the Board of
Directors, or in the absence of such designation a person elected by the holders
of a majority in number of shares of stock present in person or represented by
proxy and entitled to vote, shall act as Chairman of the meeting.
The Secretary, or in his or her absence or in the event he or she shall
be presiding over the meeting in accordance with the provisions of this Section,
an Assistant Secretary or, in the absence of the Secretary and all of the
Assistant Secretaries, any person appointed by the Chairman of the meeting,
shall act as Secretary of the meeting.
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SECTION 8. Voting.
8.1 Generally. Unless otherwise provided in the Certificate of
Incorporation or a resolution of the Board of Directors creating a series of
stock, at each meeting of the stockholders, each holder of shares of any series
or class of stock entitled to vote at such meeting shall be entitled to one vote
for each share of stock having voting power in respect of each matter upon which
a vote is to be taken, standing in his or her name on the stock ledger of the
corporation on the record date fixed as provided in these By-Laws for
determining the stockholders entitled to vote at such meeting. In all matters
other than the election of Directors, if a quorum is present, the affirmative
vote of the majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the vote of a greater number is required by these By-Laws,
the Certificate of Incorporation or the General Corporation Law of Delaware.
Where a separate vote by a class or classes or by a series of a class is
required, if a quorum is present, the affirmative vote of the majority of shares
of such class or classes or series of a class present in person or represented
by proxy at the meeting shall be the act of such class or classes or series of a
class.
8.2 Voting for Directors. At each election of Directors the voting
shall be by ballot. Directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of Directors.
8.3 Shares Held or Controlled by the Corporation. Shares of its own
capital stock belonging to the corporation, or to another corporation if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the corporation, shall neither be entitled to vote
nor counted for quorum purposes.
8.4 Proxies. A stockholder may vote by proxy executed in writing by the
stockholder or by his or her attorney-in-fact. Such proxy shall be filed with
the Secretary of the corporation before or at the time of the meeting. A proxy
shall become invalid three years after the date of its execution, unless
otherwise provided in the proxy. A proxy with respect to a specified meeting
shall entitle the holder thereof to vote at any reconvened meeting following
adjournment of such meeting but shall not be valid after the final adjournment
thereof.
SECTION 9. Inspectors.
Prior to each meeting of stockholders, the Board of Directors shall
appoint two Inspectors who are not directors, candidates for directors or
officers of the corporation, who shall receive and determine the validity of
proxies and the qualifications of voters, and receive, inspect, count and report
to the meeting in writing the votes cast on all matters submitted to a vote at
such meeting. In case of failure of the Board of Directors to make such
appointments or in case of failure of any Inspector so appointed to act, the
Chairman of the Board shall make such appointment or fill such vacancies. Each
Inspector, immediately before entering upon his or her duties, shall subscribe
to an oath or affirmation faithfully to execute the duties of Inspector at such
meeting with strict impartiality and according to the best of his or her
ability.
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SECTION 10. List of Stockholders.
The Secretary or other officer or agent having charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares of each class and series registered in the
name of each such stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. Such list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by this section, or the books of the corporation, or to vote in person or by
proxy at any such meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. Number, Qualification and Term of Office.
The business, property and affairs of the corporation shall be managed
by a Board consisting of not less than one Director. The Board of Directors
shall from time to time by a vote of a majority of the Directors then in office
fix the specific number of Directors to constitute the Board. At each annual
meeting of stockholders a Board of Directors shall be elected by the
stockholders for a term of one year. Each Director shall serve until his or her
successor is elected and shall qualify.
SECTION 2. Vacancies.
Vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of Directors may be filled
by a majority of the Directors then in office, although less than a quorum, or
by a sole remaining Director, at any regular or special meeting of the Board of
Directors.
SECTION 3. Resignations.
Any Director may resign at any time upon written notice to the
Secretary of the corporation. Such resignation shall take effect on the date of
receipt of such notice or at any later date specified therein; and the
acceptance of such resignation, unless required by the terms thereof, shall not
be necessary to make it effective. When one or more Directors shall resign
effective at a future date, a majority of the Directors then in office,
including those who have resigned, shall have power to fill such vacancy or
vacancies to take effect when such resignation or resignations shall become
effective.
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SECTION 4. Removals.
Any Director may be removed, with cause, at any special meeting of the
stockholders called for that purpose, by the affirmative vote of the holders of
a majority in number of shares of the corporation entitled to vote for the
election of such Director, and the vacancy in the Board caused by any such
removal may be filled by the stockholders at such a meeting.
SECTION 5. Place of Meetings; Books and Records.
The Board of Directors may hold its meetings, and have an office or
offices, at such place or places within or without the State of Delaware as the
Board from time to time may determine.
The Board of Directors, subject to the provisions of applicable
statutes, may authorize the books and records of the corporation, and offices or
agencies for the issue, transfer and registration of the capital stock of the
corporation, to be kept at such place or places outside of the State of Delaware
as, from time to time, may be designated by the Board of Directors.
SECTION 6. Annual Meeting of the Board.
The first meeting of each newly elected Board of Directors, to be known
as the Annual Meeting of the Board, for the purpose of electing officers,
designating committees and the transaction of such other business as may come
before the Board, shall be held as soon as practicable after the adjournment of
the annual meeting of stockholders, and no notice of such meeting shall be
necessary to the newly elected Directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event such meeting is not
held due to the absence of a quorum, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the newly elected Directors.
SECTION 7. Regular Meetings.
The Board of Directors shall, by resolution, provide for regular
meetings of the Board at such times and at such places as it deems desirable.
Notice of regular meetings need not be given.
SECTION 8. Special Meetings.
Special meetings of the Board of Directors may be called by the
Chairman of the Board or the President and shall be called by the Secretary on
the written request of five Directors on such notice as the person or persons
calling the meeting shall deem appropriate in the circumstances. Notice of each
such special meeting shall be mailed to each Director or delivered to him or her
by telephone, telegraph or any other means of electronic communication, in each
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case addressed to his or her residence or usual place of business, or delivered
to him or her in person or given to him or her orally. The notice of meeting
shall state the time and place of the meeting but need not state the purpose
thereof. Whenever any notice is required to be given to any Director under the
provisions of these By-Laws, the Certificate of Incorporation or the General
Corporation Law of Delaware, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board or any committee appointed by the Board need be specified in the
waiver of notice of such meeting. Attendance of a Director at any meeting shall
constitute a waiver of notice of such meeting except when a Director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting was not lawfully called or convened.
(Amended July 7, 1992 and October 22, 1997)
SECTION 9. Quorum and Manner of Acting.
Except as otherwise provided by statute, the Certificate of
Incorporation, or these By-Laws, the presence of a majority of the total number
of Directors shall constitute a quorum for the transaction of business at any
regular or special meeting of the Board of Directors, and the act of a majority
of the Directors present at any such meeting at which a quorum is present shall
be the act of the Board of Directors. In the absence of a quorum, a majority of
the Directors present may adjourn the meeting, from time to time, until a quorum
is present. Notice of any such adjourned meeting need not be given.
SECTION 10. Organization.
At every meeting of the Board of Directors, the Chairman of the Board
or in his or her absence the President or, if both of the said officers are
absent, a Chairman chosen by a majority of the Directors present shall act as
Chairman of the meeting. The Secretary, or in his or her absence, an Assistant
Secretary, or in the absence of the Secretary and all the Assistant Secretaries,
any person appointed by the Chairman of the meeting, shall act as Secretary of
the meeting. (Amended July 7, 1992)
SECTION 11. Consent of Directors in Lieu of Meeting.
Unless otherwise restricted by the Certificate of Incorporation or by
these By-Laws, any action required or permitted to be taken at any meeting of
the Board of Directors, or any committee designated by the Board, may be taken
without a meeting if all members of the Board or committee consent thereto in
writing, and such written consent is filed with the minutes of the proceedings
of the Board or committee.
SECTION 12. Telephonic Meetings.
Members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of the Board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such
meeting.
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SECTION 13. Compensation.
Each Director, who is not a full-time salaried officer of the
corporation or any of its wholly owned subsidiaries, when authorized by
resolution of the Board of Directors, may receive as a Director a stated salary
or an annual retainer and in addition may be allowed a fixed fee and his or her
reasonable expenses for attendance at each regular or special meeting of the
Board of any Committee thereof.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. Executive Committee.
The Board of Directors may, in its discretion, designate annually an
Executive Committee consisting of not less than five Directors as it may from
time to time determine. The Committee shall have and may exercise such powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation as the Board of Directors may from time to time
prescribe and may authorize the seal of the corporation to be affixed to all
papers which may require it, but the Committee shall have no power or authority
to amend the Certificate of Incorporation (except that the Committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors, fix the designations and any
of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopt an agreement of merger
or consolidation, recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommend to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, amend the By-Laws of the corporation, elect officers or fill
vacancies on the Board of Directors or any Committee of the Board, declare a
dividend or authorize the issuance of stock. (Amended October 22, 1997)
SECTION 2. Finance Committee.
The Board of Directors may, in its discretion, designate annually a
Finance Committee, consisting of such number of Directors as the Board of
Directors may from time to time determine. The Committee shall monitor, review,
appraise and recommend to the Board of Directors appropriate action with respect
to the corporation's capital structure, its source of funds and its financial
position; review and recommend appropriate delegations of authority to
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management on expenditures and other financial commitments; review terms and
conditions of financing plans; develop and recommend dividend policies and
recommend to the Board specific dividend payments; review the performance of the
trustee of the corporation's pension trust fund, and any proposed change in the
investment policy of the trustee with respect to such fund; and such other
duties, functions and powers as the Board may from time to time prescribe.
SECTION 3. Audit Committee.
The Board of Directors shall designate annually an Audit Committee
consisting of not less than three Directors as it may from time to time
determine, none of whom shall be officers of the corporation. The Committee
shall review with the independent accountants the corporation's financial
statements, basic accounting and financial policies and practices, competency of
control personnel, standard and special tests used in verifying the
corporation's statements of account and in determining the soundness of the
corporation's financial condition and report to the Board the results of such
reviews; review the policies and practices pertaining to publication of
quarterly and annual statements to assure consistency with audited results and
the implementing of policies and practices recommended by the independent
accountants; ensure that suitable independent audits are made of the operations
and results of subsidiary corporations and affiliates; monitor compliance with
the corporation's code of business conduct, and such other duties, functions and
powers as the Board may from time to time prescribe.
SECTION 4. Compensation and Nominating Committee.
The Board of Directors shall designate annually a Compensation and
Nominating Committee consisting of such number of Directors as the Board of
Directors may from time to time determine. The Committee shall review, report
and make recommendations to the Board of Directors on the following matters:
(a) The compensation of the Chief Executive Officer and all senior
officers of the corporation and its principal operating
subsidiaries reporting directly to the Chief Executive Officer
following an annual review of management's recommendations for
the individuals involved. If circumstances involving individuals
require a salary adjustment between such reviews, a
recommendation may be made directly to the Board of Directors by
the Chief Executive Officer without the necessity of a meeting of
the Compensation and Nominating Committee.
(b) The size and composition of the Board and nominees for Directors;
evaluate the performance of the officers of the corporation and
together with management, select and recommend to the Board
appropriate individuals for election, appointment and promotion
as officers of the corporation and ensure the continuity of able
capable management.
(c) Any proposed stock option plans, stock purchase plans, retirement
plans, and any other plans, systems and practices of the
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corporation relating to the compensation of any employees of the
corporation and any proposed plans of any subsidiary company
involving the issuance or purchase of capital stock of the
corporation.
(d) Such other matters as the Board may from time to time prescribe.
The Committee shall carry out the duties assigned to the Committee
under any existing stock option plans or other existing compensation or benefit
plans; and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe. (Amended July 7, 1992 and
December 6, 1995)
SECTION 5. Committee Chairman, Books and Records.
Each Committee shall elect a Chairman to serve for such term as it may
determine, shall fix its own rules of procedure and shall meet at such times and
places and upon such call or notice as shall be provided by such rules. It shall
keep a record of its acts and proceedings, and all action of the Committee shall
be reported to the Board of Directors at the next meeting of the Board.
SECTION 6. Alternates.
Alternate members of the Committees prescribed by this Article IV may
be designated by the Board of Directors from among the Directors to serve as
occasion may require. Whenever a quorum cannot be secured for any meeting of any
such Committee from among the regular members thereof and designated alternates,
the member or members of such Committee present at such meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of such absent or disqualified member.
Alternative members of such Committees shall receive a reimbursement
for expenses and compensation at the same rate as regular members of such
Committees.
SECTION 7. Other Committees.
The Board of Directors may designate such other Committees, each to
consist of two or more Directors, as it may from time to time determine, and
each such Committee shall serve for such term and shall have and may exercise,
during intervals between meetings of the Board of Directors, such duties,
functions and powers as the Board of Directors may from time to time prescribe.
SECTION 8. Quorum and Manner of Acting.
At each meeting of any Committee the presence of a majority of the
members of such Committee, whether regular or alternate, shall be necessary to
constitute a quorum for the transaction of business, and if a quorum is present
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the concurrence of a majority of those present shall be necessary for the taking
of any action; provided, however, that no action may be taken by the Executive
Committee or the Finance Committee when two or more officers of the corporation
are present as members at a meeting of either such Committee unless such action
shall be concurred in by the vote of two or more members of such Committee who
are not officers of the corporation.
ARTICLE V
OFFICERS
SECTION 1. Number.
The officers of the corporation shall be a Chairman of the Board, a
President and Chief Executive Officer, one or more Vice Chairmen of the Board,
an Executive Vice President and Chief Financial Officer, an Executive Vice
President, Law, a Secretary, a Treasurer, and such other officers as may be
elected or appointed by the Board of Directors. Any number of offices may be
held by the same person. (Amended July 7, 1992, December 6, 1995 and October 22,
1997)
SECTION 2. Election, Term of Office and Qualifications.
The officers of the corporation shall be elected annually by the Board
of Directors. Each officer elected by the Board of Directors shall hold office
until his or her successor shall have been duly elected and qualified, or until
he or she shall have died, resigned or been removed in the manner hereinafter
provided.
SECTION 3. Resignations.
Any officer may resign at any time upon written notice to the Secretary
of the corporation. Such resignation shall take effect at the date of its
receipt, or at any later date specified therein; and the acceptance of such
resignation, unless required by the terms thereof, shall not be necessary to
make it effective.
SECTION 4. Removals.
Any officer elected or appointed by the Board of Directors may be
removed, with or without cause, by the Board of Directors at a regular meeting
or special meeting of the Board. Any officer or agent appointed by any officer
or committee may be removed, either with or without cause, by such appointing
officer or committee.
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SECTION 5. Vacancies.
Any vacancy occurring in any office of the corporation shall be filled
for the unexpired portion of the term in the same manner as prescribed in these
By-Laws for regular election or appointment to such office.
SECTION 6. Compensation of Officers.
The compensation of all officers elected by the Board of Directors
shall be approved or authorized by the Board of Directors or by the President
and Chief Executive Officer when so authorized by the Board of Directors or
these By-Laws. (Amended July 7, 1992 and December 6, 1995)
SECTION 7. Chairman of the Board.
The Chairman of the Board shall, when present, preside at all meetings
of the stockholders and of the Board of Directors; have authority to call
special meetings of the stockholders and of the Board of Directors; have
authority to sign and acknowledge in the name and on behalf of the corporation
all stock certificates, contracts or other documents and instruments except when
the signing thereof shall be expressly delegated to some other officer or agent
by the Board of Directors or required by law to be otherwise signed or executed
and, unless otherwise provided by law or by the Board of Directors, may
authorize any officer, employee or agent of the corporation to sign, execute and
acknowledge in his or her place and stead all such documents and instruments. He
or she shall consult with the President and Chief Executive Officer regarding
the strategic direction and business and affairs of the corporation and shall
have such other powers and perform such other duties as from time to time may be
assigned to him or her by the Board of Directors or the Executive Committee.
(Amended July 7, 1992 and December 6, 1995)
SECTION 8. Vice Chairman of the Board
The Vice Chairman of the Board shall, in the absence of the Chairman of
the Board, preside at all meetings of the stockholders and of the Board. He or
she shall have such other powers and perform such other duties as from time to
time may be assigned to him or her by the Board of Directors, the Chairman of
the Board, or the President and Chief Executive Officer. (Amended October 22,
1997)
SECTION 9. President and Chief Executive Officer.
The President and Chief Executive Officer shall have general authority
over the property, business and affairs of the corporation, and over all other
officers, agents and employees of the corporation, subject to the control and
direction of the Board of Directors and the Executive Committee, including the
power to sign and acknowledge in the name and on behalf of the corporation all
stock certificates, contracts or other documents and instruments except when the
signing thereof shall be expressly delegated to some other officer or agent by
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the Board of Directors or required by law to be otherwise signed or executed
and, unless otherwise provided by law or by the Board of Directors, may
authorize any officer, employee or agent of the corporation to sign, execute and
acknowledge in his or her place and stead all such documents and instruments; he
or she shall fix the compensation of officers of the corporation other than his
or her own compensation and that of the senior officers of the corporation and
its principal operating subsidiaries reporting directly to him or her; and he or
she shall approve proposed employee compensation and benefit plans of subsidiary
companies not involving the issuance or purchase of capital stock of the
corporation.
The President and Chief Executive Officer is hereby authorized, without
further approval of the Finance Committee or the Board of Directors:
(a) To approve any expenditure by the corporation of up to $20
million for those expenditure categories presented to the Board
of Directors in the annual budget and up to $10 million for any
expenditure categories not presented, including investments,
leases, options to purchase or lease assets, business
acquisitions and land purchases
(b) To approve individual cost overruns of up to 10% of any amounts
approved by or presented to the Board of Directors.
(c) To approve disposition of assets and interests in securities of
subsidiaries or related commitments, provided that the aggregate
market value of the assets being disposed of in any one such
transaction does not exceed $10 million.
(d) To enter into leases or extensions thereof and other agreements
with respect to the assets of the corporation, including
interests in minerals and real estate, for a term of not more
than 10 years or for an unlimited term if the aggregate initial
rentals, over the term of the lease, including renewal options,
do not exceed $3 million.
(e) To approve increases in the capital budgets of the corporation's
operating subsidiaries provided such increases in the aggregate
do not exceed 10% of the corporation's capital budget for the
fiscal year.
(f) To approve in emergency situations commitments in excess of the
above-described limits provided they are in the interests of the
corporation.
The above delegation of authority does not authorize the corporation or its
subsidiaries to make a significant change in its business or to issue the
corporation's capital stock without the specific approval of the Board of
Directors. Notwithstanding these limitations, the President and Chief Executive
Officer shall have such power and authority as is usual, customary and desirable
to perform all the duties of the office. (Amended July 7, 1992, December 6, 1995
and October 22, 1997)
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SECTION 10. Executive Vice President and Chief Financial Officer.
The Executive Vice President and Chief Financial Officer shall have
responsibility for development and administration of the corporation's financial
plans and all financial arrangements, its insurance programs, its cash deposits
and short term investments, its accounting policies, and its federal and state
tax returns. Such officer shall also be responsible for the corporation's
internal control procedures and for its relationship with the financial
community. (Amended July 7, 1992 and December 6, 1995)
SECTION 11. Executive Vice President, Law.
The Executive Vice President, Law shall be the chief legal advisor of
the corporation and shall have charge of the management of the legal affairs and
litigation of the corporation. (Amended July 7, 1992 and December 6, 1995)
SECTION 12. Secretary.
The Secretary shall record the proceedings of the meetings of the
stockholders and directors, in one or more books kept for that purpose; see that
all notices are duly given in accordance with the provisions of the By-Laws or
as required by law; have charge of the corporate records and of the seal of the
corporation; affix the seal of the corporation or a facsimile thereof, or cause
it to be affixed, to all certificates for shares prior to the issue thereof and
to all documents the execution of which on behalf of the corporation under its
seal is duly authorized by the Board of Directors or otherwise in accordance
with the provisions of the By-Laws; keep a register of the post office address
of each stockholder, director or member, sign with the Chairman of the Board or
the President, certificates for shares of stock of the corporation, the issuance
of which shall have been duly authorized by resolution of the Board of
Directors; have general charge of the stock transfer books of the corporation;
and in general, perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him or her by the Board of
Directors, the Executive Committee, the Chairman of the Board, the President, or
the Executive Vice President, Law. (Amended July 7, 1992 and December 6, 1995)
SECTION 13. Treasurer.
The Treasurer shall have the responsibility for the custody and
safekeeping of all funds of the corporation and shall have charge of their
collection, receipt and disbursement; shall receive and have authority to sign
receipts for all monies paid to the corporation and shall deposit the same in
the name and to the credit of the corporation in such banks or depositories as
the Board of Directors shall approve; shall endorse for collection on behalf of
the corporation all checks, drafts, notes and other obligations payable to the
corporation; shall sign or countersign all notes, endorsements, guaranties and
acceptances made on behalf of the corporation when and as directed by the Board
of Directors; shall give bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors may require;
shall have the responsibility for the custody and safekeeping of all securities
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of the corporation; and in general shall have such other powers and perform such
other duties as are incident to the office of Treasurer and as from time to time
may be prescribed by the Board of Directors or be delegated to him or her by the
Chairman of the Board, the President or the Executive Vice President and Chief
Financial Officer. (Amended July 7, 1992 and December 6, 1995)
SECTION 14. Absence or Disability of Officers.
In the absence or disability of the Chairman of the Board, any Vice
Chairman of the Board or the President, the Board of Directors may designate, by
resolution, individuals to perform the duties of those absent or disabled. The
Board of Directors may also delegate this power to a committee or to a senior
corporate officer. (Amended July 7, 1992 and October 22, 1997)
ARTICLE VI
STOCK CERTIFICATES AND TRANSFER THEREOF
SECTION 1. Stock Certificates.
Except as otherwise permitted by statute, the Certificate of
Incorporation or resolution or resolutions of the Board of Directors, every
holder of stock in the corporation shall be entitled to have a certificate,
signed by or in the name of, the corporation by the Chairman of the Board, the
President, or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares, and the class and series thereof, owned by him or her in the
corporation. Any and all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he or she
were such officer, transfer agent or registrar at the date of issue.
(Amended July 7, 1992)
SECTION 2. Transfer of Stock.
Transfer of shares of the capital stock of the corporation shall be
made only on the books of the corporation by the holder thereof, or by his or
her attorney duly authorized, and on surrender of the certificate or
certificates for such shares. A person in whose name shares of stock stand on
the books of the corporation shall be deemed the owner thereof as regards the
corporation, and the corporation shall not, except as expressly required by
statute, be bound to recognize any equitable or other claim to, or interest in,
such shares on the part of any other person whether or not it shall have express
or other notice thereof.
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SECTION 3. Transfer Agent and Registrar.
The corporation shall at all times maintain a transfer office or agency
in the Borough of Manhattan, The City of New York, in charge of a transfer agent
designated by the Board of Directors (who shall have custody, subject to the
direction of the Secretary, of the original stock ledger and stock records of
the corporation), where the shares of the capital stock of the corporation of
each class shall be transferable, and also a registry office in the Borough of
Manhattan, The City of New York, other than its transfer office or agency in
said city, in charge of a registrar designated by the Board of Directors, where
its stock of each class shall be registered. The corporation may, in addition to
the said offices, if and whenever the Board of Directors shall so determine,
maintain in such place or places as the Board shall determine, one or more
additional transfer offices or agencies, each in charge of a transfer agent
designated by the Board, where the shares of capital stock of the corporation of
any class or classes shall be transferable, and also one or more additional
registry offices, each in charge of a registrar designated by the Board of
Directors, where such shares of stock of any class or classes shall be
registered. Except as otherwise provided by resolution of the Board of Directors
in respect of temporary certificates, no certificates for shares of capital
stock of the corporation shall be valid unless countersigned by a transfer agent
and registered by a registrant authorized as aforesaid.
SECTION 4. Additional Regulations.
The Board of Directors may make such additional rules and regulations
as it may deem expedient concerning the issue, transfer and registration of
certificates for shares of the capital stock of the corporation.
SECTION 5. Lost, Destroyed or Mutilated Certificates.
The Board of Directors may provide for the issuance of new certificates
of stock to replace certificates of stock lost, stolen, mutilated or destroyed,
or alleged to be lost, stolen, mutilated or destroyed, upon such terms and in
accordance with such procedures as the Board of Directors shall deem proper and
prescribe.
ARTICLE VII
DIVIDENDS, SURPLUS, ETC.
Except as otherwise provided by statute or the Certificate of
Incorporation, the Board of Directors may declare dividends upon the shares of
its capital stock either (1) out of its surplus, or (2) in case there shall be
no surplus, out of its net profits for the fiscal year, whenever, and in such
amounts as, in its opinion, the condition of the affairs of the corporation
shall render it advisable. Dividends may be paid in cash, in property, or in
shares of the capital stock of the corporation.
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ARTICLE VIII
SEAL
The Board of Directors shall adopt a suitable corporate seal which
shall be in the form imprinted hereon. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
January of each year.
ARTICLE X
INDEMNIFICATION
SECTION 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a
party to or is involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the corporation or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a Director, officer, employee or agent or in
any other capacity while serving as such a director, officer, employee or agent,
shall be indemnified and held harmless by the corporation to the full extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), or by other applicable law as then in effect, against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts to be paid in settlement) actually and reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators, provided, however, that except
as provided in Section 2 of this Article with respect to proceedings seeking to
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enforce rights to indemnification, the corporation shall indemnify any such
indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a Director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee while a Director or
officer, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the corporation of an undertaking, by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined that such indemnitee is not entitled to be indemnified
under this Section 1, or otherwise.
SECTION 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 of this Article is not paid in full by the
corporation within sixty days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim and, to the extent successful in whole or in part, the indemnitee
shall be entitled to be paid also the expense of prosecuting such suit. The
indemnitee shall be presumed to be entitled to indemnification under this
Article upon submission of a written claim (and, in an action brought to enforce
a claim for an advancement of expenses, where the required undertaking, if any
is required, has been tendered to the corporation), and thereafter the
corporation shall have the burden of proof to overcome the presumption that the
indemnitee is not so entitled. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification
of the indemnitee is proper in the circumstances nor an actual determination by
the corporation (including its Board of Directors, independent legal counsel or
its stockholders) that the indemnitee is not entitled to indemnification shall
be a defense to the suit or create a presumption that the indemnitee is not so
entitled.
SECTION 3. Nonexclusivity of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-Law, agreement, vote of stockholders or
disinterested Directors or otherwise.
SECTION 4. Insurance, Contracts and Funding.
The corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
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have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law. The corporation may enter into
contracts with any indemnitee in furtherance of the provisions of this Article
and may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article.
SECTION 5. Definition of Director and Officer.
Any person who is or was serving as a Director or officer of a wholly
owned subsidiary of the corporation shall be deemed, for purposes of this
Article only, to be a Director or officer of the corporation entitled to
indemnification under this Article.
SECTION 6. Indemnification of Employees and Agents of the Corporation.
The corporation may, by action of the Board of Directors from time to
time, grant rights to indemnification and advancement of expenses to employees
and agents of the corporation with the same scope and effect as the provisions
of this Article with respect to the indemnification and advancement of expenses
of Directors and officers of the corporation.
ARTICLE XI
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Checks, Drafts, Etc.; Loans.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the corporation and in
such manner as shall, from time to time, be determined by resolution of the
Board of Directors. No loans shall be contracted on behalf of the corporation
unless authorized by the Board of Directors. Such authority may be general or
confined to specific circumstances. (Amended July 7, 1992)
SECTION 2. Deposits.
All funds of the corporation shall be deposited, from time to time, to
the credit of the corporation in such banks, trust companies or other
depositories as the Board of Directors may select, or as may be selected by any
officer or officers, agent or agents of the corporation to whom such power may,
from time to time, be delegated by the Board of Directors; and for the purpose
of such deposit, the Chairman of the Board, the President, any Vice President,
the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary, or any other officer or agent to whom such power may be delegated by
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the Board of Directors, may endorse, assign and deliver checks, drafts and other
order for the payment of money which are payable to the order of the
corporation.
ARTICLE XII
AMENDMENTS
These By-Laws may be altered or repealed and new By-Laws may be made by
the affirmative vote, at any meeting of the Board, of a majority of the whole
Board of Directors, subject to the rights of the stockholders of the corporation
to amend or repeal By-Laws made or amended by the Board of Directors by the
affirmative vote of the holders of record of a majority in number of shares of
the outstanding stock of the corporation present or represented at any meeting
of the stockholders and entitled to vote thereon, provided that notice of the
proposed action be included in the notice of such meeting.
(Amended February 22, 1989, July 7, 1992, December 6, 1995, and October 22,
1997)
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Exhibit 5.1
November 18, 1997
Board of Directors
Burlington Resources Inc.
5051 Westheimer
Houston, Texas 77056
Re: Post-Effective Amendment No. 1 on Form S-8 to Form S-4
Registration Statement;
LL&E Employee and Director Option Plans
Gentlemen:
I am Senior Vice President, Law, of Burlington Resources Inc., a
Delaware corporation (the "Company"), and have acted as counsel for the Company
in connection with the Company's Post-Effective Amendment No. 1 on Form S-8 to
Form S-4 Registration Statement, dated November 18, 1997 (the "Post-Effective
Amendment"), relating to the registration under the Securities Act of 1933, as
amended, of the offering of up to 1,957,257 shares (the "Shares") of the common
stock, par value $.01 per share, of the Company for issuance pursuant to The
Louisiana Land and Exploration Company 1997 Long-Term Stock Incentive Plan, The
Louisiana Land and Exploration Company 1988 Long-Term Stock Incentive Plan, The
Louisiana Land and Exploration Company 1995 Stock Option Plan for Non-Employee
Directors and The Louisiana Land and Exploration Company 1990 Stock Option Plan
for Non-Employee Directors (the "Plans").
As the basis for the opinion hereinafter expressed, I have examined
such statutes, regulations, corporate records and documents, certificates of
corporate and public officials and other instruments as I have deemed necessary
or advisable for the purposes of this opinion. In such examination I have
assumed the authenticity of all documents submitted to me as originals and the
conformity with the original documents of all documents submitted to me as
copies. In this opinion, the Shares include the associated rights that may be
issued with the Shares pursuant to the Rights Agreement dated as of December 16,
1988, as amended by Amendment No. 1 dated February 23, 1989 and Amendment No. 2
dated September 30, 1996, between the Company and The First National Bank of
Boston as rights agent.
Based on the foregoing and on such legal considerations as I have
deemed relevant, I am of the opinion that:
(1) The Shares have been duly and validly authorized by the Company.
(2) Upon the issuance by the Company of the Shares and the payment
therefor pursuant to the Plans, the Shares will be validly issued,
fully paid and non-assessable.
I hereby consent to the use of this opinion as an exhibit to the
Post-Effective Amendment and the reference to me in the Post-Effective Amendment
under the heading "Interests of Named Experts and Counsel."
Very truly yours,
L. David Hanower
Senior Vice President, Law
30
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Burlington Resources Inc. on Form S-8 of our report, which includes
an explanatory paragraph for the change in method of accounting for the
impairment of long-lived assets, dated January 15, 1997, on our audits of the
consolidated financial statements of Burlington Resources Inc. as of December
31, 1996 and 1995, and for each of the three years in the period ended December
31, 1996, which report is included in its Annual Report on Form 10-K for the
year ended December 31, 1996. We also consent to the reference to our firm under
the caption "Interests of Named Experts and Counsel."
Coopers & Lybrand L.L.P.
Houston, Texas
November 18, 1997
31
