As filed with the Securities and Exchange Commission on April 29, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OCCIDENTAL PETROLEUM CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4035997
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
OCCIDENTAL PETROLEUM CORPORATION
2001 INCENTIVE COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
DONALD P. DE BRIER, ESQ., GENERAL COUNSEL
OCCIDENTAL PETROLEUM CORPORATION
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA
(310) 208-8800
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
===================== ================== ================= ================== ==================
Proposed Proposed
Amount Maximum Maximum
Title of Securities to be Offering Price Aggregate Amount of
to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- --------------------- ------------------ ----------------- ------------------ ------------------
Common Stock,
$.20 par value
(including 10,000,000 (2) $30.03 $300,300,000.00 $24,294.27
Preferred Stock
Purchase Rights)
===================== ================== ================= ================== ==================
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the
amount of the registration fee based on the average of the high and low
price for the Common Stock on April 25, 2003.
(2) Includes an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the plan as the results of any future stock split, stock dividend or
similar adjustment of the outstanding Common Stock of the Registrant.
PART II
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Annual Report on Form 10-K of Occidental Petroleum Corporation
("Occidental" or the "Registrant") for the year ended December 31, 2002;
(b) Current Reports on Form 8-K, dated January 29, 2003, April 22, 2003,
and April 25, 2003; and
(c) The description of the Common Stock contained in the Registration
Statement on Form 8-B, dated June 26, 1986 (as amended by Form 8, dated December
22, 1986, Form 8, dated February 3, 1988, Form 8-B/A, dated July 12, 1993, Form
8-B/A, dated March 21, 1994, and Form 8-B/A, dated November 2, 1995 and
including any amendment or report filed for the purpose of updating such
descriptions subsequent to the date of this Registration Statement).
All documents filed by the Registrant or the Occidental Petroleum
Corporation 2001 Incentive Compensation Plan (the "Plan") pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date hereof prior to the filing of a post-effective amendment which
indicates that the securities offered hereby have been sold or which deregisters
the securities covered hereby then remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of delivery of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock registered pursuant hereto has been passed
upon by Linda S. Peterson, an Associate General Counsel of the Registrant. Ms.
Peterson beneficially owns, and has rights to acquire under employee stock
options, an aggregate of less than 1% of the outstanding shares of Common Stock
of Occidental.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers under certain circumstances for liabilities incurred in connection
with their activities in such capacities (including reimbursement for expenses
incurred). Occidental's Restated Certificate of Incorporation provides for the
elimination of personal liability of its directors to the full extent permitted
by the Delaware General Corporation Law and Occidental has entered into
indemnification agreements with each
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director and certain officers providing for additional indemnification. Article
VIII of Occidental's By-laws provides that Occidental shall indemnify directors
and officers under certain circumstances for liabilities and expenses incurred
by reason of their activities in such capacities. In addition, Occidental has
insurance policies that provide liability coverage to directors and officers
while acting in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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, File No. 1-9210).
3.(i)(a) Certificate of Change of Location of Registered Office and of
Registered Agent, dated July 6, 2001 (filed as 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 April 24, 2003.
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 2001 Incentive Compensation
Plan, as amended through April 25, 2003.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Donald
P. de Brier, Robert E. Sawyer and Linda S. Peterson his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all Amendments (including
Post-Effective Amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, here ratifying and confirming all that said attorneys-in-fact and
agents, each acting along, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Occidental
Petroleum Corporation 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 Los Angeles, State of California, on April 29,
2003.
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ RAY R. IRANI
----------------------------------
Ray R. Irani
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ RAY R. IRANI Chairman of the Board of April 29, 2003
- ------------------------------- Directors and Chief Executive
Ray R. Irani Officer
/s/ STEPHEN I. CHAZEN Chief Financial Officer and April 29, 2003
- ------------------------------- Executive Vice President -
Stephen I. Chazen Corporate Development
/s/ SAMUEL P. DOMINICK, JR. Vice President and Controller April 29, 2003
- ------------------------------- (Chief Accounting Officer)
Samuel P. Dominick, Jr.
/s/ RONALD W. BURKLE Director April 29, 2003
- -------------------------------
Ronald W. Burkle
/s/ JOHN S. CHALSTY Director April 29, 2003
- -------------------------------
John S. Chalsty
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/s/ EDWARD P. DJEREJIAN Director April 29, 2003
- -------------------------------
Edward P. Djerejian
/s/ R. CHAD DREIER Director April 29, 2003
- -------------------------------
R. Chad Dreier
/s/ JOHN E. FEICK Director April 29, 2003
- -------------------------------
John E. Feick
/s/ DALE R. LAURANCE Director April 29, 2003
- -------------------------------
Dale R. Laurance
/s/ IRVIN W. MALONEY Director April 29, 2003
- -------------------------------
Irvin W. Maloney
/s/ RODLOFO SEGOVIA Director April 29, 2003
- -------------------------------
Rodolfo Segovia
/s/ AZIZ SYRIANI Director April 29, 2003
- -------------------------------
Aziz Syriani
/s/ ROSEMARY TOMICH Director April 29, 2003
- -------------------------------
Rosemary Tomich
/s/ WALTER L. WEISMAN Director April 29, 2003
- -------------------------------
Walter L. Weisman
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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3.(ii) By-laws of Occidental, as amended through April 24, 2003.
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 2001 Incentive Compensation Plan, as
amended through April 25, 2003.
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 7,
2003, with respect to the consolidated balance sheets of Occidental Petroleum
Corporation as of December 31, 2002 and 2001, 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, 2002 and
the related financial statement schedule, which report appears in the December
31, 2002 10-K of Occidental Petroleum Corporation and subsidiaries. Our report
refers to changes 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
April 29, 2003
EXHIBIT 3.(ii)
[AS AMENDED APRIL 25, 2003]
BY-LAWS
OF
OCCIDENTAL PETROLEUM CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the Corporation
shall be in the State of Delaware.
SECTION 2. Other Offices. The Corporation may also 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.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 1. Place and Conduct of Meetings. Meetings of the stockholders for
the election of directors or for the transaction of only such other business as
may properly be brought before the meeting in accordance with these By-laws
shall be held at such time and place, either within or without the State of
Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice
thereof. The Chairman of such meetings shall have plenary power and authority
with respect to all matters relating to the conduct thereof including, without
limitation, the authority to limit the amount of time which may be taken by any
stockholder or stockholders, the authority to appoint and be advised by a
parliamentarian, and the authority to appoint and to instruct a sergeant or
sergeants at arms.
SECTION 2. Annual Meetings. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, for the purpose
of electing directors and for the transaction of only such other business as may
properly be brought before the meeting in accordance with these By-laws.
To be properly brought before the Annual Meeting, business must be
either (a) specified in the notice of Annual Meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b) otherwise properly
brought before the Annual Meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the Annual Meeting by a
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 2 and on the record date
for the determination of stockholders entitled to vote at such Annual Meeting
and (ii) who complies with the notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder, the stockholder must
have given timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice must be delivered to or mailed to and
received at the principal executive offices of the Corporation, not less than
seventy (70) days nor more than ninety (90) days prior to the anniversary date
of the immediately preceding Annual Meeting; provided, however, that in the
event that the Annual Meeting is called for a date that is not within thirty
(30) days before or after such anniversary date, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the Annual
Meeting
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was mailed or such public disclosure was made, whichever first occurs. In no
event shall the public announcement of an adjournment of an Annual Meeting
commence a new time period for the giving of a stockholder's notice as described
above.
To be in proper written form, a stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the Annual
Meeting (i) a brief description of the business desired to be brought before the
Annual Meeting, the reasons for conducting such business at the Annual Meeting
and any material interest in such business of the stockholder and the beneficial
owner, if any, on whose behalf the proposal is made, (ii) the name and record
address of the stockholder proposing such business, (iii) the class, series and
number of shares of the Corporation which are beneficially owned by the
stockholder, (iv) a description of all arrangements or understandings between
the stockholder and any other person or persons (including their names) in
connection with such business, (v) whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends to distribute proxy
materials, and (vi) a representation that the stockholder intends to appear, in
person or by another person authorized in accordance with the General
Corporation Law of the State of Delaware to act as proxy for the stockholder, at
the Annual Meeting to present such business.
Notwithstanding anything in the By-laws to the contrary, no business shall
be conducted at the Annual Meeting except in accordance with the procedures set
forth in this Section 2; provided, however, that nothing in this Section 2 shall
be deemed to preclude discussion by any stockholder of any business properly
brought before the Annual Meeting.
The Chairman of an Annual Meeting shall, if the facts warrant, determine
and declare to the Annual Meeting that business was not properly brought before
the Annual Meeting in accordance with the provisions of this Section 2, and if
he should so determine, he shall so declare to the Annual Meeting and any such
business not properly brought before the Annual Meeting shall not be transacted.
Written notice of the Annual Meeting stating the place, date and hour of
the Annual Meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
SECTION 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, Special Meetings of Stockholders, for any purpose
or purposes, may be called by the Board of Directors or the Chairman of the
Board. Written notice of a Special Meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called 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.
SECTION 4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. 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 entitled to vote at
the meeting.
SECTION 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-laws, any question brought before any meeting of
stockholders shall be decided by the affirmative vote of a majority of the
shares present in person or by proxy at the meeting for the purposes of
determining the presence of a quorum at such meeting. Unless otherwise provided
in the Certificate of Incorporation, each stockholder represented at a meeting
of stockholders shall be entitled to cast one vote for each share of the
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capital stock entitled to vote thereat held by such stockholder. Such votes may
be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. No vote at
any meeting of stockholders need be by written ballot unless the Board of
Directors, in its discretion, or the officer of the Corporation presiding at the
meeting, in his discretion, specifically directs the use of a written ballot.
SECTION 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has 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 the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each 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. The 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 of the Corporation who is
present.
SECTION 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 6 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 8. Voting Procedures and Inspectors of Election. The corporation
shall, in advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
The inspectors shall (i) ascertain the number of shares outstanding and the
voting power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting.
ARTICLE III
DIRECTORS
SECTION 1. Number and Election of Directors. Subject to the rights, if any,
of holders of preferred stock issued by the Corporation to elect directors of
the Corporation, the Board of Directors shall consist of one or more directors,
the number of which shall be eleven (11) until changed by resolution duly
adopted by the Board of Directors from time to time. Except as provided in
Section 2 of this Article III, directors shall be elected by a plurality of the
votes cast at Annual Meetings of Stockholders, and each director so elected
shall hold office until his successor is duly elected and qualified, or until
his earlier death, disqualification, resignation or removal. No person shall be
eligible for election as a director of the Corporation who shall have reached
the age of seventy-two (72) at the date of such election, unless such
requirement shall have been unanimously waived by the members of the Nominating
and Corporate Governance Committee and such Committee's action shall have been
ratified and approved by a majority of the disinterested directors on the Board
of Directors. Any director may resign at any time effective upon
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giving written notice to the Corporation, unless the notice specifies a later
time for such resignation to become effective. If the resignation of a director
is effective at a future time, the Board of Directors may elect a successor
prior to such effective time to take office when such resignation becomes
effective. Directors need not be stockholders.
SECTION 2. Nominations of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors, except as may be otherwise provided in the Certificate of
Incorporation of the Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors of the Corporation may be made at any Annual Meeting (a) by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section 2
and on the record date for the determination of stockholders entitled to vote at
the Annual Meeting and (ii) who complies with the notice procedures set forth in
this Section 2.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, the stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than seventy (70) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding Annual Meeting; provided, however,
that in the event that the Annual Meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made, whichever
first occurs. In no event shall the public announcement of an adjournment of an
Annual Meeting commence a new time period for the giving of a stockholder's
notice as described above.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of the person, (ii) principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person, and (iv)
any other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to the Rules and
Regulations of the Securities and Exchange Commission under Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (b) as to
the stockholder giving the notice, (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are beneficially owned by the stockholder, (iii) a
description of all arrangements or understandings between the stockholder or the
beneficial owner, if any, on whose behalf the nomination is made and each
proposed nominee and any other person or persons (including their names)
pursuant to which the nominations are to be made by such stockholder, (iv)
whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends to distribute proxy materials, (v) a representation that the
stockholder intends to appear, in person or by another person authorized in
accordance with the General Corporation Law of the State of Delaware to act as
proxy for the stockholder, at the Annual Meeting to nominate the persons named
in the stockholder's notice, and (vi) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Exchange Act. Such notice must
be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 2.
If the Chairman of the Annual Meeting determines that a nomination was not made
in accordance with the foregoing procedure, the Chairman shall declare to the
meeting that the nomination was defective and the defective nomination shall be
disregarded.
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SECTION 3. Vacancies. Any newly created directorship resulting from an
increase in the number of directors or any other vacancy on the Board of
Directors may be filled by a majority of the Board of Directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a newly created directorship resulting from an increase in the
number of directors or any other vacancy shall hold office for a term that shall
expire at the next Annual Meeting of Stockholders.
SECTION 4. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-laws
directed or required to be exercised or done by the stockholders.
SECTION 5. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the President, or any three directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight hours before the date of the
meeting, by telephone, telegram or telecopy on twenty-four hours notice, or on
such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
SECTION 6. Quorum. Except as may be otherwise specifically provided by law,
at all meetings of the Board of Directors or of any committee thereof, a
majority of the members of the entire Board of Directors or of the said
committee shall constitute a quorum for the transaction of business; and the act
of a majority of the directors or members of the committee present at any
meeting at which there is a quorum shall be the act of the Board of Directors or
of the said committee, as the case may be. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors or members of the committee if any action taken is
approved by at least a majority of the required quorum for that meeting. If a
quorum shall not be present at any meeting of the Board of Directors or of any
committee thereof, the directors or members of the committee present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
SECTION 7. Actions of Board. Any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 8. Meetings by Means of Conference Telephone. Members of the Board
of Directors of the Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 8 shall constitute
presence in person at such meeting.
SECTION 9. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Meetings of any
committee may be called by the Chairman of such committee, if there be one, or
by any two members thereof other than such Chairman. Notice thereof stating
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the place, date and hour of the meeting shall be given to each member by mail
not less than forty-eight hours before the date of the meeting; by telephone,
telegram or telecopy on twenty-four hours notice; or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in
the circumstances. Each committee shall keep regular minutes and report to the
Board of Directors when required.
SECTION 10. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors and/or a stated
annual fee as a director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 11. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. General. The officers of this Corporation shall be chosen by the
Board of Directors and shall be a Chairman of the Board, who shall be the Chief
Executive Officer, any number of Vice Chairmen, a President, a Senior Operating
Officer, any number of Executive Vice Presidents, one or more of whom may be
designated Senior Executive Vice President, any number of Vice Presidents with
such rank as the Board of Directors may designate, a Secretary, any number of
Assistant Secretaries, a Treasurer, and any number of Assistant Treasurers. One
of such Executive Vice Presidents or Vice Presidents shall be designated Chief
Financial Officer and shall have responsibility, subject to the direction of the
Board of Directors, the Chairman of the Board and the President, for the
management of the Corporation's financial affairs. Any number of offices may be
held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation.
SECTION 2. Election. The Board of Directors at its first meeting held after
each Annual Meeting of Stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in an office of the Corporation shall be filled by the Board
of Directors.
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SECTION 3. Remuneration. The Board of Directors shall have the power to fix
and determine the salaries and other remuneration, and the terms and conditions
thereof, of all executive officers of the Corporation.
SECTION 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders and of the Board of
Directors and the Executive Committee, if any, shall have general and active
management of the business and affairs of the Corporation, shall have plenary
power to issue orders and instructions to all officers and employees of the
Corporation, and shall see that all orders and resolutions of the Board of
Directors and the Executive Committee, if any, are carried into effect. He shall
be the Chief Executive Officer of the Corporation, and except where by law the
signature of the President is required, the Chairman of the Board of Directors
shall possess the power to enter into and sign all contracts, certificates and
other instruments of the Corporation, and shall have the power to delegate any
portion of his authority under these By-laws to any other officer of the
Corporation. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him by these By-laws or by the Board of Directors.
SECTION 5. Vice Chairmen of the Board of Directors. The Vice Chairman of
the Board of Directors or Vice Chairmen of the Board of Directors, if there is
more than one (in the order designated by the Board of Directors), shall perform
such duties and may exercise such powers as from time to time may be assigned to
him by the Board of Directors or the Chairman of the Board of Directors.
SECTION 6. President. The President shall perform such duties and have such
powers as the Board of Directors or the Chairman of the Board may from time to
time prescribe. In the absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of
the stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these By-laws,
by the Board of Directors or by the Chairman of the Board of Directors.
SECTION 7. Senior Operating Officer. The Senior Operating Officer shall
perform such duties and have such powers as are prescribed for Executive Vice
Presidents and Vice Presidents under these By-laws and under any resolution of
the Board of Directors and shall perform such additional duties and have such
additional powers as the Board of Directors or the Chairman of the Board of
Directors may from time to time prescribe. The Senior Operating Officer shall
also perform such other duties and may exercise such other powers as from time
to time may be assigned to him by these By-laws, by the Board of Directors, or
by the Chairman of the Board of Directors.
SECTION 8. Executive Vice Presidents and Vice Presidents. At the request of
the President or in his absence or in the event of his inability or refusal to
act (and if there be no Chairman of the Board of Directors), the Executive Vice
Presidents and Vice Presidents (in the order designated by the Board of
Directors) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other duties and have such
other powers as the Board of Directors or the Chairman of the Board of Directors
from time to time may prescribe. If there be no Chairman of the Board of
Directors and no Vice President, the Board of Directors shall designate the
officer of the Corporation who, in the absence of the President or in the event
of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President.
SECTION 9. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees of the Board of Directors when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by
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the Board of Directors or the Chairman of the Board of Directors, under whose
supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then
either the Board of Directors or the President may choose another officer to
cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be any,
shall have authority to affix the same to any instrument requiring it, and when
so affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.
SECTION 10. Treasurer. Subject to the direction of the Chief Financial
Officer, the Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chairman of the Board and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 11. Assistant Secretaries. Except as may be otherwise provided in
these By-laws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice
President, if there be any, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
SECTION 12. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there be any, or the Treasurer,
and in the absence of the Treasurer or in the event of his disability or refusal
to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION 13. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
SECTION 14. Officers of Divisions. The officers of divisions of the
Corporation shall perform such duties and may exercise such powers as the
Chairman of the Board may from time to time prescribe.
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ARTICLE V
STOCK
SECTION 1. Uncertificated Shares. Effective April 25, 2003, the shares of
Common Stock of the Corporation shall be uncertificated. Notwithstanding that
the shares of Common Stock of the corporation shall be uncertificated, every
holder of stock of any class or series in the Corporation shall be entitled to
have a certificate signed by, or in the name of the Corporation (i) by the
Chairman or Vice Chairman of the Board of Directors, or the President, an
Executive Vice President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares registered in certificate form.
SECTION 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature 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 were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Lost, Stolen or Destroyed Certificates. The Board of Directors
may direct a new certificate to be issued in accordance with Section 1 of this
Article V in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of
Directors shall require and/or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
SECTION 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-laws. Transfers of stock shall be made
on the books of the Corporation (i) in the case of uncertificated shares, only
by the person named in the stock register of the Corporation, by an attorney
lawfully constituted in writing by such person or by any other representative of
such person acceptable to the Corporation, and (ii) in the case of shares
registered in certificate form, only by the person named in the certificate, by
an attorney lawfully constituted in writing by such person or by any other
representative of such person acceptable to the Corporation and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued in accordance with Section 1 of this Article V.
SECTION 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or 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 of Directors 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 of Directors, and which record date shall
not be more than sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the
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part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
SECTION 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex or cable or by facsimile or other electronic transmission.
Notice given by any such means shall be deemed to have been given at the time
delivered, sent or transmitted.
SECTION 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
SECTION 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 5. Stock Held by Corporation. Powers of attorney, proxies, waivers
of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name and on behalf of the Corporation by the
Chairman of the Board, or such other officer or officers as the Board of
Directors or the Chairman of the Board may designate, and any such officer shall
have full power and authority on behalf of the Corporation, in person or by
proxy, to attend, and to act and vote at, any meeting of stockholders of any
corporation in which the Corporation may hold securities, and at any such
meeting shall possess, and may exercise, any and all of the rights and powers
incident to the ownership of such securities.
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ARTICLE VIII
INDEMNIFICATION
SECTION 1. Power to Indemnify in Actions, Suits or Proceedings other than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 1 or Section
2 of this Article VIII, as the case may be. Such determination shall be made (i)
by the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders. To the extent, however, that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section 1
or Section 2 of this Article VIII, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
SECTION 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on
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the records or books of account of the Corporation or another enterprise, or on
information, opinions, reports or statements supplied to him by the officers or
employees of the Corporation or another enterprise in the course of their
duties, or by a committee of the Board of Directors of the Corporation, or on
the advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports or statements made to the Corporation or
another enterprise by an independent certified public accountant, by an
appraiser or by another person selected with reasonable care by or on behalf of
the Corporation or another enterprise as to matters such person reasonably
believes are within such certified public accountant's, appraiser's, or other
person's professional or expert competence. The term "another enterprise" as
used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 1 or 2 of this Article
VIII, as the case may be.
SECTION 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application.
SECTION 6. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
SECTION 7. Non-exclusivity and Survival of Indemnification. The
indemnification and advancement of expenses provided by this Article VIII shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-law,
agreement, contract, vote of stockholders or disinterested directors or pursuant
to the direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification and advancement of expenses provided by this
Article VIII shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
SECTION 9. Meaning of "Corporation" for Purposes of Article VIII. For
purposes of this Article VIII, references to "the Corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its
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separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
-13-
EXHIBIT 5.1
10889 WILSHIRE BOULEVARD
(LOGO) OCCIDENTAL PETROLEUM CORPORATION 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
E-Mail linda_peterson@oxy.com
April 29, 2003
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
Re: Occidental Petroleum Corporation
Registration Statement on Form S-8
Occidental Petroleum Corporation
2001 Incentive Compensation Plan
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 April 29, 2003 (the "Registration Statement"). The
Registration Statement relates to the registration under the Securities Act of
1933, as amended (the "1933 Act"), of 10,000,000 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 2001 Incentive Compensation
Plan (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, among other things, measure the number
of shares available for issuance (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
April 29, 2003
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
EXHIBIT 99.1
2001 INCENTIVE COMPENSATION PLAN
(AS AMENDED THROUGH APRIL 24, 2003)
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1. PURPOSE OF PLAN. The purpose of this Plan is to provide incentives and
stock-based awards to promote the success of the Company and the interests of
its stockholders and to align the interests of the Company's stockholders,
officers and employees.
2. SHARE LIMITS. Subject to the provisions of Section 6, the capital stock
that may be delivered under this Plan will be Common Shares. Subject to
adjustment as provided in or pursuant to this Section 2 or Section 6:
2.1 AGGREGATE SHARE LIMITS. The maximum number of Common Shares that may
be delivered pursuant to all awards granted under this Plan shall equal
27,000,000 shares. The maximum number of Common Shares that may be delivered
pursuant to all awards other than stock options granted under this Plan shall
equal 8,500,000 shares. The maximum number of Common Shares that may be
delivered pursuant to all awards for which payment or vesting is not based upon
the passage of time, stock price appreciation or the satisfaction of Performance
Goals shall equal 850,000 shares.
2.2 INDIVIDUAL LIMITS. The aggregate number of Common Shares subject to
all awards granted under this Plan to any one individual during any three
consecutive calendar years shall be limited to 4,000,000 shares. Awards payable
only in cash and not related to shares made to any one individual during any
calendar year shall be limited to $10,000,000. Awards that are cancelled during
the fiscal year shall be counted against these limits only to the extent
required by Section 162(m).
2.3 REISSUE OF AWARDS AND SHARES. Awards payable in cash or payable in
cash or Common Shares, including restricted shares, that are forfeited,
cancelled, or for any reason do not vest or are not paid under this Plan, and
Common Shares that are subject to awards that expire or for any reason are
terminated, cancelled, fail to vest or are otherwise settled and are not issued,
as well as Common Shares reacquired pursuant to the terms of an award, shall be
available for subsequent awards under this Plan. If an award under this Plan is
or may be settled only in cash, such award need not be counted against any of
the share limits under this Section 2, except as may be required by Section
162(m) to the extent required to preserve the status of an award as
"performance-based compensation" under Section 162(m).
3. ADMINISTRATOR OF PLAN. This Plan shall be administered by the
Administrator.
3.1 POWERS OF THE ADMINISTRATOR. Subject to the express provisions of this
Plan, the Administrator shall be authorized and empowered to do all things
necessary or desirable in connection with the authorization of awards and the
administration of this Plan within its delegated authority, including, without
limitation, the authority to:
(a) adopt, amend and rescind rules, regulations and procedures
relating to this Plan and its administration or the awards granted under this
Plan and determine the forms of awards;
(b) determine who is an Eligible Person and to which Eligible
Persons, if any, awards will be granted under this Plan;
(c) grant awards to Eligible Persons and determine the terms and
conditions of such awards, including but not limited to the number and value of
Common Shares issuable pursuant thereto, the times (subject to Section 4.6) at
which and conditions upon which awards become exercisable or vest or shall
expire or terminate, and (subject to applicable law) the consideration, if any,
to be paid upon receipt, exercise or vesting of awards;
(d) determine the date of grant of an award, which may be a
designated date after but not before the date of the Administrator's action;
(e) determine whether, and the extent to which, adjustments are
required pursuant to Section 6 hereof;
(f) interpret and construe this Plan and the terms and conditions of
any award granted hereunder, whether before or after the date set forth in
Section 5;
(g) determine the circumstances under which, consistent with the
provisions of Section 7.2, any outstanding award may be amended and make any
amendments thereto that the Administrator determines are necessary or
appropriate; and
1
(h) acquire or settle rights under options, stock appreciation rights
or other awards in cash, stock of equivalent value, or other consideration.
All authority granted herein (except as provided in Section 5) shall remain in
effect so long as any award remains outstanding under this Plan.
3.2 SPECIFIC ADMINISTRATOR RESPONSIBILITY AND DISCRETION REGARDING AWARDS.
Subject to the express provisions of this Plan, the Administrator, in its sole
and absolute discretion, shall determine all of the terms and conditions of each
award granted under this Plan, which terms and conditions may include, subject
to such limitations as the Administrator may from time to time impose, among
other things, provisions that:
(a) permit the recipient of such award to pay the purchase price
of the Common Shares or other property issuable pursuant to such award, or any
applicable tax withholding obligation upon such issuance or in respect of such
award or Common Shares, in whole or in part, by any one or more of the
following:
(i) cash, cash equivalent, or electronic funds transfer,
(ii) the delivery of previously owned shares of capital
stock of the Company (including shares acquired as or pursuant to awards) or
other property,
(iii) a reduction in the amount of Common Shares or other
property otherwise issuable pursuant to such award,
(iv) a cashless exercise, or
(v) any other legal consideration the Administrator deems
appropriate.
(b) accelerate the receipt and/or vesting of benefits pursuant
to the award upon or in connection with (whether before, at the time of or
after) the occurrence of a specified event or events, including, without
limitation, a termination of employment, an event of a personal nature, an event
referenced in Section 6 (in which case the Administrator's discretion shall be
exercised in a manner consistent with Section 6), or otherwise, in any case as
deemed appropriate by the Administrator;
(c) qualify such award as an ISO;
(d) adjust the exercisability, term (subject to other limits) or
vesting schedule of any or all outstanding awards, adjust the number of Common
Shares subject to any award, adjust the price of any or all outstanding awards
or otherwise change previously imposed terms and conditions, in the
circumstances referenced in clause (b) above or in other circumstances or upon
the occurrence of other events (including events of a personal nature) as deemed
appropriate by the Administrator, by amendment of an outstanding award, by
substitution of an outstanding award, by waiver or by other legally valid means
(which may result, among other changes, in a greater or lesser number of shares
subject to the award, a shorter or longer vesting or exercise period, or, except
as provided below, an exercise or purchase price that is higher or lower than
the original or prior award), in each case subject to Sections 2 and 7.2;
provided, however, that in no case (other than an adjustment contemplated by
Section 6.2) shall the exercise price of any option or related stock
appreciation right be reduced by an amendment to the award or a cancellation and
re-grant of the award to effect a repricing of the award to a price below the
Fair Market Value of the underlying Common Shares on the grant date of the
original option or stock appreciation right unless specific stockholder consent
is obtained;
(e) authorize (subject to Sections 6, 7, and 9) the conversion,
succession or substitution of one or more outstanding awards upon the occurrence
of an event of the type described in Section 6 or in other circumstances or upon
the occurrence of other events as deemed appropriate by the Administrator;
and/or
(f) determine the value of and acquire or otherwise settle
awards upon termination of employment, upon such terms as the Administrator
(subject to Sections 6, 7 and 9) deems appropriate.
3.3 DECISIONS IN GOOD FAITH; RELIANCE ON EXPERTS. In making any
determination or in taking or not taking any action under this Plan, the
Administrator may obtain and may rely upon the advice of experts, including
employees of and professional advisors to the Company. No director, officer or
agent of the Company shall be liable for any such action or determination taken
or made or omitted under this Plan in good faith. Any action taken by, or
inaction of, the Administrator relating to or pursuant to this Plan shall be
within the absolute discretion of that entity or body and shall be conclusive
and binding on all persons.
3.4 DELEGATION. The Board may delegate different levels of authority to
different committees with administrative and grant authority under this Plan,
provided that each designated committee granting any awards hereunder shall
consist exclusively of a member or members of the Board. A majority of the
members of the acting committee shall
2
constitute a quorum. The vote of a majority of the members present assuming the
presence of a quorum or the unanimous written consent of the committee shall
constitute action by the committee. The Administrator may delegate authority to
grant awards under this Plan for new employees to an officer of the Company who
is also a director and may delegate ministerial, non-discretionary functions to
individuals who are officers or employees of the Company or a subsidiary or to
third parties.
3.5 BIFURCATION. Notwithstanding anything to the contrary in this Plan,
the provisions of this Plan may at any time be bifurcated by the Board or the
Administrator in any manner so that provisions of any award agreement (or this
Plan) intended or required in order to satisfy the applicable requirements of
Rule 16b-3 or Section 162(m), to the extent permitted thereby, are applicable
only to persons subject to those provisions and to those awards to those persons
intended to satisfy the requirements of the applicable legal restriction.
4. AWARDS.
4.1 TYPE AND FORM OF AWARDS. All awards shall be evidenced in writing
(including electronic form), substantially in the form approved by the
Administrator, and executed on behalf of the Company and, if required by the
Administrator, by the recipient of the award. The Administrator may authorize
any officer (other than the particular recipient) to execute any or all
agreements memorializing any grant of an award by the Administrator under this
Plan. The types of awards that the Administrator may grant include, but are not
limited to, any of the following, on an immediate or deferred basis, either
singly, or in tandem or in combination with or in substitution for, other awards
of the same or another type: (i) Common Shares, (ii) options, stock appreciation
rights (including limited stock appreciation rights), restricted stock (which
shall vest over a period of not less than 3 years), stock units, or similar
rights to purchase or acquire shares, whether at a fixed or variable price or
ratio related to the Common Shares, upon the passage of time, the occurrence of
one or more events, or the satisfaction of Performance Goals or other
conditions, or any combination thereof, (iii) any similar securities with a
value derived from the value of or related to the Common Shares or other
securities of the Company and/or returns thereon, or (iv) cash. Share-based
awards may include (without limitation) stock options, stock purchase rights,
stock bonuses, stock units (or deferred compensation accounts), stock
appreciation rights, limited stock appreciation rights, phantom stock, dividend
equivalents (independently or in tandem with any form of stock grant), dividend
rights (independently or in tandem with any form of stock grant), Common Shares,
any of which may be payable in Common Shares or cash, and may consist of one or
more of such features in any combination. The stock units and dividend
equivalents authorized hereunder include stock units and dividend equivalents
with respect to the stock option gains and other awards granted under the
Company's 1987 Stock Option Plan, the Company's 1995 Incentive Stock Plan and
this Plan and deferred under the Company's Deferred Stock Program.
4.2 PERFORMANCE-BASED AWARDS. Any of the types of awards listed in Section
4.1 may be granted as Performance-Based Awards.
4.2.1 SECTION 162(M) AWARDS. The Administrator has discretion to
determine if any Performance-Based Award is intended to be a Section 162(m)
Award. Section 162(m) Awards shall be subject to the following rules and
restrictions:
(a) Performance Goals. The specific Performance Goals in respect of
Section 162(m) Awards, other than Qualifying Options, must be approved by the
Administrator in advance of any applicable deadlines under Section 162(m) and
while the performance relating to those goals remains substantially uncertain
within the meaning thereof;
(b) Class. The eligible class of persons for Section 162(m) Awards
shall be executive officers of the Company and its subsidiaries and, in the
discretion of the Administrator, other employees of the Company or its
subsidiaries who are designated by the Administrator to receive a Section 162(m)
Award because they may be executive officers of the Company or its subsidiaries
by the time their awards are exercised, vested or paid.
(c) Certification of Payment. Except as otherwise permitted under
Section 162(m), before any Section 162(m) Award is paid, the Administrator must
certify that the Performance Goal and any other material terms of the Section
162(m) Award were in fact satisfied.
4.2.2 RESERVATION OF DISCRETION. The Administrator shall have
discretion to determine the conditions, restrictions or other limitations, in
accordance with the terms of this Plan and, in the case of Section 162(m)
Awards, the limitations of Section 162(m), on the payment of individual
Performance-Based Awards under this Section 4.2. The Administrator may reserve
by express provision in any award agreement the right to reduce the amount
payable in accordance with any standards or on any other basis (including the
Administrator's discretion), as the Administrator may impose.
3
4.2.3 ADJUSTMENTS. Performance Goals or other features of an award
under this Section 4.2 may be (i) adjusted to reflect a change in corporate
capitalization, a corporate transaction (such as a reorganization, combination,
separation, merger, acquisition, or any combination of the foregoing) or a
complete or partial corporate liquidation, or (ii) calculated either without
regard for or to reflect any change in accounting policies or practices
affecting the Company and/or the Performance Objectives or Performance Goals, or
(iii) adjusted for any other circumstances or event, or (iv) any combination of
(i) through (iii), but only to the extent in each case that such adjustment or
determination in respect of Section 162(m) Awards would be consistent with the
requirements of Section 162(m) to qualify as performance-based compensation.
4.3 CONSIDERATION FOR SHARES. Common Shares may be issued pursuant to an
award for any lawful consideration as determined by the Administrator,
including, without limitation, services rendered by the recipient of such award,
but shall not be issued for less than the minimum lawful consideration. Awards
may be payable in cash, stock or other consideration or any combination thereof,
as the Administrator shall designate in or (except as required by Section 4.2)
by amendment to the award agreement.
4.4 LIMITED RIGHTS. Except as otherwise expressly authorized by the
Administrator or this Plan or in the applicable award agreement, a participant
will not be entitled to any privilege of stock ownership as to any Common Shares
not actually delivered to and held of record by the participant. No adjustment
will be made for dividends or other rights as a stockholder for which a record
date is prior to such date of delivery.
4.5 OPTION/STOCK APPRECIATION RIGHT PRICING LIMITS. The purchase price per
share of the Common Shares covered by any option or the base price of any stock
appreciation right shall be determined by the Administrator at the time of the
grant, but shall not be less than 100% of the Fair Market Value of the Common
Shares on the date of grant.
4.6 TERM LIMITS. Any option, stock appreciation right, warrant or similar
right shall expire and any other award shall vest not more than 10 years after
the date of grant. An award may be converted or convertible, notwithstanding the
foregoing limits, into or payable in, Common Shares or another award that
otherwise satisfies the requirements of this Plan.
4.7 TRANSFER RESTRICTIONS. Unless otherwise expressly provided in or
permitted by this Section 4.7, by applicable law or by the award agreement, as
the same may be amended, (i) all awards are non-transferable and shall not be
subject in any manner to sale, transfer, anticipation, alienation, assignment,
pledge, encumbrance or charge; (ii) awards shall be exercised only by the
holder; and (iii) amounts payable or shares issuable pursuant to an award shall
be delivered only to (or for the account of) the holder.
4.7.1 EXCEPTIONS BY ADMINISTRATOR ACTION. The Administrator, in its
sole discretion, may permit an award to be transferred to, exercised by and paid
to certain persons or entities related to the participant, including but not
limited to members of the participant's family, or trusts or other entities
whose beneficiaries or beneficial owners are members of the participant's
family, or to such other persons or entities as may be expressly approved by the
Administrator, pursuant to such conditions and procedures as the Administrator
may establish. Any permitted transfer shall be subject to the condition that the
Administrator receive evidence satisfactory to it that the transfer is being
made for estate and/or tax planning purposes and on a basis consistent with the
Company's lawful issue of securities and the incentive purposes of the award and
this Plan. Notwithstanding the foregoing, awards intended as ISOs or restricted
stock awards for purposes of the Code shall be subject to any and all additional
transfer restrictions necessary to preserve their status as ISOs or restricted
shares, as the case may be, under the Code.
4.7.2 EXCLUSIONS. The exercise and transfer restrictions in this
Section 4.7 shall not apply to:
(a) transfers to the Company,
(b) the designation of a beneficiary to receive benefits in the
event of the participant's death or, if the participant has died, transfers to
or exercise by the participant's beneficiary, or, in the absence of a validly
designated beneficiary, transfers by will or the laws of descent and
distribution,
(c) transfers pursuant to a domestic relations order (if
approved or ratified by the Administrator), if (in the case of ISOs) permitted
by the Code,
(d) if the participant has suffered a disability, permitted
transfers to or exercises on behalf of the holder by his or her legal
representative, or
(e) the authorization by the Administrator of "cashless
exercise" procedures with third parties who finance or who otherwise facilitate
the exercise of awards consistent with applicable laws and the express
authorization of the Administrator.
4
4.8 TAX WITHHOLDING. Upon any exercise, vesting, or payment of any award,
the Company shall:
(a) require the recipient (or his or her heirs, personal
representatives or beneficiaries, as the case may be) to pay or provide for
payment of the amount of any taxes which the Company or any subsidiary may be
required to withhold with respect to such transaction; or
(b) deduct from any amount payable in cash the amount of any
taxes that the Company or any subsidiary may be required to withhold with
respect to such cash amount.
4.8.1 POSSIBLE SHARE OFFSET. In any case where a tax is required to be
withheld in connection with the delivery of Common Shares under this Plan, the
Administrator may require or may permit (either at the time of the award or
thereafter) the holder the right to offset, pursuant to such rules and subject
to such conditions as the Administrator may establish, the number of shares to
be delivered by (or otherwise reacquire) the appropriate number of shares valued
at their then Fair Market Value, to satisfy such withholding obligation.
4.9 CASH AWARDS. The Administrator shall have the express authority to pay
awards in cash under this Plan, whether in lieu of, in addition to or as part of
another award.
5. TERM OF PLAN. No award shall be granted under this Plan after the tenth
anniversary of the Effective Date of this Plan. After that date, this Plan shall
continue in effect as to then outstanding awards. Any then outstanding award may
be amended thereafter in any manner that would have been permitted earlier,
except that no such amendment shall increase the number of shares subject to,
comprising or referenced in the award or reduce the exercise or base price of an
option or stock appreciation right or permit cash payments in an amount that
exceeds the limits of Section 2 (as adjusted pursuant to Section 6.2).
6. ADJUSTMENTS; CHANGE IN CONTROL.
6.1 CHANGE IN CONTROL; ACCELERATION AND TERMINATION OF AWARDS. Unless
prior to a Change in Control Event, the Administrator determines that, upon its
occurrence, benefits under any or all awards will not accelerate or determines
that only certain or limited benefits under any or all awards will be
accelerated and the extent to which they will be accelerated, and/or establishes
a different time in respect of such Change in Control Event for such
acceleration, then upon the occurrence of a Change in Control Event:
(a) each option and stock appreciation right shall become
immediately exercisable,
(b) restricted stock shall immediately vest free of
restrictions,
(c) each award under Section 4.2 shall become payable to the
participant,
(d) the number of shares covered by each stock unit account
shall be issued to the participant, and
(e) any other rights of a participant under any other award will
be accelerated to give the participant the benefit intended under any such
award.
In the case of a transaction intended to be accounted for as a pooling
of interests transaction, the Administrator will have no discretion with respect
to these events if the exercise of such discretion would cause the transaction
to no longer be accounted for as a pooling of interests transaction.
The Administrator may override the limitations on acceleration in this
Section 6.1 by express provision in the award agreement and may accord any
Eligible Person a right to refuse any acceleration, whether pursuant to the
award agreement or otherwise, in such circumstances as the Administrator may
approve. Any acceleration of awards shall comply with applicable legal and
regulatory requirements. Without limiting the generality of the foregoing, the
Administrator may deem an acceleration to occur immediately prior to or up to 30
days before the applicable event and/or reinstate the original terms of an award
if an event giving rise to an acceleration does not occur.
If any option or other right to acquire Common Shares under this Plan
has been fully accelerated as required or permitted by this Plan but is not
exercised prior to (i) a dissolution of the Company, or (ii) an event described
in this Section 6.1 that the Company does not survive, or (iii) the consummation
of an event described in Section 6.2 involving a Change in Control Event
approved by the Board, such option or right will terminate, subject to any
provision that has been expressly made by the Administrator or the Board through
a plan of reorganization approved by the Board or otherwise for the survival,
substitution, assumption, exchange or other settlement of such option or right.
6.2 ADJUSTMENTS. The following provisions will apply if any extraordinary
dividend or other extraordinary distribution occurs in respect of the Common
Shares (whether in the form of cash, Common Shares, other securities, or other
property), or any reclassification, recapitalization, stock split (including a
stock split in the form of
5
a stock dividend), reverse stock split, reorganization, merger, combination,
consolidation, split-up, spin-off, repurchase, or exchange of Common Shares or
other securities of the Company, or any similar, unusual or extraordinary
corporate transaction (or event in respect of the Common Shares) or a sale of
substantially all the assets of the Company as an entirety occurs. The
Administrator will, in such manner and to such extent (if any) as it deems
appropriate and equitable:
(a) proportionately adjust any or all of (i) the number and type of
shares of Common Shares (or other securities) that thereafter may be made the
subject of awards (including the specific maxima and numbers of shares set forth
elsewhere in this Plan), (ii) the number, amount and type of shares of Common
Shares (or other securities or property) subject to any or all outstanding
awards, (iii) the grant, purchase, or exercise price of any or all outstanding
awards, (iv) the securities, cash or other property deliverable upon exercise of
any outstanding awards, or (v) the Performance Goals or Performance Objectives
appropriate to any outstanding awards, or
(b) in the case of an extraordinary dividend or other distribution,
recapitalization, reclassification, merger, reorganization, consolidation,
combination, sale of assets, split up, exchange, or spin off, make provision for
a cash payment or for the substitution or exchange of any or all outstanding
awards or the cash, securities or property deliverable to the holder of any or
all outstanding awards based upon the distribution or consideration payable to
holders of the Common Shares of the Company upon or in respect of such event.
In each case, with respect to awards of ISOs, no such adjustment will be made
that would cause this Plan to violate Section 422 or 424 of the Code or any
successor provisions without the written consent of holders materially adversely
affected thereby. In any of such events, the Administrator may take such action
sufficiently prior to such event if necessary or deemed appropriate to permit
the participant to realize the benefits intended to be conveyed with respect to
the underlying shares in the same manner as is available to stockholders
generally.
7. PLAN AMENDMENT AND TERMINATION.
7.1 AUTHORITY OF THE BOARD. Subject to Sections 7.2 and 7.3, the Board may
amend or terminate this Plan at any time and in any manner.
7.2 RESTRICTIONS. No amendment or termination of this Plan or change in or
affecting any outstanding award shall deprive in any material respect the
holder, without the consent of the holder, of any of his or her rights or
benefits under or with respect to the award. Adjustments contemplated by Section
6 shall not be deemed to constitute a change requiring such consent.
7.3 STOCKHOLDER APPROVAL. Stockholder approval shall be required for any
amendment to this Plan that would:
(a) materially increase the benefits accruing to participants
under this Plan,
(b) materially increase the number of securities which may be
issued under this Plan, or
(c) materially modify the requirements as to eligibility for
participation in this Plan.
8. EFFECTIVE DATE. This Plan shall be effective as of the date of the
Company's 2001 annual meeting of stockholders, subject to the approval of this
Plan by the requisite vote of stockholders at that meeting.
9. LEGAL MATTERS.
9.1 COMPLIANCE AND CHOICE OF LAW; SEVERABILITY. This Plan, the granting
and vesting of awards under this Plan and the issuance and delivery of Common
Shares and/or the payment of money under this Plan or under awards granted
hereunder are subject to compliance with all applicable federal and state laws,
rules and regulations (including but not limited to state and federal securities
and banking laws) and to such approvals by any listing, regulatory or
governmental authority as may, in the opinion of counsel for the Company, be
necessary or advisable in connection therewith. Any securities delivered under
this Plan shall be subject to such restrictions as the Company may deem
necessary or desirable to assure compliance with all applicable legal
requirements. This Plan, the awards, all documents evidencing awards and all
other related documents shall be governed by, and construed in accordance with
the laws of the state of Delaware. If any provision shall be held by a court of
competent jurisdiction to be invalid and unenforceable, the remaining provisions
of this Plan shall continue in effect.
9.2 NON-EXCLUSIVITY OF PLAN. Nothing in this Plan shall limit or be deemed
to limit the authority of the Board or the Administrator to grant awards or
authorize any other compensation, with or without reference to the Common
Shares, under any other plan or authority.
9.3 NO EMPLOYMENT CONTRACT. Nothing contained in this Plan (or in any
other documents relating to this Plan or to any award) shall confer upon any
Eligible Person or other participant any right to continue in the employ or
other service of the Company or any subsidiary or constitute any contract or
agreement of employment or other
6
service, nor shall interfere in any way with the right of the Company or any
subsidiary to change such person's compensation or other benefits or to
terminate the employment of such person, with or without cause.
10. MISCELLANEOUS.
10.1 UNFUNDED PLAN. Unless otherwise determined by the Administrator, this
Plan shall be unfunded and shall not create (or be construed to create) a trust
or a separate fund or funds. This Plan shall not establish any fiduciary
relationship between the Company or any subsidiary and any participant or other
person. To the extent any person holds any rights by virtue of awards granted
under this Plan, such rights (unless otherwise determined by the Administrator)
shall be no greater than the rights of an unsecured general creditor of the
Company.
10.2 AWARDS NOT COMPENSATION. Unless otherwise determined by the
Administrator, settlements of awards received by participants under this Plan
shall not be deemed a part of a participant's regular, recurring compensation
for purposes of calculating payments or benefits from any Company benefit plan,
severance program or severance pay law of any country. Further, the Company may
adopt other compensation programs, plans or arrangements as it deems appropriate
or necessary.
10.3 FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Administrator may provide
for the elimination of fractions or for the settlement thereof in cash.
10.4 FOREIGN PARTICIPANTS. No award shall be made to a participant who is a
foreign national or who is employed by the Company or any subsidiary outside the
United States of America if such award would violate applicable local law. In
order to facilitate the making of an award, the Administrator may provide for
such special terms for awards to participants who are foreign nationals, or who
are employed by the Company or any subsidiary outside of the United States of
America, as the Administrator may consider necessary or appropriate to
accommodate differences in local law, tax policy or custom. Moreover, the
Administrator may approve such supplements to or amendments to this Plan as it
may consider necessary or appropriate for such purposes unless stockholder
approval for any such change would be required in accordance with the provisions
of Section 7.
10.5 DEFERRAL. The Administrator may authorize, subject to such
requirements or restrictions as it may impose, the deferral of any payment of
cash or delivery of Common Shares or other property that may become due or
payable under this Plan.
11. DEFINITIONS.
"ADMINISTRATOR" means the Compensation Committee of the Board or its
successor, which shall be composed of not less than two members of the Board,
each of whom shall be a "disinterested person" within the meaning of Rule 16b-3
and an "outside director" within the meaning of Section 162(m).
"BOARD" means the Board of Directors of the Company.
"BUSINESS COMBINATION" means a merger, consolidation, or other
reorganization, with or into, or the sale of all or substantially all of the
Company's business and/or assets as an entirety to, one or more entities that
are not subsidiaries or other affiliates of the Company.
"CHANGE IN CONTROL EVENT" means any of the following:
(a) Approval by the stockholders of the Company (or, if no
stockholder approval is required, by the Board) of the dissolution or
liquidation of the Company, other than in the context of a transaction that does
not constitute a Change in Control Event under clause (b) below;
(b) Consummation of a Business Combination, unless (1) as a
result of the Business Combination, more than 50% of the outstanding voting
power of the Successor Entity immediately after the reorganization is, or will
be, owned, directly or indirectly, by holders of the Company's voting securities
immediately before the Business Combination; (2) no "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act), excluding the Successor
Entity or an Excluded Person, beneficially owns, directly or indirectly, more
than 20% of the outstanding shares or the combined voting power of the
outstanding voting securities of the Successor Entity, after giving effect to
the Business Combination, except to the extent that such ownership existed prior
to the Business Combination; and (3) at least 50% of the members of the board of
directors of the entity resulting from the Business Combination were members of
the Board at the time of the execution of the initial agreement or of the action
of the Board approving the Business Combination;
(c) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act, but excluding any Excluded Person) is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding voting securities, other
than as a result of (1) an acquisition directly from the
7
Company; (2) an acquisition by the Company; or (3) an acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or a Successor Entity; or
(d) During any period not longer than two consecutive years,
individuals who at the beginning of such period constituted the Board cease to
constitute at least a majority thereof, unless the election, or the nomination
for election by the Company's stockholders, of each new Board member was
approved by a vote of at least two-thirds (2/3) of the Board members then still
in office who were Board members at the beginning of such period (including for
these purposes, new members whose election or nomination was so approved), but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMON SHARES" mean the Company's Common Stock, par value $0.20 per share.
"COMPANY" means Occidental Petroleum Corporation, a Delaware corporation.
"EFFECTIVE DATE" means the date this Plan shall become effective, as set
forth in Section 9 herein.
"ELIGIBLE PERSON" means any person who is an officer or employee of the
Company or any of its subsidiaries.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"EXCLUDED PERSON" means any employee benefit plan of the Company and any
trustee or other fiduciary holding securities under a Company employee benefit
plan or any person described in and satisfying the conditions of Rule
13d-1(b)(i) of the Exchange Act.
"FAIR MARKET VALUE" means the last reported sales price of a share of
Common Share on the New York Stock Exchange - Composite Transactions on the
relevant date or, if there are no reported sales on such date, then the last
reported sales price on the next preceding day on which such a sale is
transacted.
"ISO" means an incentive stock option qualified under Section 422 of the
Code.
"PERFORMANCE-BASED AWARD" means an award whose grant, vesting,
exercisability or payment depends upon on any one or more of the Performance
Objectives, in each case relative to Performance Goals, on an absolute or
relative basis (including comparisons to peer companies) or ratio with other
Performance Objectives, either as reported currency or constant currency,
pre-tax or after-tax, before or after special charges, for the Company on a
consolidated basis or for one or more subsidiaries, segments, divisions or
business units, or any combination of the foregoing. The applicable performance
period may range from one to five years.
"PERFORMANCE GOAL" means a preestablished targeted level or levels of any
one or more Performance Objectives.
"PERFORMANCE OBJECTIVES" mean any one or more of the following business
criteria: A/R day sales outstanding, A/R to sales, debt, debt to debt plus
stockholder equity, debt to EBIT or EBITDA, EBIT, EBITDA, EPS, EVA, expense
reduction, interest coverage, inventory to sales, inventory turns, net income,
operating cash flow, pre-tax margin, return on assets, return on capital
employed, return on equity, sales, stock price appreciation, and total
stockholder return (TSR), as defined further in Appendix A. These terms are used
as applied under generally accepted accounting principles (if applicable) and in
the Company's financial reporting.
"PLAN" means this Occidental Petroleum Corporation 2001 Incentive
Compensation Plan, as it may hereafter be amended from time to time.
"QUALIFYING OPTIONS" mean options and stock appreciation rights granted
with an exercise price not less than Fair Market Value on the date of grant.
Qualifying Options are Performance Based-Awards.
"RULE 16B-3" means Rule 16b-3 under Section 16 of the Exchange Act.
"SECTION 162(m)" means Section 162(m) of the Code and the applicable
regulations and interpretations thereunder.
"SECTION 162(m) AWARD" means a Performance-Based Award intended to satisfy
the requirements for "performance-based compensation" within the meaning of
Section 162(m).
"SHARE LIMIT" means the maximum number of Common Shares, as adjusted, that
may be delivered pursuant to all awards granted under this Plan.
"SUCCESSOR ENTITY" means the surviving or resulting entity or a parent
thereof of a Business Combination.
8
APPENDIX A TO 2001 INCENTIVE COMPENSATION PLAN
PERFORMANCE OBJECTIVES
The Performance Objectives shall have the meanings set forth below, in each
case as reported in the financial statements of the Company or applicable
subsidiary, division, segment, or unit ("financial statements").
A/R DAY SALES OUTSTANDING means trade accounts receivable (A/R)(net of
reserves) divided by latest historical day Sales.
A/R TO SALES means the ratio of accounts receivable to Sales.
DEBT means all accounts classified as such in the financial statements.
DEBT TO DEBT PLUS STOCKHOLDER EQUITY means the ratio of Debt to Debt plus
stockholder equity.
DEBT TO EBIT OR EBITDA means the ratio of Debt to EBIT or EBITDA.
EBIT means Net Income before interest expense and taxes, which may be
adjusted for special charges, if any.
EBITDA means Net Income before interest expense, taxes, depreciation and
amortization, which may be adjusted for special charges, if any.
EPS means Net Income divided by the weighted average number of Common
Shares outstanding. The shares outstanding may be adjusted to include the
dilutive effect of stock options, restricted stock and other dilutive financial
instruments as required by generally accepted accounting principles.
EVA means operating profit after tax (OPAT) (which is defined as Net Income
after tax but before tax adjusted interest income and expense and goodwill
amortization), less a charge for the use of capital (average total capital as
such term is used below under "Return on Capital Employed"). Net Income may be
adjusted for special charges and acquisition activity costs, if any. The charge
for capital is the percentage cost of capital times the average total capital.
The cost of capital is the weighted average cost of capital as calculated for
the Company.
EXPENSE REDUCTION means reduction in actual expense or an improvement in
the expense to Sales ratio compared to a target or prior year actual expense to
Sales ratio, which may be adjusted for special charges, if any.
INTEREST COVERAGE means the ratio of EBIT or EBITDA to interest expense.
Net Income may be adjusted for special charges.
INVENTORY TO SALES means the ratio of total inventory to Sales.
INVENTORY TURNS means the ratio of total cost of goods sold on a historical
basis to average net inventory. This ratio may be adjusted for special charges,
if any.
NET INCOME means the difference between total Sales plus other revenues and
net total costs and expenses, including income taxes.
OPERATING CASH FLOW means the net cash provided by operating activities
less net cash used by operations and investing activities as shown on the
statement of cash flows. The numbers relating to the foregoing may be adjusted
for special charges, if any.
PRE-TAX MARGIN means the ratio of earnings before income taxes to Sales.
Earnings may be adjusted for special charges, if any.
RETURN ON ASSETS means the ratio of Net Income to total average assets
including goodwill. Earnings may be adjusted for special charges and goodwill
amortization for comparative purposes.
RETURN ON CAPITAL EMPLOYED means the ratio of Net Income plus tax-effected
interest expense to long-term Debt plus stockholder equity.
RETURN ON EQUITY means the ratio of Net Income to stockholder equity.
SALES means sales, service and rental income from third parties net of
discounts, returns and allowances.
STOCK PRICE APPRECIATION means an increase, or an average annualized
increase, in the stock price or market value of the Common Shares of the Company
after purchase of, or the date of grant of, an award or above a specified stock
price.
TOTAL STOCKHOLDER RETURN OR TSR means the appreciation in the price of a
Common Share plus reinvested dividends over a specified period of time.
9