1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERADA HESS CORPORATION
(exact name of Issuer as specified in its charter)
Delaware 13-4921002
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
1185 Avenue of the Americas
New York, NY 10036
(Address of Principal Executive Offices and Zip Code)
AMERADA HESS CORPORATION
1995 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
J. BARCLAY COLLINS II, ESQ.
Executive Vice President
and General Counsel
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
(212) 997-8500
(Name, address and telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share* price* fee
- --------------------------------------------------------------------------------
Common Stock
(par value
$1.00). . . . 4,500,000 $50.375 $226,687,500 $78,168.10
shares
* Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) under the Securities Act of 1933 based
upon the average of the high and low prices reported on the composite
transactions reporting system of the New York Stock Exchange on
December 12, 1995.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by References
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The latest annual report of Amerada Hess Corporation (the
"Company") filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") which contains, either directly
or indirectly by incorporation by reference, certified financial
statements for the Company's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in paragraph (a) above.
(c) the description of the Company's Common Stock contained in
registration statement no. 33-47639 filed by the Company under the
Securities Act of 1933 (the "Securities Act").
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
As of December 14, 1995, Mr. Roger B. Oresman, a consulting partner of
Milbank, Tweed, Hadley & McCloy and a director of the Company, beneficially
owned 75,040 shares of Company Common Stock, par value $1.00 per share, 65,051
shares of which are held in trusts of which Mr. Oresman is a co-trustee and as
to which he has shared voting and investment power.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law confers broad
powers upon a corporation incorporated in that State with
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respect to the indemnification of any person against liabilities incurred by
reason of the fact that he is or was a director, officer, employee or agent of
such corporation or other business entity. The provisions of Section 145 are
not exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement or otherwise.
The By-Laws of the Company contain a provision entitling directors,
officers, or employees of the Company, or of any other company which he serves
or served as such at the request of the Company, to be indemnified by the
Company against any attorney's fees, disbursements and related expenses
("expenses") and amounts paid in settlement, judgments and fines ("liability")
paid or incurred by him in connection with or resulting from any threatened or
actual claim, action, suit or proceeding (whether brought by or in the right of
the Company or such other company or otherwise), civil, criminal,
administrative or investigative, in which he may be involved, as a party or
otherwise, by reason of his being or having been a director, officer or
employee of the Company or such other company, or by reason of any action taken
or not taken in his capacity as such director, officer or employee, whether or
not he continues to be such at the time such liability or expenses shall have
been paid or incurred. Indemnification is permitted to the extent not
prohibited by law.
Any person referred to above who has been wholly successful, on the
merits or otherwise, with respect to any claim, action, suit or proceeding of
the character described above shall be reimbursed by the Company for his
reasonable expense.
Any other person claiming indemnification under the By-Laws shall be
entitled to receive reimbursement from the Company for any reasonable expense
and for any liability (other than any amount paid to the Company) if
independent counsel or other disinterested persons selected by the Board of
Directors delivers to the Company its written finding that such person acted in
good faith in what he reasonably believed to be the best interests of the
Company, and with respect to any criminal action or proceeding, reasonably
believed that his conduct was lawful.
The By-Laws of the Company state that rights of indemnification
provided therein are in addition to any rights to which any director, officer
or employee may be entitled by contract or as a matter of law.
The Company maintains a Directors and Officers Insurance and Company
Reimbursement Policy which covers directors and officers of the Company.
Pursuant to the terms of the policy, the insurers will pay on behalf of the
individual insureds all losses, subject to certain exceptions and deductibles,
which the individual insureds may become obliged to pay by reason of any actual
or alleged breach of duty, neglect, error, misstatement, misleading statement,
omission or act, while acting in their
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respective capacities as directors or officers of the Company to the extent the
Company has not indemnified such individuals. In addition, the insurer will
reimburse the Company for all losses, subject to certain exceptions and
deductibles, in respect of which the Company has indemnified such individual
insureds for claims made against them by reason of the acts. The insurers'
maximum liability under the policy is $30,000,000.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4 Amerada Hess Corporation 1995 Long-Term Incentive Plan.
5 Opinion of Milbank, Tweed, Hadley & McCloy.
23 (a) Consent of Ernst & Young.
(b) Consent of Milbank, Tweed, Hadley & McCloy (included in
Exhibit 5).
24 Powers of Attorney (included on signature page).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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; and 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 a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
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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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public
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policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City and State of New York, on the 15th day of
December, 1995.
AMERADA HESS CORPORATION
BY: /S/ JOHN B. HESS
---------------------------------
NAME: JOHN B. HESS
TITLE: CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes John
B. Hess, W.S.H. Laidlaw, John Y. Schreyer or the agent for service named in this
Registration Statement to file one or more amendments (including post-effective
amendments) to this Registration Statement which amendments may make such
changes in this Registration Statement as John B. Hess, W.S.H. Laidlaw, John Y.
Schreyer or such agent for service deems appropriate and each such person hereby
appoints John B. Hess, W.S.H. Laidlaw, John Y. Schreyer or such agent for
service as attorney-in-fact to execute in the name and on behalf of each such
person, individually and in each capacity stated below, any such amendments to
this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on December 15, 1995 by the
following persons in the capacities indicated.
SIGNATURE TITLE
- --------------------------------------------------------------------------------
/s/ John B. Hess Director, Chairman of the Board
- ----------------------------- and Chief Executive Officer
(John B. Hess) (Principal Executive Officer)
/s/ W.S.H. Laidlaw Director, President and Chief
- ----------------------------- Operating Officer
(W.S.H. Laidlaw)
/s/ Leon Hess Director, Chairman of the Executive
- ----------------------------- Committee
(Leon Hess)
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SIGNATURE TITLE
- --------------------------------------------------------------------------------
/s/ Marco B. Bianchi Director
- ------------------------------
(Marco B. Bianchi)
/s/ Nicholas F. Brady Director
- ------------------------------
(Nicholas F. Brady)
/s/ J. Barclay Collins II Director
- ------------------------------
(J. Barclay Collins II)
/s/ Bernard T. Deverin Director
- ------------------------------
(Bernard T. Deverin)
/s/ Peter S. Hadley Director
- ------------------------------
(Peter S. Hadley)
/s/ Edith E. Holiday Director
- ------------------------------
(Edith E. Holiday)
/s/ Thomas H. Kean Director
- ------------------------------
(Thomas H. Kean)
Director
- ------------------------------
(H.W. McCollum)
/s/ Roger B. Oresman Director
- ------------------------------
(Roger B. Oresman)
/s/ William A. Pogue Director
- ------------------------------
(William A. Pogue)
Director
- ------------------------------
(Michael W. Press)
/s/ John Y. Schreyer Director, Executive Vice
- ------------------------------ President and Chief
(John Y. Schreyer) Financial Officer
(Principal Accounting and
Principal Financial Officer)
/s/ Richard B. Sellars Director
- -----------------------------
(Richard B. Sellars)
/s/ William I. Spencer Director
- -----------------------------
(William I. Spencer)
/s/ Robert F. Wright Director
- -----------------------------
(Robert F. Wright)
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INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
4 Amerada Hess Corporation 1995 Long-Term Incentive Plan.
5 Opinion of Milbank, Tweed, Hadley & McCloy.
23 (a) Consent of Ernst & Young.
(b) Consent of Milbank, Tweed, Hadley & McCloy (included in Exhibit 5).
24 Powers of Attorney (included on signature page).
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Exhibit 4
AMERADA HESS CORPORATION
- --------------------------------------------------------------------------------
1995 LONG-TERM INCENTIVE PLAN
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AMERADA HESS CORPORATION
1995 LONG-TERM INCENTIVE PLAN
SECTION 1. PURPOSE. The purpose of the Long-Term Incentive Plan
(the "Plan") of Amerada Hess Corporation (together with any successor thereto,
the "Corporation") is (a) to promote the identity of interests between
shareholders and employees of the Corporation by encouraging and creating
significant ownership of Common Stock of the Corporation by officers and other
salaried employees of the Corporation and its subsidiaries; (b) to enable the
Corporation to attract and retain qualified officers and employees who
contribute to the Corporation's success by their ability, ingenuity and
industry; and (c) to provide meaningful long-term incentive opportunities for
officers and other employees who are responsible for the success of the
Corporation and who are in a position to make significant contributions toward
its objectives.
SECTION 2. DEFINITIONS. In addition to the terms defined
elsewhere in the Plan, the following shall be defined terms under the Plan:
2.01. "Award" means any Performance Award, Option, Stock
Appreciation Right, Restricted Stock, Deferred Stock, Dividend Equivalent, or
Other Stock-Based Award, or any other right or interest relating to Shares or
cash, granted to a Participant under the Plan.
2.02. "Award Agreement" means any written agreement, contract, or
other instrument or document evidencing an Award.
2.03. "Board" means the Board of Directors of the Corporation.
2.04. "Change of Control" and related terms are defined in
Section 9.
2.05. "Code" means the Internal Revenue Code of 1986, as amended
from time to time. References to any provision of the Code shall be deemed to
include successor provisions thereto and regulations thereunder.
2.06. "Committee" means the Compensation and Incentive Awards
Committee of the Board, or such other Board committee as may be designated by
the Board to administer the Plan, or any subcommittee of either; provided,
however, that the Committee, and any subcommittee thereof, shall consist of
three or more directors (or such lesser number as may be permitted by
applicable law or rule), each of whom is a "disinterested person" within the
meaning of the applicable provisions of Rule 16b-3 under the Exchange Act and
an "outside director" within the meaning of Section 162(m)(3)(C) of the Code
and Treasury Regulation Section 1.162-27(e)(3), as amended from time to time.
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2.07. "Corporation" is defined in Section 1.
2.08. "Covered Employee" has the same meaning as set forth in
section 162(m) of the Code, and successor provisions.
2.09. "Deferred Stock" means a right, granted to a Participant
under Section 6.05, to receive Shares at the end of a specified deferral
period.
2.10. "Dividend Equivalent" means a right, granted to a
Participant under Section 6.03, to receive cash, Shares, other Awards, or other
property equal in value to dividends paid with respect to a specified number of
Shares.
2.11. "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time. References to any provision of the Exchange Act
shall be deemed to include successor provisions thereto and any rules and
regulations thereunder.
2.12. "Fair Market Value" means, with respect to Shares, Awards,
or other property, the fair market value of such Shares, Awards, or other
property determined by such methods or procedures as shall be established from
time to time by the Committee. Unless otherwise determined by the Committee,
the Fair Market Value of Shares as of any date shall be the closing sales price
on that date of a Share as reported in the New York Stock Exchange Composite
Transaction Report; provided, however, that if there were no sales on the
valuation date but there were sales on dates within a reasonable period both
before and after the valuation date, the Fair Market Value is the weighted
average of the closing prices on the nearest date before and the nearest date
after the valuation date. The average is to be weighted inversely by the
respective numbers of trading days between the selling dates and the valuation
date.
2.13. "Incentive Stock Option" means an Option that is intended
to meet the requirements of Section 422 of the Code.
2.14. "Non-Qualified Stock Option" means an Option that is not
intended to be an Incentive Stock Option.
2.15. "Option" means a right, granted to a Participant under
Section 6.06, to purchase Shares, other Awards, or other property at a
specified price during specified time periods. An Option may be either an
Incentive Stock Option or a Non-Qualified Stock Option.
2.16. "Other Stock-Based Award" means a right, granted to a
Participant under Section 6.08, that relates to or is valued by reference to
Shares.
2.17. "Participant" means a person who has been granted an Award
under the Plan.
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2.18. "Performance Award" means a right, granted to a Participant
under Section 6.02, to receive cash, Shares, other Awards, or other property
the payment of which is contingent upon achievement of performance goals
specified by the Committee.
2.19. "Performance-Based Restricted Stock" means Restricted Stock
that is subject to a risk of forfeiture if specified performance criteria are
not met within the restriction period.
2.20. "Plan" is defined in Section 1.
2.21. "Restricted Stock" means Shares granted to a Participant
under Section 6.04, that are subject to certain restrictions and to a risk of
forfeiture.
2.22. "Rule 16b-3" means Rule 16b-3, as from time to time amended
and applicable to Participants, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act.
2.23. "Shares" means the Common Stock, $1.00 par value per share,
of the Corporation and such other securities of the Corporation as may be
substituted for Shares or such other securities pursuant to Section 10.
2.24 "Stock Appreciation Right" means a right, granted to a
Participant under Section 6.07, to be paid an amount measured by the
appreciation in the Fair Market Value of Shares from the date of grant to the
date of exercise of the right, with payment to be made in cash, Shares, other
Awards, or other property as specified in the Award or determined by the
Committee.
2.25. "Subsidiary" means any corporation (other than the
Corporation) with respect to which the Corporation owns, directly or
indirectly, more than 50% of the total combined voting power for all classes of
stock. In addition, any other related entity may be designated by the Board or
the Committee as a Subsidiary, provided such entity could be considered as a
subsidiary according to generally accepted accounting principles.
2.26. "Year" means a calendar year.
SECTION 3. ADMINISTRATION.
3.01. Authority of the Committee. The Plan shall be administered
by the Committee. The Committee shall have full and final authority to take
the following actions, in each case subject to and consistent with the
provisions of the Plan:
(i) to select and designate Participants;
(ii) to designate Subsidiaries;
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(iii) to determine the type or types of Awards to be
granted to each Participant;
(iv) to determine the number of Awards to be granted, the
number of Shares to which an Award will relate, the terms and
conditions of any Award granted under the Plan (including, but not
limited to, any exercise price, grant price, or purchase price,
any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or
forfeiture, exercisability, or settlement of an Award, and waivers
or accelerations thereof, and waiver of performance conditions
relating to an Award, based in each case on such considerations as
the Committee shall determine), and all other matters to be
determined in connection with an Award;
(v) to determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of an
Award may be paid, in cash, Shares, other Awards, or other
property, or an Award may be cancelled, forfeited, or surrendered;
(vi) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property
payable with respect to an Award will be deferred either
automatically, at the election of the Committee, or pursuant to an
agreement between the Corporation and the Participant;
(vii) to prescribe the form of each Award Agreement, which
need not be identical for each Participant;
(viii) to adopt, amend, suspend, waive, and rescind such
rules and regulations and appoint such agents as the Committee may
deem necessary or advisable to administer the Plan;
(ix) to correct any defect or supply any omission or
reconcile any inconsistency in the Plan and to construe and
interpret the Plan and any Award, rules and regulations, Award
Agreement, or other instrument hereunder; and
(x) to make all other decisions and determinations as may
be required under the terms of the Plan or as the Committee may
deem necessary or advisable for the administration of the Plan.
3.02. Manner of Exercise of Committee Authority. Unless
authority is specifically reserved to the Board under the terms of the Plan, or
applicable law, the Committee shall have sole discretion in exercising such
authority under the Plan. Any action of the Committee with respect to the Plan
shall be final, conclusive, and binding on all persons, including the
Corporation, Subsidiaries, Participants, any person claiming any rights under
the Plan from or through any Participant, and shareholders. The express grant
of any
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specific power to the Committee, and the taking of any action by the Committee,
shall not be construed as limiting any power or authority of the Committee.
The Committee may delegate to officers or managers of the Corporation or any
Subsidiary the authority, subject to such terms as the Committee shall
determine, to perform administrative functions under the Plan.
3.03. Limitation of Liability. Each member of the Committee
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him by any officer or other employee of the
Corporation or any Subsidiary, the Corporation's independent certified public
accountants, or any executive compensation consultant or other professional
retained by the Corporation to assist in the administration of the Plan. No
member of the Committee, nor any officer or employee of the Corporation acting
on behalf of the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to
the Plan, and all members of the Committee and any officer or employee of the
Corporation acting on their behalf, shall, to the extent permitted by law, be
fully indemnified and protected by the Corporation with respect to any such
action, determination, or interpretation.
SECTION 4. SHARES SUBJECT TO THE PLAN. Subject to adjustment as
provided in Section 10, the total number of Shares reserved and available for
Awards under the Plan shall be 4.5 million shares. For purposes of this
Section 4, the number of and time at which Shares shall be deemed to be subject
to Awards and therefore counted against the number of Shares reserved and
available under the Plan shall be the earliest date at which the Committee can
reasonably estimate the number of Shares to be distributed in settlement of an
Award or with respect to which payments will be made; provided, however, that,
subject to the requirements of Rule 16b-3, the Committee may adopt procedures
for the counting of Shares relating to any Award for which the number of Shares
to be distributed or with respect to which payment will be made cannot be fixed
at the date of grant to ensure appropriate counting, avoid double counting (in
the case of tandem or substitute awards), and provide for adjustments in any
case in which the number of Shares actually distributed or with respect to
which payments are actually made differs from the number of Shares previously
counted in connection with such Award.
If any Shares to which an Award relates are forfeited or the Award
is settled or terminates without a distribution of Shares (whether or not cash,
other Awards, or other property is distributed with respect to such Award), any
Shares counted against the number of Shares reserved and available under the
Plan with respect to such Award shall, to the extent of any such forfeiture,
settlement or termination, again be available for Awards under the Plan;
provided, however, that such Shares shall be available for issuance only to the
extent that the related award would be exempt under Rule 16b-3.
SECTION 5. ELIGIBILITY. Awards may be granted only to
individuals who are officers or other salaried employees (including employees
who are also directors) of the Corporation or a Subsidiary; provided, however,
that no Award shall be granted to any member of the Committee.
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SECTION 6. SPECIFIC TERMS OF AWARDS.
6.01. General. Awards may be granted on the terms and conditions
set forth in this Section 6. In addition, the Committee may impose on any
Award or the exercise thereof, at the date of grant or thereafter (subject to
Section 11.02), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including without
limitation the acceleration of vesting of any Awards or terms requiring
forfeiture of Awards in the event of termination of employment by the
Participant. Except as provided in Sections 7.03 or 7.04, only services may be
required as consideration for the grant of any Award.
6.02. Performance Awards. Subject to the provisions of Sections
7.01 and 7.02, the Committee is authorized to grant Performance Awards to
Participants on the following terms and conditions:
(i) Awards and Conditions. A Performance Award shall
confer upon the Participant rights, valued as determined by the
Committee, and payable to, or exercisable by, the Participant to
whom the Performance Award is granted, in whole or in part, as
determined by the Committee, conditioned upon the achievement of
performance criteria determined by the Committee.
(ii) Other Terms. A Performance Award shall be
denominated in Shares and may be payable in cash, Shares, other
Awards, or other property, and have such other terms as shall be
determined by the Committee.
6.03. Dividend Equivalents. The Committee is authorized to grant
Dividend Equivalents to Participants. The Committee may provide that Dividend
Equivalents shall be paid or distributed when accrued or shall be deemed to
have been reinvested in additional Shares or Awards, or otherwise reinvested.
6.04. Restricted Stock. The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:
(i) Issuance and Restrictions. Restricted Stock shall be
subject to such restrictions on transferability and other
restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted Stock or
the right to receive dividends thereon), which restrictions may
lapse separately or in combination at such times, under such
circumstances, in such installments, or otherwise as the Committee
shall determine.
(ii) Forfeiture. Performance-Based Restricted Stock shall
be forfeited unless preestablished performance criteria specified
by the Committee are met during the applicable restriction period.
Except as otherwise determined by the Committee, upon termination
of employment (as determined under criteria established by the
Committee) during the applicable restriction period,
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Restricted Stock that is at that time subject to restrictions
shall be forfeited and returned to the Corporation, provided,
however, that the Committee may provide, by rule or regulation or
in any Award Agreement, or may determine in any individual case
after the award has been made, that restrictions or forfeiture
conditions relating to Restricted Stock will be waived in whole or
in part in the event of terminations resulting from specified
causes.
(iii) Certificates of Shares. Restricted Stock granted
under the Plan may be evidenced in such manner as the Committee
shall determine. If certificates representing Restricted Stock
are registered in the name of the Participant, such certificates
shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock,
the Corporation or an escrow agent acting on behalf of the
Corporation shall retain physical possession of the certificates,
and the Participant shall deliver a stock power to the Corporation
or such agent, endorsed in blank, relating to the Restricted
Stock.
(iv) Dividends. Unless otherwise determined by the
Committee, cash dividends and other distributions made or paid
with respect to the Shares underlying an Award of Restricted Stock
or Performance-Based Restricted Stock shall be held in escrow, and
may (but need not be) reinvested as determined by the Committee.
Such dividends and other distributions shall be paid to the
Participant, together with interest or other earnings thereon (if
any), at the time the Shares are delivered to the Participant.
Shares distributed in connection with a stock split or stock
dividend, and other property distributed as a dividend or other
distribution, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock or
Performance-Based Restricted Stock with respect to which such
stock or other property has been distributed.
6.05. Deferred Stock. The Committee is authorized to grant
Deferred Stock to Participants, on the following terms and conditions:
(i) Award and Restrictions. Delivery of Shares will
occur upon expiration of the deferral period specified for
Deferred Stock by the Committee (or, if permitted by the
Committee, as elected by the Participant). In addition, Deferred
Stock shall be subject to such restrictions as the Committee may
impose, which restrictions may lapse at the expiration of the
deferral period or at earlier specified times, separately or in
combination, in installments, or otherwise, as the Committee shall
determine.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment (as determined under
criteria established by the Committee) during the applicable
deferral period or portion thereof (as provided in the Award
Agreement evidencing the Deferred Stock), all Deferred
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Stock that is at that time subject to deferral (other than a
deferral at the election of the Participant) shall be forfeited;
provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Deferred Stock will be waived in whole or in part in
the event of terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the
forfeiture of Deferred Stock.
6.06. Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share
purchasable under an Option shall be determined by the Committee;
provided, however, that, except as provided in Section 7.03 or
Section 10, such exercise price shall be not less than the Fair
Market Value of a Share on the date of grant of such Option (or
such higher exercise price as may be required under Section 422 of
the Code in respect of Incentive Stock Options).
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be exercised in
whole or in part, the methods by which such exercise price may be
paid or deemed to be paid, the form of such payment, including,
without limitation, cash, Shares, other Awards or awards issued
under other Corporation plans, or other property (including notes
or other contractual obligations of Participants to make payment
on a deferred basis, such as through "cashless exercise"
arrangements), and the methods by which Shares will be delivered
or deemed to be delivered to Participants. Options shall expire
not later than ten years after the date of grant.
(iii) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, including but not
limited to the requirement that no Incentive Stock Option shall be
granted more than ten years after the effective date of the Plan.
Anything in the Plan to the contrary notwithstanding, no term of
the Plan relating to Incentive Stock Options shall be interpreted,
amended, or altered, nor shall any discretion or authority granted
under the Plan be exercised, so as to disqualify either the Plan
or any Incentive Stock Option under Section 422 of the Code. In
the event a Participant voluntarily disqualifies an Option as an
Incentive Stock Option, the Committee may, but shall not be
obligated to, make such additional Awards or pay bonuses as the
Committee shall deem appropriate to reflect the tax savings to the
Corporation which result from such disqualification.
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6.07 Stock Appreciation Rights. The Committee is authorized to
grant Stock Appreciation Rights to Participants on the following terms and
conditions:
(i) Right to Payment. A Stock Appreciation Right shall
confer on the Participant to whom it is granted a right to
receive, upon exercise thereof, the excess of (A) the Fair Market
Value of one Share on the date of exercise (or, if the Committee
shall so determine in the case of any such right, other than one
related to an Incentive Stock Option, the Fair Market Value of one
Share at any time during a specified period before or after the
date of exercise or the Change of Control Price as defined in
Section 9.03) over (B) the base price of the Stock Appreciation
Right as determined by the Committee as of the date of grant of
the Stock Appreciation Right, which, except as provided in Section
7.03, shall be not less than the Fair Market Value of one Share on
the date of grant.
(ii) Other Terms. The Committee shall determine the time
or times at which a Stock Appreciation Right may be exercised in
whole or in part, the method of exercise, method of settlement,
form of consideration payable in settlement, method by which
Shares will be delivered or deemed to be delivered to
Participants, and any other terms and conditions of any Stock
Appreciation Right. Limited Stock Appreciation Rights that may be
exercised only upon the occurrence of a Change of Control (as such
term is defined in Section 9.02) or as otherwise defined by the
Committee) may be granted under this Section 6.07. Stock
Appreciation Rights shall expire not later than ten years after
the date of grant.
6.08 Other Stock-Based Awards. The Committee is authorized to
grant to Participants such other Awards that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on or related
to, Shares, as deemed by the Committee to be consistent with the purposes of
the Plan, including without limitation, Shares awarded purely as a "bonus" and
not subject to any restrictions or conditions, convertible or exchangeable debt
securities, other rights convertible or exchangeable into Shares, purchase
rights, and Awards valued by reference to book value of Shares or the value of
securities of or the performance of specified Subsidiaries. The Committee
shall determine the terms and conditions of such Awards, which may include
performance criteria. Shares delivered pursuant to an Award in the nature of a
purchase right granted under this Section 6.08 shall be purchased for such
consideration, paid for at such times, by such methods, and in such forms,
including, without limitation, cash, Shares, other Awards, or other property,
as the Committee shall determine.
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
7.01. Performance-Based Awards. Performance Awards,
Performance-Based Restricted Stock, and certain Other Stock-Based Awards
subject to performance criteria are intended to be "qualified performance-based
compensation" within the meaning of section
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162(m) of the Code and shall be paid solely on account of the attainment of one
or more preestablished, objective performance goals within the meaning of
section 162(m) and the regulations thereunder. Until otherwise determined by
the Committee, the performance goal shall be the attainment of preestablished
levels of any of net income, market price per share, return on equity, return on
capital employed or cash flow.
The payout of any such Award to a Covered Employee may be reduced,
but not increased, based on the degree of attainment of other performance
criteria or otherwise at the discretion of the Committee.
7.02 Maximum Yearly Awards. The maximum annual Share amounts in
this Section 7.02 are subject to adjustment under Section 10 and are subject to
the Plan maximum under Section 4.
7.02.1 Performance-Based Awards. All Participants in the
aggregate may not receive in any Year Performance Awards,
Performance-Based Restricted Stock and Other Stock-Based Awards
subject to performance criteria exceeding, in the aggregate,
500,000 underlying Shares. The maximum amount payable in respect
of such Awards in any Year may not exceed 1,000,000 Shares (or the
then equivalent Fair Market Value thereof) in the aggregate to all
Participants and 100,000 Shares (or the then equivalent Fair
Market Value thereof) in the case of any individual Participant.
7.02.2 Stock Options and SARS. All Participants in the
aggregate may not receive in any Year Awards of Options and Stock
Appreciation Rights, in the aggregate, exceeding 1,000,000
underlying Shares. Each individual Participant may not receive in
any Year Awards of Options or Stock Appreciation Rights exceeding
250,000 underlying Shares.
7.02.3 Restricted Stock. A maximum of 1,000,000 shares
may be made subject to Awards of Restricted Stock in the aggregate
under the Plan.
7.03 Stand-Alone, Additional, Tandem, and Substitute Awards.
Awards granted under the Plan may, in the discretion of the Committee, be
granted either alone or in addition to, in tandem with, or in substitution for
any other Award granted under the Plan or any award granted under any other
plan of the Corporation, any Subsidiary, or any business entity to be acquired
by the Corporation or a Subsidiary, or any other right of a Participant to
receive payment from the Corporation or any Subsidiary. If any Award is
granted in substitution for another Award or award, the Committee shall require
the surrender of such other Award or award in consideration for the grant of
the new Award. Awards granted in addition to or in tandem with other Awards or
awards may be granted either as of the same time as or a different time from
the grant of such other Awards or awards. The per Share exercise price of any
Option, base price of any Stock Appreciation Right, or purchase price of any
other Award conferring a right to purchase Shares:
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(i) Granted in substitution for an outstanding Award or
award shall be not less than the lesser of the Fair Market Value
of a Share at the date such substitute award is granted or such
Fair Market Value at that date reduced to reflect the Fair Market
Value at that date of the Award or award required to be
surrendered by the Participant as a condition to receipt of the
substitute Award; or
(ii) Retroactively granted in tandem with an outstanding
Award or award shall be not less than the lesser of the Fair
Market Value of a Share at the date of grant of the later Award or
at the date of grant of the earlier Award or award.
7.04 Exchange Provisions. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Shares,
other Awards (subject to Section 7.03), or other property based on such terms
and conditions as the Committee shall determine and communicate to the
Participant at the time that such offer is made.
7.05 Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, however, that in no
event shall the term of any Option or a Stock Appreciation Right granted in
tandem therewith exceed a period of ten years from the date of its grant (or
such shorter period as may be required under Section 422 of the Code in respect
of Incentive Stock Options).
7.06 Form of Payment Under Awards. Subject to the terms of the
Plan and any applicable Award Agreement, payments to be made by the Corporation
or a subsidiary upon the grant or exercise of an Award may be made in such
forms as the Committee shall determine, including without limitation, cash,
Shares, other Awards, or other property, and may be made in a single payment or
transfer, in installments, or on a deferred basis. Such payments may include,
without limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the grant or crediting of
Dividend Equivalents in respect of installment or deferred payments denominated
in Shares.
7.07. Loan Provisions. With the consent of the Committee, and
subject to compliance with applicable laws and regulations, the Corporation may
make, guarantee, or arrange for, a loan or loans to a Participant with respect
to the exercise of any Option or other payment in connection with any Award,
including the payment by a Participant of any or all federal, state, or local
income or other taxes due in connection with any Award. Subject to such
limitations, the Committee shall have full authority to decide whether to make
a loan or loans hereunder and to determine the amount, terms, and provisions of
any such loan or loans, including the interest rate to be charged in respect of
any such loan or loans, whether the loan or loans are to be with or without
recourse against the borrower, the terms on which the loan is to be repaid and
conditions, if any, under which the loan or loans may be forgiven. Nothing in
this Section shall be construed as implying that the Committee shall or will
offer such loans.
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SECTION 8. GENERAL RESTRICTIONS APPLICABLE TO AWARDS.
8.01. Restrictions Under Rule 16b.3.
8.01.1. Six-Month Holding Period. Unless a Participant
could otherwise transfer an equity security, derivative security,
or Shares issued upon exercise of a derivative security granted
under the Plan without incurring liability under Section 16(b) of
the Exchange Act, (i) an equity security issued under the Plan,
other than an equity security issued upon exercise or conversion
of a derivative security granted under the Plan, shall be held for
at least six months from the date of acquisition; (ii) with
respect to a derivative security issued under the Plan, at least
six months shall elapse from the date of acquisition of the
derivative security to the date of disposition of the derivative
security (other than upon exercise or conversion) or its
underlying equity security; and (iii) any Award in the nature of a
Stock Appreciation Right must be held for six months from the date
of grant to the date of cash settlement.
8.01.2. Nontransferability. Awards which constitute
derivative securities (including any option, stock appreciation
right, or similar right) shall not be transferable by a
Participant except by will or the laws of descent and distribution
(except pursuant to a beneficiary designation authorized under
Section 8.02) or, if then permitted under Rule 16b-3, pursuant to
a qualified domestic relations order as defined under the Code or
Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder, and, in the case of an Incentive
Stock Option or, if then required by Rule 16b-3, any other
derivative security granted under the Plan, shall be exercisable
during the lifetime of a Participant only by such Participant or
his legal representative.
8.01.3. Compliance with Rule 16b.3. It is the intent of
the Corporation that this Plan comply in all respects with Rule
16b-3 in connection with any Award granted to a person who is
subject to Section 16 of the Exchange Act. Accordingly, if any
provision of this Plan or any Award Agreement does not comply with
the requirements of Rule 16b-3 as then applicable to any such
person, such provision shall be construed or deemed amended to the
extent necessary to conform to such requirements with respect to
such person.
8.02 Limits on Transfer of Awards; Beneficiaries. No right or
interest of a Participant in any Award shall be pledged, encumbered or
hypothecated to or in favor of any party (other than the Corporation or a
Subsidiary), or shall be subject to any lien, obligation, or liability of such
Participant to any party (other than the Corporation or a Subsidiary). Unless
otherwise determined by the Committee (subject to the requirements of Section
8.01.2), no Award subject to any restriction shall be assignable or
transferable by a Participant otherwise than by will or the laws of descent and
distribution (except to the Corporation under the terms of the Plan); provided,
however, that a Participant may, in the manner
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established by the Committee, designate a beneficiary or beneficiaries to
exercise the rights of the Participant, and to receive any distribution, with
respect to any Award, upon the death of the Participant. A beneficiary,
guardian, legal representative, or other person claiming any rights under the
Plan from or through any Participant shall be subject to all terms and
conditions of the Plan and any Award Agreement applicable to such Participant,
except to the extent the Plan and such Award Agreement otherwise provide with
respect to such persons, and to any additional restrictions deemed necessary or
appropriate by the Committee.
8.03. Registration and Listing Compliance. The Corporation shall
not be obligated to deliver any Award or distribute any Shares with respect to
any Award in a transaction subject to regulatory approval, registration, or any
other applicable requirement of federal or state law, or subject to a listing
requirement under any listing or similar agreement between the Corporation and
any national securities exchange, until such laws, regulations, and contractual
obligations of the Corporation have been complied with in full, although the
Corporation shall be obligated to use its best efforts to obtain any such
approval and comply with such requirements as promptly as practicable.
8.04 Share Certificates. All certificates for Shares delivered
under the Plan pursuant to any Award or the exercise thereof shall be subject
to such stop-transfer order and other restrictions as the Committee may deem
advisable under applicable federal or state laws, rules and regulations
thereunder, and the rules of any national securities exchange on which Shares
are listed. The Committee may cause a legend or legends to be placed on any
such certificates to make appropriate reference to such restrictions or any
other restrictions that may be applicable to Shares, including under the terms
of the Plan or any Award Agreement. In addition, during any period in which
Awards or Shares are subject to restrictions under the terms of the Plan or any
Award Agreement, or during any period during which delivery or receipt of an
Award or Shares has been deferred by the Committee or a Participant, the
Committee may require the Participant to enter into an agreement providing that
certificates representing Shares issuable or issued pursuant to an Award shall
remain in the physical custody of the Corporation or such other person as the
Committee may designate.
SECTION 9. CHANGE OF CONTROL PROVISIONS. Notwithstanding any
other provision of the Plan, the following acceleration and valuation
provisions shall apply in the event of a "Change of Control" as defined in this
Section 9.
9.01. Acceleration and Cash-Out Rights. In the event of a
"Change of Control," as defined in Section 9.02, automatically in the case of
all Participants:
(i) The performance criteria of all Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards
shall be deemed fully achieved and all such Awards shall be fully
earned and vested, subject only to the restrictions on
dispositions of equity securities set forth in Section 8.01.1 and
legal restrictions on the issuance of Shares set forth in Sections
8.03 and 8.04;
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(ii) Any Option, Stock Appreciation Right, and other Award
in the nature of a right that may be exercised which was not
previously exercisable and vested shall become fully exercisable
and vested, subject only to the restrictions on disposition of
equity securities set forth in Section 8.01.1 and legal
restrictions on the issuance of Shares set forth in Sections 8.03
and 8.04;
(iii) The restrictions, deferral limitations, and
forfeiture conditions applicable to any other Award granted under
the Plan shall lapse and such Awards shall be deemed fully vested,
subject only to the restrictions on dispositions of equity
securities set forth in Section 8.01.1 and legal restrictions on
the issuance of Shares set forth in Sections 8.03 and 8.04;
(iv) All outstanding Awards shall be cancelled and a
Participant holding any such Award shall be paid in cash therefor
on the basis of the "Change of Control Price" (as defined in
Section 9.03) as of the date that the Change of Control occurs, or
such other date as the Committee may determine prior to the Change
of Control; provided, however, that this Section 9.01 (iv) shall
not apply in the case of any Award if (a) the cancellation of and
payment for such Award would cause the Participant to incur actual
short-swing profits liability under Section 16(b) of the Exchange
Act (unless the Committee determines in its sole discretion that
such a result, in any particular case, would be inequitable), or
(b) initial shareholder approval of the Plan has not been
obtained; and
(v) To the extent Section 9.01(iv) of this Section 9 does
not apply and if at any time after the Change of Control the Shares
are no longer readily tradeable on an established exchange, a
Participant shall, as of the date on which the Change of Control
occurs, be entitled to receive consistent with Rule 16b-3, and the
Corporation shall use its best efforts to compel and obligate the
surviving or resulting corporation in the Change of Control and/or
the other party to the agreement or transaction resulting in the
Change of Control to grant to the Participant, substitute Options,
Stock Appreciation Rights and/or Restricted Stock, as the case may
be, in respect of the shares of common stock or other capital stock
of such surviving or resulting corporation, or such other party
involved in the Change of Control, on such terms and conditions, as
to the number of shares, pricing, vesting, exercisability and
otherwise, which shall substantially preserve the value, rights and
benefits of any affected Options, Stock Appreciation Rights and/or
Restricted Stock, as the case may be, previously granted hereunder.
9.02. Change of Control. For purposes of Section 9.01, a "Change
of Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either
the then (i) outstanding shares of Common
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Stock of the Corporation (the "Outstanding Corporation Common
Stock") or (ii) combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally in
the election of directors (the "Outstanding Voting Securities")
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition by the
Corporation or any of its subsidiaries, (ii) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any of its subsidiaries, (iii)
any acquisition by any corporation with respect to which,
following such acquisition, more than 51% of, respectively, the
then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Voting
Securities immediately prior to such acquisition in substantially
the same proportions as their ownership, immediately prior to such
acquisition, of the Outstanding Corporation Common Stock and
Outstanding Voting Securities, as the case may be, or (iv) any
acquisition by one or more Hess Entity (for this purpose a "Hess
Entity" means (A) Mr. Leon Hess or any of his children, (B) any
spouse of any person described in Section 9.02(a)(iv)(A) above,
(C) any affiliate (as such term is defined in Rule 12b-2 under
the Exchange Act) of any person described in Section
9.02(a)(iv)(A) above, (D) the Hess Foundation Inc., or (E) any
persons comprising a group controlled (as such term is defined in
such Rule 12b-2) by one or more of the foregoing persons or
entities described in this Section 9.02 (a)(iv)); or
(b) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") ceasing for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date of the Plan whose election, or nomination for
election by the Corporation's shareholders, was approved by a vote
of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were
a member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as a
result of either an actual or threatened solicitation to which
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act
applies or other actual or threatened solicitation of proxies or
consents; or
(c) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation, in each case, with
respect to which all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Voting
Securities immediately prior to such reorganization, merger
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or consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than
51% of, respectively, the then outstanding shares of common stock
and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from
such reorganization, merger or consolidation in substantially the
same proportions as their ownership, immediately prior to such
reorganization, merger or consolidation of the Outstanding
Corporation Common Stock and Outstanding Voting Securities, as the
case may be; or
(d) Approval by the shareholders of the Corporation of (i)
a complete liquidation or dissolution of the Corporation or (ii)
the sale or other disposition of all or substantially all of the
assets of the Corporation, other than to a corporation, with
respect to which following such sale or other disposition, more
than 51% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and
Outstanding Voting Securities immediately prior to such sale or
other disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other disposition, of
the Outstanding Corporation Common Stock and Outstanding Voting
Securities, as the case may be. The term "the sale or other
disposition of all or substantially all of the assets of the
Corporation" shall mean a sale or other disposition transaction or
series of related transactions involving assets of the Corporation
or of any direct or indirect subsidiary of the Corporation
(including the stock of any direct or indirect subsidiary of the
Corporation) in which the value of the assets or stock being sold
or otherwise disposed of (as measured by the purchase price being
paid therefor or by such other method as the Board determines is
appropriate in a case where there is no readily ascertainable
purchase price) constitutes more than two-thirds of the fair
market value of the Corporation (as hereinafter defined). The
"fair market value of the Corporation" shall be the aggregate
market value of the then Outstanding Corporation Common Stock (on
a fully diluted basis) plus the aggregate market value of the
Corporation's other outstanding equity securities. The aggregate
market value of the shares of Outstanding Corporation Common Stock
shall be determined by multiplying the number of shares of such
Common Stock (on a fully diluted basis) outstanding on the date of
the execution and delivery of a definitive agreement with respect
to the transaction or series of related transactions (the
"Transaction Date") by the average closing price of the shares of
Outstanding Corporation Common Stock for the ten trading days
immediately preceding the Transaction Date. The aggregate market
value of any other equity securities of the Corporation shall be
determined in a manner similar to that prescribed in the
immediately preceding
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sentence for determining the aggregate market value of the shares
of Outstanding Corporation Common Stock or by such other method as
the Board shall determine is appropriate.
9.03. Change of Control Price. For purposes of this Section 9,
"Change of Control Price" means the highest price per share paid in any
transaction reported on the securities exchange or trading system on which the
Shares are then primarily listed or traded, or paid or offered in any
transaction related to a Change of Control of the Corporation at any time
during the preceding 60-day period as determined by the Committee, except that
in the case of Incentive Stock Options and Stock Appreciation Rights relating
thereto, such price shall be based only on transactions reported for the date
on which the Committee decides to cash out such Awards.
SECTION 10. ADJUSTMENT PROVISIONS. In the event that the
Committee shall determine that any dividend or other distribution (whether in
the form of cash, Shares, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Shares such that an adjustment is determined
by the Committee to be appropriate in order to prevent dilution or enlargement
of the rights of Participants under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the number and kind
of Shares which may thereafter be issued in connection with Awards (ii) the
number and kind of Shares issued or issuable in respect of outstanding Awards,
and (iii) the exercise price, base price, or purchase price relating to any
Award or, if deemed appropriate, make provision for a cash payment with respect
to any outstanding Award; provided, however, in each case, that, with respect
to Incentive Stock Options, no such adjustment shall be authorized to the
extent that such authority would cause the Plan to violate Section 422(b)(1) of
the Code. In addition, the Committee is authorized to make adjustments in the
terms and conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events (including, without limitation, events described
in the preceding sentence) affecting the Corporation or any Subsidiary or the
financial statements of the Corporation or any Subsidiary, or in response to
changes in applicable laws, regulations, or accounting principles.
SECTION 11. CHANGES TO THE PLAN AND AWARDS.
11.01. Changes to the Plan. The Board may amend, alter, suspend,
discontinue or terminate the Plan without the consent of shareholders or
Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Corporation's shareholders within one year after such Board action if such
shareholder approval is required by any federal or state law or regulation or
the rules of any stock exchange on which the Shares may be listed in order to
maintain compliance therewith, or if the Board in its discretion determines
that obtaining such shareholder approval is for any reason advisable; provided,
however, that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or
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termination of the Plan after the initial shareholder approval of the Plan may
materially impair the rights of such Participant under any Award theretofore
granted to him.
11.02. Changes to Awards. The Committee may waive any conditions
or rights under, or amend, alter, suspend, discontinue, or terminate, any Award
theretofore granted and any Award Agreement relating thereto; provided,
however, that, without the consent of an affected Participant, no such
amendment, alteration, suspension, discontinuation, or termination of any Award
after the initial shareholder approval of the Plan may materially impair the
rights of such Participant under such Award.
SECTION 12. GENERAL PROVISIONS.
12.01. No Rights to Awards. No Participant or employee shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Participants and employees.
12.02. No Shareholder Rights. No Award shall confer on any
Participant any of the rights of a shareholder of the Corporation unless and
until Shares are duly issued or transferred to the Participant in accordance
with the terms of the Award.
12.03. Tax Withholding. To the extent and in the manner
permitted by applicable law, the Corporation or any Subsidiary is authorized to
withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Shares, or any payroll or other payment
to a Participant, amounts or withholding and other taxes due with respect
thereto, its exercise, or any payment thereunder, and to take such other action
as the Committee may deem necessary or advisable to enable the Corporation and
Participants to satisfy obligations for the payment of withholding taxes and
other tax liabilities relating to any Award. This authority shall include
authority to withhold or receive Shares or other property and to make cash
payments in respect thereof in satisfaction of the Participant's tax
obligations.
12.04. No Right to Employment. Nothing contained in the Plan or
any Award Agreement shall confer, and no grant of an Award shall be construed
as conferring, upon any employee any right to continue in the employment of the
Corporation or any Subsidiary or to interfere in any way with the right of the
Corporation or any Subsidiary to terminate such employment at any time or
increase or decrease such employee's compensation from the rate in existence at
the time of granting of an Award.
12.05. Unfunded Status of Awards. The Plan is intended to
constitute an unfunded incentive and deferred compensation plan for tax
purposes and for purposes of Title I of the Employee Retirement Income Security
Act of 1974, as amended. With respect to any payments not yet made to a
Participant pursuant to an Award the Plan constitutes a mere promise to make
the benefit payments provided for herein and nothing contained in the Plan or
any Award shall give any such Participant any rights that are greater than
those of a general creditor of the Corporation; provided, however, that the
Committee may authorize the
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creation of trusts or make other arrangements to meet the Corporation's
obligations under the Plan to deliver cash, Shares, other Awards, or other
property pursuant to any award, which trusts or other arrangements shall be
consistent with the unfunded status of the Plan.
12.06. Other Compensatory Arrangements. The Corporation or any
Subsidiary shall be permitted to adopt other or additional compensation
arrangements (which may include arrangements which relate to Awards), and such
arrangements may be either generally applicable or applicable only in specific
cases.
12.07. Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award. The Committee shall determined
whether cash, other Awards, or other property shall be issued or paid in lieu
of fractional Shares or whether such fractional Shares or any rights thereto
shall be forfeited or otherwise eliminated.
12.08. Governing Law. The validity, construction, and effect of
the Plan, any rules and regulations relating to the Plan, and any Award
Agreement shall be determined in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflict of laws thereof,
and applicable federal law.
SECTION 13. EFFECTIVE DATE. The Plan shall become effective
December 6, 1995, subject to approval of the Plan within one year after such
date by the affirmative vote of the holders of a majority of the Shares present
or represented and entitled to vote at a meeting of the Corporation's
shareholders, or any adjournment thereof. If such approval is not obtained,
the Plan and all Awards theretofore made thereunder shall be void ab initio and
of no force or effect.
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Exhibit 5
[Milbank, Tweed, Hadley & McCloy Letterhead]
December 18, 1995
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel for Amerada Hess Corporation, a
Delaware corporation (the "Company"), in connection with the registration by
the Company under the Securities Act of 1933, as amended, of 4,500,000 shares
of Common Stock of the Company ("Common Stock") issuable under the Amerada Hess
Corporation 1995 Long-Term Incentive Plan (the "Plan") under a Registration
Statement on Form S-8 (the "Registration Statement") about to be filed with the
Securities and Exchange Commission.
In rendering the opinions hereinafter expressed, we have examined
originals or copies certified or otherwise identified to our satisfaction of
all such records of the Company, agreements and other instruments, certificates
of public officials, certificates of officers and representatives of the
Company and such other documents as we have deemed necessary as a basis for the
opinions expressed below. In our examination we have assumed and have not
verified that the signatures on all documents which we have examined are
genuine, the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us
as copies. As to various questions of fact material to such opinions we have,
when relevant facts were not independently established, relied upon
certifications of officers of the Company and other appropriate persons.
Based on the foregoing, and having regard to legal considerations
we deem relevant, we are of the opinion that when said shares of Common Stock
have been registered under the Securities Act of 1933, as amended, and when the
Company has received the consideration to be received for said shares in
accordance with the provisions of the Plan and
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said shares of Common Stock have been issued as provided under the Plan, said
shares of Common Stock will be duly authorized, validly issued and outstanding,
fully paid and nonassessable, with no personal liability attaching to the
ownership thereof.
The foregoing opinions are limited to matters involving the
federal laws of the United States of America, the general corporate law of the
State of Delaware and the laws of the State of New York, and we do not express
any opinion as to the laws of any other jurisdiction.
We wish to note that Mr. Roger B. Oresman, a consulting partner in
this Firm, is a director of the Company and beneficially owns, as of the date
hereof, 75,040 shares of Company Common Stock, 65,051 of which are held in
trusts of which Mr. Oresman is a co-trustee and as to which he has shared
voting and investment power.
We hereby consent to the inclusion of this opinion in the
Registration Statement and to the reference to this Firm under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ MILBANK, TWEED, HADLEY & MCCLOY
MLW/RSR
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Exhibit 23(a)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amerada Hess Corporation 1995 Long-Term Incentive
Plan, of our report dated February 15, 1995, with respect to the consolidated
financial statements of Amerada Hess Corporation incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 1994.
/s/ Ernst & Young LLP
New York, NY
December 15, 1995
