INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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3.(i) Restated Certificate of Incorporation of Occidental, dated
November 12, 1999 (incorporated by reference to Exhibit 3.(i) to
the Annual Report on Form 10-K of Occidental for the fiscal year
ended December 31, 1999).
3.(i)(a) Certificate of Change of Location of Registered Office and of
Registered Agent, dated July 6, 2001 (incorporated by reference
to Exhibit 3.1(i) to the Registration Statement on Form S-3 of
Occidental, File No. 333-82246).
3.(ii) By-laws of Occidental, as amended through February 12, 2004
(filed as Exhibit 3.(ii) to the Annual Report on Form 10-K of
Occidental, File No. 1-9210).
5.1 Opinion of Linda S. Peterson, Esq.
23.1 Consent of Linda S. Peterson, Esq. (Included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (Reference is hereby made to page 4).
99.1 Occidental Petroleum Corporation 1996 Restricted Stock Plan for
Non-Employee Directors, as amended April 30, 2004.
EXHIBIT 5.1
[OXY LOGO] OCCIDENTAL PETROLEUM CORPORATION 10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
TELEPHONE (310) 208-8800
FACSIMILE (310) 443-6690
LINDA S. PETERSON
ASSOCIATE GENERAL COUNSEL
Direct Telephone (310) 443-6189
Direct Facsimile (310) 443-6737
Email linda_peterson@oxy.com
May 3, 2004
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
Re: Occidental Petroleum Corporation
Registration Statement on Form S-8
Occidental Petroleum Corporation
1996 Restricted Stock Plan for Non-Employee Directors
-----------------------------------------------------
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental Petroleum Corporation, a
Delaware corporation ("Occidental"), and have acted as counsel to Occidental in
connection with the preparation of the above-referenced Registration Statement
on Form S-8, submitted by Occidental to the Securities and Exchange Commission
("Commission") on May 3, 2004 (the "Registration Statement"). The Registration
Statement relates to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of 100,000 shares (the "Shares") of Common Stock, par
value $.20 per share, of Occidental. The Shares are to be issued in accordance
with the Occidental Petroleum Corporation 1996 Restricted Stock Plan for
Non-Employee Directors (the "Plan").
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
such records of Occidental and all such agreements, certificates of public
officials, certificates of officers or other representatives of Occidental and
others and such other documents, certificates and records as I have deemed
necessary or appropriate as a basis for the opinions set forth herein,
including, without limitation, (i) the Registration Statement (together with the
form of prospectus forming a part thereof), (ii) the Restated Certificate of
Incorporation and By-laws of Occidental, as amended to date, (iii) copies of
certain resolutions adopted by the Board of Directors of Occidental, relating to
the adoption of the Plan, the filing of the Registration Statement and any
amendments or supplements thereto, and the issuance of the Shares and related
matters, (iv) copies of the action adopted at the Annual Meeting of Stockholders
approving the amendment of the Plan to increase the number of shares available
for issuance and (v) the Plan. In my examination, I have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as certified, conformed or photostatic copies
and the authenticity of the originals of such copies. As to any facts material
to the opinions expressed herein which I have not independently established or
verified, I have relied upon statements and representations of officers and
other representatives of Occidental and others.
Occidental Petroleum Corporation
May 3, 2004
Page 2
I am a member of the California and New York Bars and for purposes of this
opinion do not hold myself out as an expert on, nor do I express any opinion as
to, the laws of any jurisdiction other than the General Corporation Law of the
State of Delaware.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized and, when issued and paid for in accordance
with the Plan, will be validly issued, fully paid and nonassessable.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act and is furnished to you solely
for your benefit in connection with the filing of the Registration Statement and
is not to be used, circulated, quoted or otherwise referred to for any other
purpose without my prior written consent. I hereby consent to the filing of this
opinion with the Commission as Exhibit 5 to the Registration Statement. I also
consent to the reference to me under the heading "Legal Matters" in the
Registration Statement. In giving this consent, I do not thereby admit that I am
included in the category of persons whose consent is required under Section 7 of
the 1933 Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ LINDA S. PETERSON
Linda S. Peterson
[KPMG LOGO]
KPMG LLP
Suite 2000
355 South Grand Avenue Telephone 213 972 4000
Los Angeles, CA 90071-1568 Fax 213 622 1217
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors, Occidental Petroleum Corporation
We consent to the incorporation by reference in the registration statement
on Form S-8 of Occidental Petroleum Corporation of our report dated February 13,
2004, with respect to the consolidated balance sheets of Occidental Petroleum
Corporation as of December 31, 2003 and 2002, and the related consolidated
statements of operations, stockholders' equity, comprehensive income, and cash
flows for each of the years in the three-year period ended December 31, 2003 and
the related financial statement schedule, which report appears in the December
31, 2003 10-K of Occidental Petroleum Corporation and subsidiaries. Our report
refers to changes in the method of accounting for inventories purchased from
third parties, in the method of accounting for asset retirement obligations, in
the method of accounting for certain financial instruments with characteristics
of both liabilities and equity, in the method of accounting for the impairment
of goodwill and other intangibles, and in the method of accounting for
derivative instruments and hedging activities.
/s/ KPMG LLP
Los Angeles, California
May 3, 2004
EXHIBIT 99.1
OCCIDENTAL PETROLEUM CORPORATION
1996 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(AS AMENDED THROUGH APRIL 30, 2004)
1. PURPOSE. The purpose of the Occidental Petroleum Corporation 1996
Restricted Stock Plan for Non-Employee Directors (the "Plan") is to provide
ownership of Occidental Petroleum Corporation's ("Occidental") Common Stock to
Non-Employee Directors in order to more closely align director and stockholder
interests, to provide a competitive compensation program for directors and to
enhance Occidental's ability to attract and retain top-quality directors.
2. ADMINISTRATION OF THE PLAN.
(a) Members of the Committee. The Plan shall be administered by the
Compensation Committee of the Board (the "Committee"). Members of the
Committee shall be appointed from time to time by the Board and shall serve
at the pleasure of the Board. Any Committee member may resign at any time
upon written notice to the Board.
(b) Authority of the Committee. The Committee shall adopt such rules as it
may deem appropriate in order to carry out the purpose of the Plan. All
questions of interpretation, administration, and application of the Plan
shall be determined by a majority of the members of the Committee then in
office, except that the Committee may authorize any one or more of its
members, or any officer of Occidental, to execute and deliver documents on
behalf of the Committee. The determination of such majority shall be final
and binding in all matters relating to the Plan. Determinations made with
respect to any individual Non-Employee Director shall be made without
participation by such Non-Employee Director in such determination. No
member of the Committee shall be liable for any act done or omitted to be
done by such member or by any other member of the Committee in connection
with the Plan, except for such member's own willful misconduct or as
expressly provided by statute.
3. STOCK RESERVED FOR THE PLAN. The number of shares of Common Stock
authorized for issuance under the Plan is 250,000, subject to adjustment
pursuant to Section 8 hereof. Shares of Common Stock delivered hereunder may be
Common Stock of original issuance or Common Stock held in treasury, or a
combination thereof.
4. AWARDS OF RESTRICTED STOCK.
(a) Annual Awards. On the first business day following each annual meeting
commencing with the 1999 Annual Meeting, each Non-Employee Director who is
then a member of the Board shall be awarded two thousand five hundred
(2,500) whole shares of Restricted Stock.
(b) Special Awards. On the first business day following each annual
meeting, each Non-Employee Director who is then serving as a Chairman of
one or more committees of the Board or as Lead Independent Director shall
be awarded three hundred (300) whole shares of Restricted Stock with
respect to each such position, in addition to any Award he or she may be
granted pursuant to Section 4(a) above.
(c) Interim Awards. If a Non-Employee Director is elected other than at an
annual meeting, then on the first business day following his or her
election as a member of the Board, such newly elected Non-Employee Director
shall be awarded the number of shares (rounded to the nearest whole share)
of Restricted Stock equal to two thousand five hundred (2,500) multiplied
by a fraction, the numerator of which is the number of regularly scheduled
Board meetings remaining between the date of his or her election and the
next annual meeting and the denominator of which is the number of regularly
scheduled Board meetings between the most recent annual meeting and the
next annual meeting.
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(d) Effectiveness of Awards. Notwithstanding anything in this Plan to the
contrary, no Award made pursuant to the Plan or any amendment to the Plan
shall be effective prior to the requisite approval of the Plan or such
amendment by the stockholders of Occidental. In the event requisite
stockholder approval is not obtained, the Plan, and any Award thereunder,
shall be null and void.
5. TERMS AND CONDITIONS OF AWARDS. Restricted Stock awarded to a Non-Employee
Director under the Plan shall be subject to the following restrictions:
(a) During the period of the director's service as a member of the Board
(the "Restriction Period"), any shares of Common Stock awarded under the
Plan shall not be sold, assigned, pledged, hypothecated or otherwise
transferred or encumbered. During the Restriction Period, the certificate
representing such shares of Common Stock shall contain a statement
referring to the restrictions contained in this Section 5(a) and such
certificate shall be held by the Company. Except as provided in Section 9,
as soon as practicable after the lapse of restrictions applicable to
Restricted Stock, all shares of Restricted Stock held by the Company for
the benefit of a Non-Employee Director shall be given to such Non-Employee
Director, free and clear of any restrictions applicable thereto during the
Restriction Period.
(b) Whenever cash dividends are paid by Occidental on outstanding Common
Stock, each Non-Employee Director will receive in cash all dividends paid
on the Restricted Stock then held by the Company for the benefit of such
Non-Employee Director on the record date for the dividend. Common Stock
distributed in connection with a stock split or stock dividend, and other
property distributed as a dividend, shall be subject to restrictions to the
same extent as the Restricted Stock with respect to which such Common Stock
or other property has been distributed.
(c) Each Non-Employee Director hereunder may designate from time to time
any beneficiary or beneficiaries (who may be designated concurrently,
contingently or successively) to whom any shares of Restricted Stock and
any cash amounts are to be paid in case of the Non-Employee Director's
death before receipt of any part or all of such Restricted Stock and cash.
Each designation will revoke all prior designations by the Non-Employee
Director, shall be in a form prescribed by the Committee, and will be
effective only when filed by the Non-Employee Director, in writing, with
the Secretary of Occidental. Reference in the Plan to a Non-Employee
Director's "beneficiary" at any date shall include such persons designated
as concurrent beneficiaries on the Non-Employee Director's beneficiary
designation form then in effect. In the absence of any such designation,
any shares of Restricted Stock being held by the Company for the benefit of
such Non-Employee Director at the time of his or her death may, in the sole
discretion of the Committee, be paid to such Non-Employee Director's estate
in a cash lump sum.
6. FOREIGN PARTICIPANTS. In order to facilitate the making of an Award, the
Board may provide for such special terms for Awards to Non-Employee Directors
who are foreign nationals, as the Board may consider necessary or appropriate to
accommodate differences in local law, tax policy or custom. Moreover, the Board
may approve such supplements to, or amendments, restatements or alternative
versions of, the Plan as it may consider necessary or appropriate for such
purposes without thereby affecting the terms of the Plan as in effect for any
other purpose, and the Secretary or other appropriate officer of Occidental may
certify any such document as having been approved and adopted in the same manner
as the Plan; provided that, no such supplements, amendments, restatements or
alternative versions shall include any provisions that are inconsistent with the
terms of the Plan, as then in effect, unless the Plan could have been amended to
eliminate the inconsistency without further approval by the stockholders of
Occidental.
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7. CHANGE IN CONTROL. Upon the occurrence of a Change in Control, all
restrictions affecting Restricted Shares shall lapse and such shares shall be
delivered to each Non-Employee Director as soon as practicable thereafter;
provided that, the Committee may, in its sole discretion authorize the payment
of cash, in lieu of the issuance of such shares.
8. ADJUSTMENTS. The Board may make or provide for such adjustments in the
number of shares of Restricted Stock awarded under the Plan, as the Board may in
good faith determine to be required in order to prevent dilution or expansion of
the rights of Non-Employee Directors that otherwise would result from (i) any
stock dividend, stock split, combination of shares recapitalization or other
change in the capital structure of the Company or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of warrants or
other rights to purchase securities or any other corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Board may provide in substitution for any or all
outstanding Restricted Stock Awards under the Plan such alternative
consideration as it may in good faith determine to be appropriate under the
circumstances and may require the surrender of all Awards so replaced. Moreover,
the Board may, on or after the date of any Award, provide in the agreement
evidencing such Award that the Non-Employee Director may elect to receive an
equivalent Award in respect of securities of the surviving entity of any merger,
consolidation or other transaction or event having similar effect, or the Board
may provide that the Non-Employee Director will automatically be entitled to
receive such an equivalent Award. The Board may also provide for such
adjustments in the maximum number of shares of Common Stock specified in Section
3 as the Board, in good faith, determines to be appropriate in order to reflect
any transaction or event described in this Section 8.
9. WITHHOLDING. Occidental shall defer making payments or deliveries under the
Plan until satisfactory arrangements have been made for the payment of any
federal, state, local or foreign taxes (whether or not required to be withheld)
with respect to such payment or delivery. At the discretion of the Committee,
any such arrangements may without limitation include relinquishment of a portion
of any such payment or benefit or the surrender of outstanding Common Stock, and
any agreement pertaining to an Award may make such relinquishment the mandatory
form of satisfying such taxes. The Committee may also make similar arrangements
with respect to the payment of any taxes with respect to which withholding is
not required.
10. RIGHTS OF NON-EMPLOYEE DIRECTORS.
(a) Retention as Non-Employee Director. Nothing contained in the Plan or
with respect to any Award shall interfere with or limit in any way the
right of the stockholders of Occidental to remove any Non-Employee Director
from the Board, nor confer upon any Non-Employee Director any right to
continue in the service of Occidental as a Non-Employee Director.
(b) Nontransferability. No right or interest of any Non-Employee Director
in any Award shall be assignable or transferable during the lifetime of the
Non-Employee Director, either voluntarily or involuntarily, or subjected to
any lien, directly or indirectly, by operation of law, or otherwise,
including execution, levy, garnishment, attachment, pledge or bankruptcy.
In the event of a Non-Employee Director's death, a Non-Employee Director's
rights and interests in his or her Award shall be transferable by
testamentary will or the laws of descent and distribution. If in the
opinion of the Committee a person entitled to payments or to exercise
rights with respect to the Plan is disabled from caring for his or her
affairs because of mental condition, physical condition or age, payment due
such person may be made to, and such rights shall be exercised by, such
person's guardian, conservator or other legal personal representative upon
furnishing the Committee with evidence satisfactory to the Committee of
such status.
3
(c) Except to the extent restricted under the terms of an agreement
evidencing a grant of Restricted Stock, a Non-Employee Director awarded
such stock shall have all of the rights of a stockholder, including,
without limitation, the right to vote Restricted Stock and the right to
receive dividends thereon.
11. AMENDMENT; TERMINATION. The Board may at any time and from time to time
alter, amend, suspend or terminate the Plan in whole or in part; provided
that, no amendment which requires stockholder approval shall be effective
unless the same shall be approved by the stockholders of Occidental
entitled to vote thereon. Stockholder approval shall be required for any
amendment to the Plan that would (a) materially increase the benefits
accruing to participants under the Plan, (b) materially increase the number
of securities which may be issued under the Plan, or (c) materially modify
the requirements as to eligibility for participation in the Plan.
Notwithstanding the foregoing, no amendment shall affect adversely any of
the rights of any Non-Employee Director, without such Non-Employee
Director's consent."
12. GENERAL RESTRICTIONS.
(a) Regulations and Offer Approvals. The obligation of Occidental to
deliver Common Stock with respect to any Award under the Plan shall be
subject to all applicable laws, rules and regulations, including all
applicable federal and state securities laws, and the obtaining of all such
approvals by governmental agencies as may be deemed necessary or
appropriate by the Committee.
(b) Each Award granted under the Plan is subject to the requirement that,
if at any time the Committee determines, in its absolute discretion, that
the listing, registration or qualification of Common Stock issuable
pursuant to the Plan is required by any securities exchange or under any
state or federal law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in
connection with, such Award or the issuance of Common Stock, no such Award
or payment shall be made or Common Stock issued, in whole or in part,
unless listing, registration, qualification, consent or approval has been
effected or obtained free of any conditions not acceptable to the
Committee. Nothing herein shall be deemed to require Occidental to apply
for or to obtain such listing, registration or qualification.
(c) In the event that the disposition of Common Stock acquired pursuant to
the Plan is not covered by a then current registration statement under the
Securities Act and is not otherwise exempt from such registration, such
Common Stock shall be restricted against transfer to the extent required by
the Securities Act or regulations thereunder, and Occidental may require
any Non-Employee Director to whom Common Stock is granted, as a condition
of receiving such Common Stock, to give written assurances in substance and
form satisfactory to Occidental and its counsel to the effect that such
person is acquiring the Common Stock for his or her own account and not
with any present intention of selling or otherwise distributing the same,
and to such other effects as Occidental deems necessary or appropriate in
order to comply with federal and applicable state securities laws.
13. GOVERNING LAW. The Plan and all rights hereunder shall be construed in
accordance with and governed by the laws of the State of Delaware.
14. PLAN INTERPRETATION. The Plan is intended to comply with Rule 16b-3 and
shall be construed to so comply.
15. HEADINGS. The headings of sections and subsections herein are included
solely for convenience of reference and shall not affect the meaning of any of
the provisions of the Plan.
16. TERM OF PLAN. This Plan shall become effective on the Effective Date, and
shall remain in effect for ten (10) years from such date, unless sooner
terminated by the Board.
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17. DEFINITIONS. For purposes of the Plan, the following terms shall have the
following meanings:
(a) "Award" means any award of Restricted Stock under the Plan.
(b) "Board" means the Board of Directors of Occidental.
(c) "Change in Control" means a change in control of Occidental, which
shall be deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of
Occidental or any company owned, directly or indirectly, by the
stockholders of Occidental in substantially the same proportions as
their ownership of the Common Stock of Occidental), is or becomes,
after the Effective Date of the Plan, the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of Occidental (not including in the securities
beneficially owned by such person any securities acquired directly
from Occidental or its affiliates) representing 50 percent (50%) or
more of the combined voting power of Occidental's then-outstanding
securities; or
(ii) during any period of two consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning
of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement
with Occidental to effect a transaction described in clause (i),
(iii), or (iv) of this definition) whose election by the Board or
nomination for election by Occidental's stockholders was approved by a
vote of at least two thirds (2/3) of the directors then still in
office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority of the Board;
or
(iii) the stockholders of Occidental approve a merger or consolidation
of Occidental with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of
Occidental outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity), in combination with the
ownership of any trustee or other fiduciary holding securities under
any employee benefit plan of Occidental, at least 50 percent of the
combined voting power of the voting securities of Occidental or such
surviving entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to implement a
recapitalization of Occidental (or similar transaction) in which no
person acquires more than 50 percent (50%) of the combined voting
power of Occidental's then-outstanding securities; or (iv) the
stockholders of Occidental approve a plan of complete liquidation of
Occidental or an agreement for the sale or disposition of all or
substantially all of Occidental's assets; provided that, prior to the
occurrence of any of the events described in clauses (i) through (iii)
above, the Board may determine that such an event shall not constitute
a Change of Control for purposes of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor thereto.
(e) "Common Stock" means shares of the common stock, par value $.20 per
share, of Occidental.
(f) "Company" means Occidental Petroleum Corporation and its subsidiaries,
collectively.
(g) "Effective Date" means April 26, 1996 or the date of approval of the
Plan by the stockholders of Occidental, whichever comes first.
5
(h) "Exchange Act" means the Securities Exchange Act of 1934, as now or
hereafter construed, interpreted and applied by regulations, rulings and
cases.
(i) "Fair Market Value" means the per share fair market value of Common
Stock as determined by such methods or procedures as shall be established
from time to time by the Committee. Unless otherwise determined by the
Committee in good faith, the per share Fair Market Value of Common Stock as
of a particular date shall mean (i) the closing sales price per share of
Common Stock on the national securities exchange on which the Common Stock
is principally traded, for the last preceding date on which there was a
sale of such Common Stock on such exchange, or (ii) if the shares of Common
Stock are then traded in an over-the-counter market, the average of the
closing bid and asked prices for the shares of Common Stock in such
over-the-counter market for the last preceding date on which there was a
sale of such Common Stock in such market, or (iii) if the shares of Common
Stock are not then listed on a national securities exchange or traded in an
over-the-counter market, such value as the Committee, in its sole
discretion, shall determine.
(j) "Non-Employee Director" means a member of the Board who is neither an
officer nor employee of the Company.
(k) "Plan" means this Occidental Petroleum Corporation 1996 Restricted
Stock Plan For Non-Employee Directors.
(l) "Restriction Period" means, in respect of Restricted Stock, the period
referenced in Section 5(a).
(m) "Restricted Stock" means a grant of shares of Common Stock, which
shares are subject to the restrictions on transfer described in Section
5(a).
(n) "Rule 16b-3" means Rule 16b-3, as promulgated and amended from time to
time by the Securities and Exchange Commission under the Exchange Act, or
any successor rule to the same effect.
