AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 20, 2000
REGISTRATION NO. 333-________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
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 principal executive offices)
EMPLOYEE SAVINGS PLAN FOR ELIGIBLE EMPLOYEES OF
POCO PETROLEUMS LTD.
(Full title of the plan)
FREDERICK J. PLAEGER, II, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
BURLINGTON RESOURCES INC.
5051 WESTHEIMER, SUITE 1400
HOUSTON, TEXAS 77056
(713) 624-9500
(Name, address and telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE PRICE PER AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) OFFERING PRICE (1) REGISTRATION FEE (1)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share (2) 300,000 shares (3) $32.25 $9,675,000 $2,554.20
===========================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). Estimate is based on the average of the high
and low prices of the Registrant's Common Stock reported on the New
York Stock Exchange Composite Tape on January 14, 2000.
(2) Includes Rights associated with the Common Stock.
(3) Includes an indeterminate number of securities that may be issuable by
reason of stock splits, stock dividends or similar transactions, in
accordance with Rule 416 under the Securities Act of 1933.
Note: Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of
interests to be offered and sold pursuant to the Employee Savings Plan
for Eligible Employees of Poco Petroleums Ltd.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. DOCUMENTS INCORPORATED BY REFERENCE.
The following documents have been filed by Burlington Resources
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and are hereby incorporated by reference in this
Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1999, June 30, 1999 and March 31, 1999;
(3) The Registrant's Current Reports on Form 8-K dated December 21,
1999, December 3, 1999, August 19, 1999, August 18, 1999 and
March 3, 1999;
(4) The definitive Joint Management Information Circular and Proxy
Statement with respect to an Arrangement involving the Registrant
and Poco Petroleums Ltd., filed by the Registrant on Form S-3 on
November 12, 1999;
(5) The definitive Joint Management Information Circular and Proxy
Statement with respect to an Arrangement involving the Registrant
and Poco Petroleums Ltd., filed by the Registrant on Schedule 14A
on October 14, 1999; and
(6) The description of the Registrant's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A (Registration No. 1-9971)
dated June 21, 1988, filed with the Commission under Section 12
of the Exchange Act and as amended by the Registrant's Form 8
dated June 22, 1988.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the issuance of the
securities offered hereby will be passed upon for the Registrant by Fried,
Frank, Harris, Shriver & Jacobson (a partnership including professional
corporations).
The financial statements incorporated by reference in this
Registration Statement from the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1998 have been incorporated herein in reliance
on the report of PricewaterhouseCoopers LLP, independent accountants, given
on the authority of that firm as experts in accounting and auditing.
The financial statements of Poco Petroleums Ltd. incorporated by
reference in this Registration Statement from the Joint Management
Information Circular and Proxy Statements filed by the Registrant have been
incorporated herein in reliance on the report of KPMG LLP, chartered
accountants, given on the authority of that firm as experts in accounting
and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant 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.
Article X of the Registrant'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 Registrant'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 Registrant, or that, being or
having been such a director or officer of the Registrant, such person is or
was serving at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, including an employee benefit plan. The Registrant's
By-Laws also provide that the Registrant 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 Registrant'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
Registrant shall not be liable to the Registrant 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 Registrant for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal. The
DGCL and the Registrant's Certificate of Incorporation, as amended, may
have no effect on claims arising under the federal securities laws.
Officers and directors of the Registrant 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.
The following exhibits are filed as part of this Registration
Statement:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Form of Shareholder Rights Agreement dated as of
December 16, 1998, between the Registrant and
BankBoston, N.A. (filed as Exhibit 1 to Form 8-A, filed
December 1998, and incorporated herein by reference).
4.2 Form of Certificate of Incorporation (filed as Exhibit
3.1 to Form 10-K, filed February 26, 1999, and
incorporated herein by reference).
4.3 Form of By-Laws of the Registrant (filed as Exhibit 3.1
to Form 10-K, filed February 26, 1999, and incorporated
herein by reference).
4.4 The Employee Savings Plan for Eligible Employees of
Poco Petroleums Ltd.*
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson (a
partnership including professional corporations)
regarding the legality of the securities being
registered.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of KPMG LLP.*
23.3 Consent of Fried, Frank, Harris, Shriver & Jacobson
(a partnership including professional corporations)
(included in Exhibit 5.1).
24.1 Powers of Attorney authorizing execution of
Registration Statement on Form S-8 on behalf of certain
directors of Registrant (included on signature pages to
this Registration Statement).
- -------------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned 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 of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and 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 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 purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered herein, 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 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 Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 this
20th day of January, 2000.
BURLINGTON RESOURCES INC.
/s/ Bobby S. Shackouls
--------------------------------
Name: Bobby S. Shackouls
Title: 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 L. David Hanower 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 the 20th day of January, 2000.
SIGNATURE TITLE
- ----------------------------- --------------------------------------------
/s/ Bobby S. Shackouls Chairman of the Board, President and Chief
- ----------------------------- Executive Officer
Bobby S. Shackouls
/s/ H. Leighton Steward Vice Chairman of the Board
- -----------------------------
H. Leighton Steward
/s/ John E. Hagale Executive Vice President and Chief Financial
- ----------------------------- Officer
John E. Hagale
/s/ Philip W. Cook Vice President and Controller (Chief
- ----------------------------- Accounting Officer)
Philip W. Cook
/s/ John V. Byrne Director
- -----------------------------
John V. Byrne
/s/ S. Parker Gilbert Director
- -----------------------------
S. Parker Gilbert
/s/ Laird I. Grant Director
- -----------------------------
Laird I. Grant
- ----------------------------- Director
John T. LaMacchia
/s/ James F. McDonald Director
- -----------------------------
James F. McDonald
/s/ Kenneth W. Orce Director
- -----------------------------
Kenneth W. Orce
/s/ Donald M. Roberts Director
- -----------------------------
Donald M. Roberts
/s/ John F. Schwarz Director
- -----------------------------
John F. Schwarz
/s/ Walter Scott, Jr. Director
- -----------------------------
Walter Scott, Jr.
/s/ William E. Wall Director
- -----------------------------
William E. Wall
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
administrator of the Plan 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 the 20th day of January, 2000.
THE EMPLOYEE SAVINGS PLAN FOR ELIGIBLE EMPLOYEES OF POCO PETROLEUMS LTD.
By: /s/ John E. Hagale
-----------------------------
John E. Hagale
By: /s/ L. David Hanower
-----------------------------
L. David Hanower
By: /s/ William B. Usher
-----------------------------
William B. Usher
The Members of the Committee which
administers the Employee Savings Plan
for Eligible Employees of Poco
Petroleums Ltd.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Form of Shareholder Rights Agreement dated as of
December 16, 1998, between the Registrant and
BankBoston, N.A. (filed as Exhibit 1 to Form 8-A, filed
December 1998, and incorporated herein by reference).
4.2 Form of Certificate of Incorporation (filed as Exhibit
3.1 to Form 10-K, filed February 26, 1999, and
incorporated herein by reference).
4.3 Form of By-Laws of the Registrant (filed as Exhibit 3.1
to Form 10-K, filed February 26, 1999, and incorporated
herein by reference).
4.4 The Employee Savings Plan for Eligible Employees of
Poco Petroleums Ltd.*
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson (a
partnership including professional corporations)
regarding the legality of the securities being
registered.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of KPMG LLP.*
23.3 Consent of Fried, Frank, Harris, Shriver & Jacobson
(a partnership including professional corporations)
(included in Exhibit 5.1).
24.1 Powers of Attorney authorizing execution of
Registration Statement on Form S-8 on behalf of certain
directors of Registrant (included on signature pages to
this Registration Statement).
- ----------------------
* Filed herewith.
EXHIBIT 4.4
EMPLOYEE SAVINGS PLAN
FOR ELIGIBLE EMPLOYEES OF
POCO PETROLEUMS LTD.
ARTICLE 1 - DEFINITIONS
1.1 Whenever used in this Plan:
(a) "Active Participant" shall mean an Employee described in Article
2 in any month contributions are made under Section 3.1 or 3.2.
(b) "Administrator" shall mean the administrator of the Plan, being
Fidelity Investments Canada Limited or any successor appointed by
the Corporation.
(c) "Basic Earnings" shall mean the projected annual salary of the
Employee as determined conclusively by the Corporation, excluding
all bonuses, car allowances and all non cash benefits from
employment.
(d) "Corporation" shall mean Poco Petroleums Ltd., its successors and
assigns and any subsidiary or affiliated company so designated by
the Directors of Poco Petroleums Ltd.
(e) "Credit Balance" shall refer to each Participant's interest under
the Plan from time to time, as described in Article 5, and shall
include:
(i) the investments held by the Trustee for the Participant
under this Plan as of a specified date; and
(ii) amounts held by the Trustee for the Participant in
uninvested cash or in any other form.
(f) "Employee" shall mean a permanent salaried full-time or a
permanent salaried part-time/job share employee of the
Corporation.
(g) "Fund" shall mean the asset balance attributable to each of the
investments described in Section 6. 1.
(h) "Normal Retirement Date" shall mean, in respect of any
Participant who has attained the age of 60, the Transaction Date
coinciding with or next following the date of retirement from
employment with the Corporation of that Participant.
(i) "Participant" shall mean an Employee of the Corporation who is an
Active Participant in the Plan as prescribed in Article 2, or who
has been an Active Participant and still has a Credit Balance in
the Plan.
(j) "Plan" shall mean the Employee Savings Plan for Eligible
Employees of the Corporation as described herein, or as hereafter
amended.
(k) "RRSP" means the Poco Petroleums Ltd. Group Retirement Savings
Plan administered by the Administrator.
(l) "Transaction Date" shall mean the first business day of each
month.
(m) "Trustee" shall mean the trustee of the Plan, being TD Trust
Company or any successor trustee appointed by the Administrator
or the Corporation.
Whenever used in this instrument, the singular shall include the plural,
the plural shall include the singular, the feminine gender shall include
the masculine, and the masculine gender shall include the feminine.
ARTICLE 2 - PARTICIPATION
2.1 Entry Into Plan
---------------
Each Employee of the Corporation shall become eligible to be an Active
Participant in this Plan on the date of employment by the Corporation,
provided the Employee has:
(a) made written application in a manner acceptable to the
Corporation;
(b) executed an election designating the percentage of Basic Earnings
to be contributed to the Plan and, authorized the Corporation to
make payroll deductions for the Participant's contributions as
provided in Article 3 hereof; and
(c) been certified to the Administrator by the Corporation as an
eligible Participant under the Plan.
2.2 Cessation of Participation
--------------------------
An Employee will remain an Active Participant in the Plan until the
earliest of the following dates:
(a) The date the Employee ceases to be employed by the Corporation;
(b) The date the Employee suspends contributions under Section 3.4;
(c) The date the Employee becomes entitled to long term disability
benefits from either the Corporation or the insurers of the
Corporation; or
(d) The date the Employee gives written notice to the Corporation and
the Trustee of withdrawal of the Plan.
ARTICLE 3 - CONTRIBUTIONS
3.1 Participant's Contributions
---------------------------
Each Active Participant may contribute to the Plan any percentage up
to a maximum of 5% of the Active Participant's Basic Earnings (such
percentage being referred to herein as the "Basic Contribution Rate"),
which Basic Contribution Rate shall be established by the Participant
from time to time by notice in writing to the Corporation and which
shall be paid to the Administrator in monthly instalments by the
Corporation deducting the amount of each such instalment from each
payment of Basic Earnings to the Employee. A Basic Contribution Rate
established by an Active Participant shall continue until varied by an
Active Participant by notice in writing to the Corporation.
3.2 Corporation Contributions
-------------------------
The Corporation shall contribute to the Plan, on behalf of each Active
Participant, out of current or prior profits of the Corporation, an
amount equal to 100% of the contributions made by such Active
Participant up to a maximum of 5% of such Active Participant's Basing
Earnings.
The contributions by the Corporation and each Active Participant shall
be made solely in the form of cash or securities of the Corporation,
as determined by the Corporation and an Active Participant may elect
to invest or withdraw such contributions as otherwise provided in this
Plan.
3.3 Excess Contributions
--------------------
(a) Each Active Participant may elect to contribute to the Plan
amounts of the Active Participant's Basic Earnings in excess of
the Basic Contribution Rate ("Excess Contribution Rate"), which
Excess Contribution Rate shall be established at the time of the
establishment of the Basic Contribution Rate and which will be
paid to the Administrator in monthly instalments by the
Corporation deducting the amount of each such instalment from
each payment of Basic Earnings to the Employee. An Excess
Contribution Rate shall continue until varied by an Active
Participant by notice in writing to the Corporation.
(b) Contributions at the Excess Contribution Rate shall be made in
the form of cash or securities of the Corporation, as determined
by the Corporation and an Active Participant may elect to invest
or withdraw the amount received as otherwise provided in this
Plan. Contributions made at the Excess Contribution Rate are not
eligible for matching contributions by the Corporation pursuant
to Section 3.2, but are eligible for investment in the RRSP. All
contributions made at the Excess Contribution Rate shall be
otherwise subject to all of the terms and conditions of this
Plan, including, in particular, Article 4 hereof.
3.4 RRSP Contribution Limits
------------------------
If an Active Participant has in any year directed any portion of such
Active Participant's contributions to be invested in the RRSP, such
Active Participant shall be solely responsible for determining the
maximum amount prescribed by law and such individual may contribute to
one or more registered retirement savings plan in any year and for
ensuring that such maximum amounts are not exceeded. Neither the
Administrator, the Trustee, nor the Corporation shall in any way be
liable in the event an Active Participant contributes any amounts to
the RRSP which are either on their own or in combination with amounts
contributed to other registered retirement savings plans, in excess of
the maximum amounts prescribed by law eligible for income tax
deduction for any one year.
3.5 Conditions and Limitations
--------------------------
(a) Each payment received by the Administrator shall be allocated to
the Credit Balance of an individual Participant in respect of
whom the amount was paid. The Administrator shall allocate
contributions indicated in accordance with prior written
instructions on the forms authorized by the Corporation.
(b) Contributions by, and on behalf of, each Participant shall be
paid to the Administrator by the Corporation not later than
thirty (30) days following the deduction from the Employee's pay,
and credited to the respective Credit Balance of each
Participant.
3.6 Suspension of Contributions
---------------------------
An Active Participant may suspend his contributions by written request
to the Corporation, which request shall be effective on the next
following Transaction Date. Contributions by an Active Participant and
the Corporation shall be suspended during any period during which the
Active Participant is temporarily not employed by the Corporation (on
the inactive list) on account of layoff, leave of absence or other
reason, and is not receiving salary from the Corporation.
ARTICLE 4 - WITHDRAWALS DURING EMPLOYMENT
4.1 Withdrawals of Participant's Contributions
------------------------------------------
Not more frequently than once in each calendar quarter a Participant
may withdraw from the Plan all or any portion of the Participant's
Credit Balance in the Plan without penalty.
4.2 Procedure for Making Withdrawals
--------------------------------
Requests for withdrawals under Section 4.1 above shall be made
directly to the Trustee and shall be made in accordance with such
rules and procedures as may be established by the Trustee and approved
by the Corporation from time to time. Withdrawals may, at the election
of the Participant, be made in the form of cash or in such other form
as may be made available by the Administrator.
ARTICLE 5 - VESTING AND SETTLEMENT OF ACCOUNTS
5.1 Ownership of Own Contributions and Earnings
-------------------------------------------
All contributions to the Plan made by a Participant or by the
Corporation on behalf of a Participant, together with any income,
capital gain and other appreciation, less any capital loss, expense,
charge and other such loss, allocated or reallocated to a
Participant's Credit Balance shall be nonforfeitable and shall
continually vest in the Participant.
5.2 Payment of Benefits
-------------------
The total of a Participant's Credit Balance shall be issued to the
Participant or, in the event of death, to the Participant's
beneficiary, as soon as is administratively feasible after the
earliest of:
(i) The day on which the Employee ceases to be employed by the
Corporation;
(ii) The day on which the Participant gives notice of withdrawal from
the Plan.
(iii) The death of the Employee;
(iv) The Employee's Normal Retirement Date; or
(v) The termination or winding up of the Plan by the Corporation.
ARTICLE 6 - INVESTMENT
6.1 Investment
----------
(a) All contributions in the Plan shall be invested in such
investment opportunities as may be designated by the Benefits
Committee from time to time.
(b) Limitations on Designation of Investments
-----------------------------------------
(i) The Administrator shall execute all allocation requests as
soon as administratively feasible. However, neither the
Administrator nor the Corporation shall be liable for any
delay in the execution of any requests. All securities of
the Corporation required for the purposes of this Plan shall
be purchased by the Administrator in the open market no
later than the end of the first full week of the month
following the month of contribution.
(ii) Income, if any, from investments shall be reinvested by the
Administrator in the same Fund.
ARTICLE 7 - ACCOUNTS TO BE RENDERED BY ADMINISTRATOR
7.1 Retention and Issuance of Information by Administrator
------------------------------------------------------
The Administrator shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions. As soon
as practical after March 31st, June 30th, September 30th and December
31st of each calendar year, but in any event, no longer than 45 days
after each such date, the Administrator, as prescribed herein, shall
furnish the following reports and statements:
(a) A report to the Corporation showing the operations of the Plan
for the preceding three month period, including a summary of the
transactions and a statement of assets held and such other
statements as shall be requested by the Corporation and agreed to
by the Administrator;
(b) A statement to each Participant or beneficiary of the account of
each Participant showing as of the end of such three month period
the (i) total amount of contributions of the Participant; (ii)
total amount of contributions made by the Corporation on behalf
of the Participant; (iii) any expenses, withdrawals, losses or
other charges made against the Participant's account during such
period; (iv) all income or realized capital gains or losses
credited to the Participant's account during such period; and (v)
the amount of the Participant's Credit Balance; and
(c) Such additional reports as the Corporation may from time to time
request of the Administrator.
7.2 Issuance of Statement
---------------------
A statement as provided for in Section 7.1(b) of this Article 7 shall
be rendered to each Participant or beneficiary and to the Corporation
within 45 days after an event described in Section 5.3, and an
accounting and statements as provided for in Section 7.1(a) and (b) of
this Article shall be rendered by the Administrator, within 45 days
after the resignation or removal of the Administrator, for the period
following the close of the last three month period to the date of
resignation or removal.
ARTICLE 8 - TRUST FUND
8.1 Establishing Trust Fund
-----------------------
A trust fund shall be established by the Administrator to which all
contributions by the Participants and the Corporation shall be made.
8.2 Allocation to Employee Accounts
-------------------------------
Each payment made to the Administrator shall be allocated to
Participants by the Administrator in the year in which it is received
by the Administrator. All investments, earnings, including interest,
dividends, realized gains or losses shall be allocated to the
Participants in the year in which they are received.
8.3 Limitation on Ownership of Assets
---------------------------------
The trust fund shall not form any part of the revenue or assets of the
Corporation, nor at any time shall any part of the trust fund be used
for or diverted to any purposes other than for the exclusive benefit
of the Participants and their beneficiaries. No person shall have any
interest in or right to the trust fund or any part thereof, except as
expressly provided in the Plan. No liability for the payment of
benefits under the Plan shall be imposed upon the Corporation or the
officers, directors or shareholders of the Corporation.
ARTICLE 9 - ADMINISTRATION
9.1 Administration of Plan
----------------------
The administration of the Plan shall be the responsibility of the
Administrator, provided that the Administrator may refer to and
consult with the Corporation and the Administrator's professional
advisers should the Administrator feel such action is warranted by
circumstances.
9.2 Administrator Authority for Payment
-----------------------------------
The Administrator is duly authorized and directed to execute all
agreements and elections and to do all things necessary or advisable
for the administration and maintenance of the Plan and the payments of
benefits to the Participants and their beneficiaries.
9.3 Administrator Authority for Interpretation
------------------------------------------
At the request of the Administrator, the Corporation shall establish
the facts and make final rulings concerning all questions regarding
eligibility for withdrawals under Article 4, or distributions under
Article 5. The Administrator shall conclusively decide on all matters
relating to the administration and application of the terms of the
Plan and the Corporation shall conclusively decide on all matters
relating to the interpretation of the terms of the Plan.
9.4 Records and Accounts
--------------------
The Administrator shall keep or cause to be kept such records and
accounts as may be necessary or appropriate for the discharge of its
duties.
9.5 Expenses
--------
Any expenses, including fees of the Administrator, incurred in the
administration of the Plan shall be paid by the Corporation and, until
paid, shall constitute a charge upon the Fund.
9.6 Explanation of Plan
-------------------
The Corporation shall ensure that each new Employee is advised in
writing of a Participant's rights under the Plan.
9.7 Voting of Shares
----------------
The Administrator shall have all voting rights on securities of the
Corporation held under Section 6.1.
ARTICLE 10 - MISCELLANEOUS PROVISIONS
10.1 Non-Assignable Assets
---------------------
Neither a Participant's Credit Balance in the Plan, nor any cash,
securities, or other property therein, shall be assignable or subject
to garnishment, attachment, execution or levy of any kind or used as
collateral by the Participant or beneficiary and no amount shall be
payable to a Participant or a beneficiary by way of loan.
10.2 Limitation on Liability of Corporation and Officers
---------------------------------------------------
Except for gross negligence or malfeasance, no officer, director or
Employee of the Corporation shall be liable for any action or failure
to act with respect to this Plan. The Corporation hereby agrees to
indemnify and hold harmless its officers, directors and employees and
to defend the same against any and all claims or liabilities which may
be asserted against any of them by reason of any action or omission in
the administration of the Plan, except in any case of fraud or wilful
wrongdoing.
10.3 Limitation on Rights of Participant
-----------------------------------
The establishment and implementation of this Plan shall not constitute
an enlargement of any rights to which an Employee is entitled apart
from this Plan.
10.4 Submissions of Plan to Authorities
----------------------------------
The establishment of this Plan is subject to obtaining such approval
from the relevant tax authorities, as is necessary to establish that
the Corporation is entitled to deduct the amounts of its contributions
and payments as expenses, before taxes, under the provisions of the
Income Tax Act, or any other applicable legislation, as is now in
effect or as may be amended or adopted.
10.5 Designation of Beneficiaries
----------------------------
Each Participant shall designate a beneficiary to receive all proceeds
under the Plan in the event of the death of the Participant prior to
distribution. If there is no beneficiary living at the date of a
Participant's death, the Administrator shall make payments to the duly
authorized representative of the Participant's Estate.
10.6 Written Notices Required
------------------------
Any notice or election required or permitted to be made by any
provision of this Plan, shall be made in accordance with such rules
and procedures as may be established by the Administrator and approved
by the Corporation from time to time.
10.7 Advice to Administration of Amendments
--------------------------------------
The Corporation will advise the Administrator of all amendments to the
Plan.
ARTICLE 11 - FUTURE OF THE PLAN
11.1 Continuation of Plan
--------------------
The Corporation intends to maintain this Plan in force indefinitely
but necessarily reserves the right to amend or discontinue the Plan,
in whole or in part, by resolution of its Board of Directors, should
future conditions warrant such action in the opinion of the
Corporation. The Administrator shall have the right to approve any
amendments to the Plan which would affect the Administrator's duties
and responsibilities hereunder.
11.2 Assured Benefits
----------------
No amendment to the Plan shall operate to reduce the benefits which
have accrued to and vested in the Participants of the Plan prior to
the date of the amendment. In the event of discontinuance, whether in
whole or in part, the Corporation cannot recover any sums paid to the
date thereof and all the assets of the Plan must and shall be applied
for the benefit of the Participants and/or their beneficiaries pro
rata to their Credit Balances.
11.3 Corporation Discontinuance
--------------------------
If the Corporation shall have been wound up or become bankrupt, or if
the Plan should be terminated, the assets of the Plan shall, within 90
days thereof, be applied for the benefit of Participants and their
beneficiaries in accordance with subsection 11.2 of this Article.
11.4 Limit of Liability
------------------
No liability shall attach to the Corporation or a liquidator or a
trustee in bankruptcy of the Corporation in connection with such
distribution if made in good faith.
EXHIBIT 5.1
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson
(a partnership including professional corporations)]
January 20, 2000
Burlington Resources Inc.
5051 Westheimer, Suite 1400
Houston, Texas 77056
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
Burlington Resources Inc. (the "Company") is filing with the
Securities and Exchange Commission a Registration Statement on Form S-8
(the "Registration Statement") with respect to an aggregate of 300,000
shares (the "Shares") of common stock, par value $.01 per share, of the
Company, issuable pursuant to the Employee Savings Plan for Eligible
Employees of Poco Petroleums Ltd. (the "Plan").
All assumptions and statements of reliance herein have been made
without any independent investigation or verification on our part except to
the extent otherwise expressly stated, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items
relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company, as we have deemed necessary or appropriate
for the purposes of this opinion. In all examinations, we have assumed the
legal capacity of all natural persons executing documents, the genuineness
of all signatures, the authenticity of original and certified documents and
the conformity to original or certified copies of all copies submitted to
us as conformed or reproduction copies. As to various questions of fact
relevant to the opinions expressed herein, we have relied upon, and assume
the accuracy of, representations and warranties contained in documents and
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the documents with their covenants and agreements
contained therein. We also have assumed that any future changes to the
terms and conditions of the Plan will be duly authorized by the Company and
will comply with all applicable laws.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that
the Shares, when issued and paid for (with the consideration received by
the Company being not less than the par value thereof) in accordance with
the provisions of the Plan and the applicable option agreements thereunder,
will be duly authorized, validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, as currently in effect, the
provisions of the Delaware Constitution applicable to corporations and the
reported judicial decisions interpreting those laws.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving such consent, we do not hereby admit
that we are in the category of such persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 20, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to
Shareholders of Burlington Resources Inc., which is incorporated by
reference in Burlington Resources Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1998. We also consent to the reference to us under
the heading "Interests of Named Experts and Counsel" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
January 20, 2000
EXHIBIT 23.2
The Board of Directors
Burlington Resources Inc.
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Burlington Resources Inc. dated January 20, 2000 of our
report dated February 18, 1999 (except as to Note 10 which is as of August
18, 1999) with respect to the consolidated balance sheets of Poco
Petroleums Ltd. as of December 31, 1998 and 1997 and the consolidated
statements of earnings, deficit and cash flows for each of the years in the
three year period ended December 31, 1998 which report appears in the Joint
Management Information Circular Proxy Statement on Schedule 14-A filed
October 14, 1999.
/s/ KPMG LLP
Calgary, Canada
January 20, 2000
