0000950129-95-000900.txt : 19950809
0000950129-95-000900.hdr.sgml : 19950809
ACCESSION NUMBER: 0000950129-95-000900
CONFORMED SUBMISSION TYPE: S-4
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 19950808
SROS: CSE
SROS: NYSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: APACHE CORP
CENTRAL INDEX KEY: 0000006769
STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311]
IRS NUMBER: 410747868
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-4
SEC ACT: 1933 Act
SEC FILE NUMBER: 033-61669
FILM NUMBER: 95559744
BUSINESS ADDRESS:
STREET 1: 2000 POST OAK BLVD
STREET 2: ONE POST OAK CENTER STE 100
CITY: HOUSTON
STATE: TX
ZIP: 77056-4400
BUSINESS PHONE: 7132966000
MAIL ADDRESS:
STREET 1: 2000 POST OAK BLVD
STREET 2: STE 100
CITY: HOUSTON
STATE: TX
ZIP: 77056-4400
FORMER COMPANY:
FORMER CONFORMED NAME: APACHE OIL CORP
DATE OF NAME CHANGE: 19660830
S-4
1
FORM S-4 -- APACHE CORPORATION
1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
APACHE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1311 41-0747868
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ONE POST OAK CENTRAL Z.S. KOBIASHVILI
2000 POST OAK BOULEVARD, SUITE 100 APACHE CORPORATION
HOUSTON, TEXAS 77056-4400 ONE POST OAK CENTRAL
(713) 296-6000 2000 POST OAK BOULEVARD, SUITE 100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE HOUSTON, TEXAS 77056-4400
NUMBER, INCLUDING AREA CODE, OF (713) 296-6000
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
Copies to:
ERIC L. HARRY JOHN B. CLUTTERBUCK
APACHE CORPORATION MAYOR, DAY, CALDWELL & KEETON, L.L.P.
ONE POST OAK CENTRAL 700 LOUISIANA
2000 POST OAK BOULEVARD, SUITE 100 HOUSTON, TEXAS 77002
HOUSTON, TEXAS 77056-4400 (713) 225-7000
(713) 296-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: On a
continuous or delayed basis pursuant to Rule 415 after this Registration
Statement becomes effective.
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, $1.25 par value.... 2,000,000 shares $26.50 $53,000,000 $18,276
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Common Stock Purchase
Rights(2)...................... 2,000,000 rights -- -- None
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) and Rule 457(c), based on the average of the high
and low prices of Apache Common Stock reported on the New York Stock
Exchange on August 4, 1995.
(2) Common Stock Purchase Rights are evidenced by certificates for shares of
Apache Common Stock and automatically trade with the Apache Common Stock.
Value attributable to such Common Stock Purchase Rights, if any, is
reflected in the market price of the Apache Common Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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APACHE CORPORATION
CROSS REFERENCE SHEET
BETWEEN ITEMS IN PART I OF THE REGISTRATION STATEMENT
(FORM S-4) AND PROSPECTUS PURSUANT TO ITEM 501(B)
ITEM OF FORM S-4 LOCATION IN PROSPECTUS
---------------- ----------------------
1. Forepart of Registration Statement and Outside Front Cover
Page of Prospectus........................................ Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages of Prospectus... Inside Front Cover Page of
Prospectus; Available Information;
Incorporation of Certain Documents
by Reference
3. Risk Factors, Ratio of Earnings to Fixed Charges and Other
Information............................................... Outside Front Cover Page of
Prospectus; Incorporation of
Certain Documents by Reference;
The Company
4. Terms of the Transaction.................................. Outside Front Cover Page of
Prospectus; Apache Acquisition
Program; Comparison of Certain Oil
and Gas Interests and Common
Stock; Use of Proceeds
5. Pro Forma Financial Information........................... *
6. Material Contacts with the Company Being Acquired......... *
7. Additional Information Required for Reoffering by Persons
and Parties Deemed To Be Underwriters..................... *
8. Interests of Named Experts and Counsel.................... *
9. Disclosure of Commission Position on Indemnification For
Securities Act Liabilities................................ *
10. Information with Respect to S-3 Registrants............... The Company; Apache Acquisition
Program; Comparison of Certain Oil
and Gas Interests and Common
Stock; Use of Proceeds;
Description of Capital Stock;
Incorporation of Certain Documents
by Reference
11. Incorporation of Certain Information by Reference......... Incorporation of Certain Documents
by Reference
12. Information with Respect to S-2 or S-3 Registrants........ *
13. Incorporation of Certain Information by Reference......... *
14. Information with Respect to Registrants other than S-3 or
S-2 Registrants........................................... *
15. Information with Respect to S-3 Companies................. *
16. Information with Respect to S-2 or S-3 Companies.......... *
17. Information with Respect to Companies other than S-3 or
S-2 Companies............................................. *
18. Information if Proxies, Consents or Authorizations are to
be Solicited.............................................. *
19. Information if Proxies, Consents or Authorizations are not
to be Solicited in an Exchange Offer...................... *
---------------
* Not applicable or answer is negative.
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***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
SUBJECT TO COMPLETION DATED AUGUST 8, 1995
PROSPECTUS
2,000,000 SHARES
APACHE CORPORATION
COMMON STOCK
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This Prospectus relates to 2,000,000 shares (the "Shares") of common stock,
par value $1.25 per share ("Common Stock"), of Apache Corporation, a Delaware
corporation (the "Company" or "Apache"), accompanied by Common Stock Purchase
Rights, which may be offered and issued by the Company from time to time in
connection with acquisitions of interests in oil and gas properties and related
pipelines, equipment, contracts or other assets, or in partnerships,
corporations or other entities that hold such interests or assets ("Oil and Gas
Interests"). See "Apache Acquisition Program."
This Prospectus is not available for use in connection with reoffers or
resales of Shares by persons who may be deemed "affiliates" of either the
Company or the entities from which Oil and Gas Interests will be acquired within
the meaning of the Securities Act of 1933, as amended ("Securities Act"), and
the rules thereunder. Such affiliates may resell such Shares pursuant to Rule
145(d) under the Securities Act or as otherwise provided under the Securities
Act. See "Rule 145(d) Resales."
The Common Stock of the Company is listed for trading on The New York Stock
Exchange, Inc. ("NYSE") and the Chicago Stock Exchange ("CSE"). On August 4,
1995, the per share closing price of the Common Stock on the NYSE Composite
Transactions Reporting System was $26.50.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------
THE DATE OF THIS PROSPECTUS IS , 1995.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING OF SECURITIES MADE HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO PURCHASE, ANY SECURITIES IN ANY JURISDICTION IN WHICH, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION OF AN OFFER.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY DISTRIBUTION OF THE SECURITIES
OFFERED HEREBY SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT
THE INFORMATION SET FORTH OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
THIS PROSPECTUS INCORPORATES BY REFERENCE CERTAIN DOCUMENTS WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THE COMPANY UNDERTAKES TO PROVIDE COPIES
OF SUCH DOCUMENTS (OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS
ARE SPECIFICALLY INCORPORATED BY REFERENCE), WITHOUT CHARGE, TO ANY PERSON TO
WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST TO Z.S.
KOBIASHVILI, VICE PRESIDENT AND GENERAL COUNSEL, APACHE CORPORATION, ONE POST
OAK CENTRAL, 2000 POST OAK BOULEVARD, SUITE 100, HOUSTON, TEXAS 77056-4400
(TELEPHONE (713) 296-6000). IN ORDER TO ENSURE TIMELY DELIVERY OF DOCUMENTS,
REQUESTS SHOULD BE RECEIVED BY THE COMPANY AT LEAST FIVE BUSINESS DAYS PRIOR TO
THE DATE ON WHICH THE FINAL INVESTMENT DECISION MUST BE MADE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at Seven World Trade
Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition,
reports, proxy statements and other information may be inspected at the offices
of the NYSE, 20 Broad Street, New York, New York 10005, and also at the offices
of the CSE, One Financial Place, 440 S. LaSalle Street, Chicago, Illinois
60605-1070.
The Company has filed with the Commission a Registration Statement on Form
S-4 (together with all amendments, supplements and exhibits thereto, the
"Registration Statement") under the Securities Act with respect to the Common
Stock to be issued pursuant to this Prospectus. This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which were omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission are not necessarily complete, and in each
instance reference is made to the copy of such document so filed, each such
statement being qualified in its entirety by such reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated herein by reference:
1. Annual Report on Form 10-K/A for the fiscal year ended December 31,
1994, filed August 2, 1995.
2. Quarterly Report on Form 10-Q/A for the three-month period ended March
31, 1995, filed August 4, 1995.
3. Current Report on Form 8-K dated March 1, 1995, as amended by Amendment
No. 1 on Form 8-K/A filed March 22, 1995.
4. Current Report on Form 8-K/A dated May 17, 1995, filed July 17, 1995.
5. Registration Statement on Form 8-A, dated January 21, 1986, for the
Company's Rights Agreement dated January 10, 1986.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document, which 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 Prospectus.
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THE COMPANY
Apache Corporation, a Delaware corporation formed in 1954, is an
independent energy company that explores for, develops, produces, gathers,
processes and markets natural gas and crude oil. In North America, the Company's
exploration and production interests are spread over 15 states and two
provinces, focusing on the Gulf of Mexico, the Anadarko Basin of Oklahoma, the
Permian Basin of West Texas and New Mexico, the Gulf Coast, the Western
Sedimentary Basin in Canada and the Rocky Mountains. Outside of North America,
the Company has production interests in Australia, and in 1994 focused its
international exploration efforts offshore Western Australia, China and the
Ivory Coast, and in Indonesia and Egypt. The Common Stock has been listed on the
NYSE since 1969, and on the CSE since 1960.
The Company holds interests in many of its North American and international
properties through operating subsidiaries, such as Apache Canada Ltd., MW
Petroleum Corporation, Apache Energy Resources Corporation, Apache Energy
Limited, Apache International, Inc. and Apache Overseas, Inc. The Company treats
all operations as one segment of business.
USE OF PROCEEDS
This Prospectus relates to Common Stock (accompanied by Common Stock
Purchase Rights) which may be offered and issued by the Company from time to
time in connection with acquisitions of Oil and Gas Interests. Other than the
Oil and Gas Interests acquired, there will be no proceeds to the Company from
these offerings.
APACHE ACQUISITION PROGRAM
As a part of its growth strategy, the Company pursues an aggressive and
selective acquisition program targeting properties that have ascertainable
additional reserve potential and are compatible with its existing operations.
The terms of acquisitions will be determined by negotiations between the
Company's representatives and the owners or controlling persons of the Oil and
Gas Interests to be acquired. Factors to be taken into account in acquisitions
may include, among other relevant factors, the estimated quantities and costs of
development and production of the oil and gas reserves represented by the Oil
and Gas Interests, the location, historical and projected rate of hydrocarbon
production and potential for future exploration, development, workover and
recompletion of the properties to which the Oil and Gas Interests relate, such
properties' operating costs and infrastructure, the availability and cost of
transportation to markets, the prospects generally for hydrocarbon prices, and
the market value of the Common Stock where pertinent. It is anticipated that the
Shares issued in any such acquisition will be valued at a price reasonably
related to the current market value of the Common Stock, either at the time the
terms of the acquisition are tentatively agreed upon, at or about the time of
closing, or during the period or periods prior to delivery of the Shares.
The consideration for acquisitions will consist of Shares, cash, notes or
other evidences of indebtedness, guarantees, assumption of liabilities and
obligations, or a combination thereof, as determined from time to time by
negotiations between the Company and the owners or controlling persons of the
Oil and Gas Interests to be acquired. In addition, the Company may enter into
other agreements with the former owners or key executive personnel involved with
the Oil and Gas Interests acquired, including without limitation, management,
consulting and noncompetition agreements.
COMPARISON OF CERTAIN OIL AND GAS INTERESTS
AND COMMON STOCK
There are a number of significant differences between ownership of Common
Stock and ownership of Oil and Gas Interests. The following provides a brief
comparison of principal differences between Common Stock and the rights
generally associated with certain types of Oil and Gas Interests known as
royalty interests and working interests. Since the rights associated with each
type of Oil and Gas Interest will be governed entirely
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by the documents executed in connection with the creation of such interests and
applicable state and federal law, this comparison is necessarily general in
nature and should be read in conjunction with a review of the applicable
governing documents and relevant law.
The shares of Common Stock will be fully paid and nonassessable. Royalty
interest owners do not generally bear any expenses of production, but working
interest owners generally are subject to assessments for all costs of
exploration, development and production.
The shares of Common Stock will be listed on the NYSE and CSE and, subject
to applicable securities laws, will be freely transferable. The transferability
of royalty interests and working interests is generally restricted by the
unavailability of a market therefor.
The holders of Common Stock are entitled to dividends only if declared by
the Company's Board of Directors from funds legally available therefor and are
entitled, in the event of liquidation, to share ratably in all assets of the
Company remaining after payment of liabilities. Holders of royalty and working
interests are entitled to a share of oil and gas production or revenues from the
properties covered by their interests.
The Company is a taxable entity and pays federal income taxes on its income
computed at the corporate level. For federal income tax purposes, any dividends
or other distributions to holders of Common Stock will constitute ordinary
income to them, and a sale of shares of Common Stock for cash will normally
result in a capital gain or loss. Royalty interest and working interest owners
generally pay federal income taxes directly based on their share of revenues
attributable to production less any available deductions.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 5,000,000 shares of
preferred stock, none of which were outstanding as of July 31, 1995, and
215,000,000 shares of Common Stock, of which 69,918,305 were outstanding as of
July 31, 1995.
The descriptions set forth below of the Common Stock and preferred stock
constitute brief summaries of certain provisions of the Company's Restated
Certificate of Incorporation and Bylaws and are qualified in their entirety by
reference to the relevant provisions of such documents, both of which are filed
or listed as exhibits to the Registration Statement of which this Prospectus is
a part and are incorporated herein by reference.
COMMON STOCK
All outstanding shares of Common Stock are fully paid and nonassessable,
and all holders of Common Stock have full voting rights and are entitled to one
vote for each share held of record on all matters submitted to a vote of
stockholders. The Board of Directors of the Company is classified into three
groups of approximately equal size, one-third elected each year. Stockholders do
not have the right to cumulate votes in the election of directors and have no
preemptive or subscription rights. The Common Stock is neither redeemable nor
convertible, and there are no sinking fund provisions relating to such stock.
Subject to preferences that may be applicable to any shares of preferred
stock outstanding at the time, holders of Common Stock are entitled to dividends
when and as declared by the Board of Directors from funds legally available
therefor and are entitled, in the event of liquidation, to share ratably in all
assets of the Company remaining after payment of liabilities.
The Company's current policy is to reserve one share of Common Stock for
each share issued in order to provide for the possible exercise of the Common
Stock Purchase Rights ("Rights") under the Company's existing Rights Agreement.
The currently outstanding Common Stock and the Rights are listed on the
NYSE and the CSE. Norwest Bank Minnesota, National Association, is the transfer
agent and registrar for the Common Stock.
The Company typically mails its annual report to stockholders within 120
days after the end of its fiscal year. Notices of stockholder meetings are
mailed to record holders of Common Stock at their addresses shown on the books
of the transfer agent and registrar.
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PREFERRED STOCK
No preferred stock is outstanding. Shares of preferred stock may be issued
by the Board of Directors with such voting powers and in such classes and
series, and with such designations, preferences, and relative, participating,
optional or other special rights qualifications, limitations or restrictions
thereof (including conversion into or exchange for other securities of the
Company or its subsidiaries), as may be stated and expressed in the resolution
or resolutions providing for the issuance of such stock adopted by the Company's
Board of Directors. The Company has no current plans to issue any preferred
stock.
RULE 145(D) RESALES
Persons receiving Common Stock pursuant to this Prospectus will generally
be deemed an "affiliate" for purposes of Rule 145(d) under the Securities Act.
Rule 145(d) provides that such affiliates may resell their Common Stock in the
manner specified therein and, by so doing, avoid being deemed to be engaged in a
distribution or an underwriter of such Common Stock.
Resales of Common Stock may be made in compliance with Rule 145(d)
provided, among other things, that (i) Apache continues to comply with its
obligations to make filings under the Exchange Act, (ii) sales of Common Stock
by the affiliate during the preceding three months are limited to the greater of
(A) one percent of the outstanding Common Stock, and (B) the average weekly
trading volume of the Common Stock, and (iii) all sales are made through
"brokers' transactions," which generally exclude any underwriting or other form
of solicitation.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Mayor, Day, Caldwell & Keeton, L.L.P., Houston,
Texas.
EXPERTS
The audited consolidated financial statements of the Company and the
audited statement of Combined Revenues and Direct Operating Expenses for the Oil
and Gas Properties of Texaco Exploration and Production Inc. Sold to Apache
Corporation, each incorporated by reference into this Prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto. In its report on the consolidated financial
statements of the Company, that firm states that with respect to DEKALB Energy
Company ("DEKALB") its opinion is based on the report of other independent
public accountants, namely Coopers & Lybrand. The financial statements referred
to above have been incorporated by reference or included herein in reliance upon
the authority of said firm as experts in accounting and auditing in giving said
reports.
The audited consolidated financial statements of DEKALB incorporated by
reference in this registration statement have been audited by Coopers & Lybrand,
Chartered Accountants, as indicated in their report with respect thereto, and
are incorporated herein in reliance upon the authority of said firm as experts
in accounting and auditing in giving said reports.
The information incorporated by reference herein regarding the total proved
reserves of the Company was prepared by the Company and reviewed by Ryder Scott
Company Petroleum Engineers ("Ryder Scott") as stated in their letter report
with respect thereto. The information incorporated by reference herein regarding
the total proved reserves of DEKALB was prepared by DEKALB and reviewed by Ryder
Scott as stated in their letter report with respect thereto.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
authorizes a corporation to 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 (other than an action by or in the right of the corporation)
because the person 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 or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
the suit or proceeding if the person 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
reason to believe his conduct was unlawful. Similar indemnity is authorized
against expenses (including attorneys' fees) actually and reasonably incurred in
defense or settlement of any pending, completed or threatened action or suit if
such person 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 provided further
that (unless a court of competent jurisdiction otherwise provides) the person
shall not have been adjudged liable to the corporation. The indemnification may
be made only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to 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 or enterprise,
against any liability asserted against him and incurred by him in any capacity,
or arising out of his status as such, whether or not the corporation would
otherwise have the power to indemnify him. The Company maintains policies
insuring the officers and directors of the Company and its subsidiaries against
certain liabilities for actions taken in their capacities, including liabilities
under the Securities Act.
Article VII of the Company's Bylaws provides, in substance, that directors,
officers, employees and agents of the Company shall be indemnified to the extent
permitted by Section 145 of the DGCL. Additionally, the Seventeenth Article of
the Company's Certificate of Incorporation eliminates in certain circumstances
the monetary liability of directors of the Company for a breach of their
fiduciary duty as directors. These provisions do not eliminate the liability of
a director (i) for a breach of a director's duty of loyalty to the corporation
or its stockholders; (ii) for acts or omissions by a director not in good faith;
(iii) for acts or omissions by a director involving intentional misconduct or a
knowing violation of the law; (iv) under Section 174 of the DGCL (relating to
the declaration of dividends and purchase or redemption of shares in violation
of the DGCL); and (v) for transactions from which the director derives an
improper personal benefit.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Reference is made to the Exhibit Index that immediately precedes the
exhibits filed with this Registration Statement.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes as follows:
(a) 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 this registration statement shall be
deemed to be a new registration statement
II-1
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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;
(b) (1) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other Items of the applicable form;
(2) That every prospectus (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
registration statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(c) 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 provisions set forth in Item 14 hereof, 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 Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue;
(d) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the registration statement through the date of responding to the
request;
(e) To supply by means of a post-effective amendment all required
information concerning a transaction, and the company being acquired involved
therein, that was not included in the registration statement when it became
effective;
(f) (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 this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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-offering amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-2
11
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas.
APACHE CORPORATION
Date: August 8, 1995 By: /s/ RAYMOND PLANK
--------------------------------------
Raymond Plank
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The undersigned directors and officers of Apache Corporation do hereby
constitute and appoint Raymond Plank, G. Steven Farris, Z.S. Kobiashvili and
Mark A. Jackson, and each of them, with full power of substitution, our true and
lawful attorneys-in-fact and agents to do any and all acts and things in our
name and behalf in our capacities as directors and officers, and to execute any
and all instruments for us and in our names in the capacities indicated below
which such person may deem necessary or advisable to enable Apache Corporation
to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, including specifically, but not
limited to, power and authority to sign for us, or any of us, in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereto; and we do hereby ratify and confirm all that such person or persons
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities and on the dates indicated. (Apache Corporation does not have a
Principal Financial Officer.)
SIGNATURE TITLE DATE
--------- ----- ----
RAYMOND PLANK Chairman of the Board and Chief August 8, 1995
--------------------------------------------- Executive Officer (Principal
Raymond Plank Executive Officer)
MARK A. JACKSON Vice President, Finance August 8, 1995
---------------------------------------------
Mark A. Jackson
R. KENT SAMUEL Controller and Chief Accounting August 8, 1995
--------------------------------------------- Officer (Principal Accounting
R. Kent Samuel Officer)
II-3
12
SIGNATURE TITLE DATE
--------- ----- ----
FREDERICK M. BOHEN Director August 8, 1995
---------------------------------------------
Frederick M. Bohen
VIRGIL B. DAY Director August 8, 1995
---------------------------------------------
Virgil B. Day
G. STEVEN FARRIS Director August 8, 1995
---------------------------------------------
G. Steven Farris
RANDOLPH M. FERLIC Director August 8, 1995
---------------------------------------------
Randolph M. Ferlic
EUGENE C. FIEDOREK Director August 8, 1995
---------------------------------------------
Eugene C. Fiedorek
W. BROOKS FIELDS Director August 8, 1995
---------------------------------------------
W. Brooks Fields
ROBERT V. GISSELBECK Director August 8, 1995
---------------------------------------------
Robert V. Gisselbeck
STANLEY K. HATHAWAY Director August 8, 1995
---------------------------------------------
Stanley K. Hathaway
JOHN A. KOCUR Director August 8, 1995
---------------------------------------------
John A. Kocur
JAY A. PRECOURT Director August 8, 1995
---------------------------------------------
Jay A. Precourt
JOSEPH A. RICE Director August 8, 1995
---------------------------------------------
Joseph A. Rice
II-4
13
EXHIBIT INDEX
EXHIBIT
NUMBER
----------
4.1 Restated Certificate of Incorporation of Apache Corporation (incorporated by
reference to Exhibit 3.1 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, Commission File No. 1-4300)
4.2* Bylaws of Apache Corporation as of July 31, 1995
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.4 to
Amendment No. 1 to Apache's Registration Statement on Form S-3, Registration No.
33-5097, filed with the Commission on May 16, 1986)
4.4 Rights Agreement dated as of January 10, 1986, between Apache Corporation and
First Trust Company, Inc., rights agent, relating to the declaration of Rights to
Apache's common stockholders of record on January 24, 1986 (incorporated by
reference to Exhibit 4.9 to Apache's Annual Report on Form 10-K for the fiscal
year ended December 31, 1985, Commission File No. 1-4300)
4.5 Indenture dated as of May 15, 1992, among Apache Corporation and Norwest Bank,
Minnesota, N.A. as trustee, relating to Apache's 9.25% Notes due 2002
(incorporated by reference to Exhibit 4.01 to Apache's Registration Statement on
Form S-3, Registration No. 33-47363, filed with the Commission on April 21, 1992)
4.6 Fiscal Agency Agreement dated as of January 4, 1995, between Apache Corporation
and Chemical Bank, as fiscal agent, relating to Apache's 6% Convertible
Subordinated Debentures due 2002 (incorporated by reference to Exhibit 99.2 to
Amendment No. 1 on Form 8-K/A to Apache's Current Report on Form 8-K dated
December 6, 1994, Commission File No. 1-4300)
5.1* Opinion of Mayor, Day, Caldwell & Keeton, L.L.P., as to legality of issuance of
Common Stock
23.1* Consent of Arthur Andersen LLP
23.2* Consent of Coopers & Lybrand, Chartered Accountants
23.3* Consent of Mayor, Day, Caldwell & Keeton, L.L.P. (included in Exhibit 5.1)
23.4* Consent of Ryder Scott, Petroleum Engineers
24.1* Power of Attorney (included as part of the signature pages in Part II)
---------------
* Filed herewith
EX-4.2
2
BYLAWS OF APACHE
1
BYLAWS
OF
APACHE CORPORATION
(AS OF JULY 13, 1995)
ARTICLE I.
NAME OF CORPORATION
The name of the corporation is Apache Corporation.
ARTICLE II.
OFFICES
SECTION 1. The principal office of the corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware, and the name of
its resident agent in charge thereof is The Corporation Trust Company.
SECTION 2. The corporation may have such other offices either within
or without the State of Delaware as the board of directors may designate or as
the business of the corporation may from time to time require.
ARTICLE III.
SEAL
The corporate seal shall have inscribed upon it the name of the
corporation and other designations as the board of directors from time to time
determine. There may be alternate seals of the corporation.
ARTICLE IV.
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders of the
corporation shall be held at the office of the corporation in the City of
Houston, Texas, or at any other place within or without the State of Delaware
that shall be stated in the notice of the meeting.
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SECTION 2. ANNUAL MEETINGS. The annual meeting of stockholders of the
corporation shall be held at the place and time within or without the State of
Delaware that may be designated by the board of directors, on the first
Thursday in May in each year if not a legal holiday, and if a legal holiday,
then at the same time on the next succeeding business day for the purpose of
electing directors and for the transaction of any other business that may
properly come before the meeting.
SECTION 3. SPECIAL MEETINGS OF THE STOCKHOLDERS. Special meetings of
the stockholders of the corporation, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the chairman of the board and
shall be called by the chairman of the board or secretary at the request in
writing of a majority of the board of directors. The request shall state the
purpose or purposes of the proposed meeting.
SECTION 4. NOTICE OF MEETING. Written or printed notice stating the
place, day and hour of the meeting and in the case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not
less than ten nor more than 50 days before the date of the meeting either
personally, by mail or other lawful means by or at the direction of the
chairman of the board or the secretary to each stockholder of record entitled
to vote at the meetings. If mailed, the notice shall be deemed to be delivered
when deposited in the United States Postal Service, addressed to the
stockholder at his address as it appears on the stock transfer books of the
corporation with postage thereon prepaid.
SECTION 5. CLOSING OF TRANSFER BOOKS FOR FIXING OF RECORD DATE. For
the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, the board of directors may
close the stock transfer books of the corporation for a period not exceeding 50
days preceding the date of any meeting of stockholders. In lieu of closing the
stock transfer books, the board of directors may fix in advance a date, not
exceeding 50 days preceding the date of any meeting of stockholders, as a
record date for the determination of the stockholders entitled to notice of and
to vote at the meeting and any adjournment thereof, and only the stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
the notice of and to vote at the meeting and any adjournment thereof.
SECTION 6. VOTING LISTS. The officer or agent having charge of the
stock transfer books for shares of the corporation shall prepare and make, at
least ten days before every meeting of the 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. The list shall be open to the examination of
any stockholder 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 election
is to be held and 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, and the
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and subject to the inspection of any stockholder who may be
present. Upon the willful neglect or refusal of the board of directors of
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the corporation to produce a list at any meeting of the stockholders at which
an election is to be held in accordance with this Section 6, they shall be
ineligible to hold any office at such election.
SECTION 7. VOTING RIGHTS. At each meeting of the stockholders of the
corporation, every stockholder having the right to vote thereat shall be
entitled to vote in person or by proxy, but no proxy shall be voted after three
years from its date unless the proxy provides for a longer period. Except as
otherwise provided by law or the Certificate of Incorporation, each stockholder
shall have one vote for each share of stock having voting power registered in
his name. The vote at an election for directors, and upon the demand of any
stockholder, the vote upon any question before a meeting of the stockholders,
shall be by written ballot. All elections shall be had and all questions
decided by a plurality vote except where by statute, by provision in the
Certificate of Incorporation or these bylaws it is otherwise provided.
Prior to any meeting, but subsequent to the date fixed by the board of
directors pursuant to Section 5 of Article IV of these bylaws, any proxy may
submit his proxy to the secretary for examination. The certificate of the
secretary as to the regularity of the proxy and as to the number of shares held
by the persons who severally and respectively executed such proxies shall be
received as prima facie evidence of the number of shares represented by the
holder of the proxy for the purpose of establishing the presence of a quorum at
the meeting and of organizing the same.
SECTION 8. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, initially present in person or
represented by proxy, shall be requisite, and shall constitute a quorum of all
meetings of the stockholders for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
bylaws. If, however, a majority shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or by proxy, shall have power to adjourn the meeting from time to
time, without notice, other than announcement at the meeting, until the
requisite amount of voting stock shall be present. At the adjourned meeting at
which the requisite amount of voting stock shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
notified.
SECTION 9. INSPECTORS. At each meeting of the stockholders, the polls
shall be opened and closed. The proxies and the ballots shall be received and
taken in charge and all questions touching the qualifications of voters and the
validity of proxies and the acceptance or rejection of votes shall be decided
by three inspectors. The inspectors shall be appointed by the board of
directors before or at the meeting, or if no appointment shall have been made,
then by the presiding officer at the meeting. If, for any reason any of the
inspectors previously appointed shall fail to attend or refuse or be unable to
serve, inspectors in place of any so failing to attend or refusing or unable to
serve shall be appointed in like manner.
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SECTION 10. WAIVER OF NOTICE. Whenever any notice whatever is
required to be given pursuant to the provisions of a statute, the Certificate
of Incorporation or these bylaws of the corporation, a waiver thereof in
writing signed by the person or persons entitled to the notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
SECTION 11. STOCKHOLDER ACTION. Any action required or permitted to
be taken by the stockholders must be effected at a duly called annual or
special meeting of stockholders and may not be effected by any consent in
writing by stockholders.
SECTION 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of
the stockholders, only business shall be conducted that has been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors, (b) otherwise
properly brought before the meeting by or at the direction of the board of
directors, or (c) otherwise properly brought before the meeting by a
stockholder, which stockholder must have given timely notice thereof in writing
to the secretary of the corporation. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of
the corporation, not less than 60 days nor more than 90 days prior to the
meeting; provided, however, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely, must be so received not
later than the close of business on the tenth day following the day on which
the notice of the date of the annual meeting was mailed or public disclosure
was made. A stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (w) a brief
description of the business desired to be brought before the annual meeting,
(x) the name and address, as they appear on the corporation's books, of the
stockholder proposing the business, (y) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and (z) any
material interest of the stockholder in the business. Notwithstanding anything
in these bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 12.
The chairman of an annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 12, and if he should
so determine, he shall so declare to the meeting and any business not properly
brought before the meeting shall not be transacted. This section sets forth
only the procedure by which business may be properly brought before an annual
meeting of stockholders and does not in any way grant additional rights to
stockholders beyond those currently afforded them by law.
SECTION 13. NOTICE OF STOCKHOLDER NOMINEES. Only persons who are
nominated in accordance with the procedures set forth in this Section 13 shall
be eligible for election as directors. Nominations of persons for election to
the board of directors of the corporation may be made at a meeting of
stockholders, by or at the direction of the board of directors or by any
stockholder of the corporation entitled to vote for the election of directors
at the meeting who complies with the notice procedures set forth in this
Section 13. Any nominations, other than those made by or at the direction of
the board of directors, shall be made pursuant to timely notice in writing to
the secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed
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and received at the principal executive offices of the corporation not less
than 60 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which the notice of the date of
the meeting was mailed or public disclosure was made. The stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of shares of the
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including without limitation the person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's books, of the stockholder and (ii)
the class and number of shares of the corporation which are beneficially owned
by the stockholder. At the request of the board of directors, any person
nominated by the board of directors for election as a director shall furnish to
the secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. 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 13. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded. This section
sets forth only the procedure by which nominations for directors may be made
and does not in any way grant additional rights to stockholders beyond those
currently afforded them by law.
ARTICLE V.
DIRECTORS
SECTION 1. GENERAL POWERS. The property, business and affairs of the
corporation shall be managed by its board of directors which may exercise all
powers of the corporation and do all lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The board of directors
shall consist of not less than seven nor more than 13 members. The directors
shall be elected in the manner set forth in Article Ninth of the Certificate of
Incorporation of the corporation. The term of office of directors shall be
three years except as provided in Article Ninth of the Certificate of
Incorporation of the corporation. Directors need not be stockholders or
residents of the State of Delaware.
SECTION 3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Any vacancies
on the board of directors or any newly created directorships shall be filled by
the board of directors in
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the manner set forth in Article Ninth of the Certificate of Incorporation of
the corporation. If the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any increase
therein), then upon application, any stockholder or stockholders holding at
least ten percent of the total number of shares of the capital stock of the
corporation at the time outstanding having the right to vote for directors may
require the board of directors to call a special meeting of the stockholders
for the purpose of electing directors to fill the vacancy or vacancies or newly
created directorships or to replace the director or directors chosen by the
directors then in office as aforesaid. The person or persons elected at a
special meeting of the stockholders shall serve as director or as directors
until the next annual meeting of stockholders and until their successors are
duly elected and qualified and shall displace any person or persons who may
theretofore have been appointed by the directors then in office as aforesaid.
SECTION 4. CATASTROPHE. During any emergency period following a
national catastrophe due to enemy attack, or act of God, a majority of the
surviving members of the board who have not been rendered incapable of acting
due to physical or mental incapacity or due to the difficulty of transportation
to the place of the meeting shall constitute a quorum for the purpose of
filling vacancies on the board of directors and among the elected and appointed
officers of the corporation.
SECTION 5. PLACE OF MEETINGS. The directors of the corporation may
hold their meetings, both regular and special, at a place or places within or
without the State of Delaware that the board of directors may from time to time
determine.
SECTION 6. FIRST MEETING. The first meeting of the board of directors
following the annual meeting of stockholders shall be held at the time and
place that shall be fixed by the chairman of the board and shall be called in
the same manner as a special meeting.
SECTION 7. REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice at the time and place that shall from time
to time be determined by the board of directors.
SECTION 8. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by the chairman of the board on three days notice to
each director, either personally or by mail, by telegram, or by facsimile or
other lawful means; special meetings of the board of directors shall be called
by the chairman of the board or secretary in like manner and upon like notice
upon the written request of two directors.
SECTION 9. QUORUM. At all meetings of the board of directors, a
majority of the directors shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting, at which there is a quorum present, shall be
the act of the board of directors, except as may be otherwise specifically
provided by statute, the Certificate of Incorporation or by these bylaws. If
at any meeting of the board of directors there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
without notice, other than by announcement at the meeting, until a sufficient
number of directors to constitute a
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quorum shall attend. At any adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
original meeting as originally notified.
SECTION 10. BUSINESS TO BE CONDUCTED. Unless otherwise indicated in
the notice, any and all business may be transacted at a regular or special
meeting of the board of directors. In the event a special meeting of the board
of directors is held without notice, any and all business may be transacted at
the meeting provided all directors are present.
SECTION 11. ORDER OF BUSINESS. At all meetings of the board of
directors, business shall be transacted in the order that from time to time the
board may determine by resolution. At all meetings of the board of directors
the chairman of the board or in his absence the vice chairman shall preside.
In the absence of the chairman and vice chairman of the board, the directors
present shall elect any director as chairman of the meeting.
SECTION 12. COMPENSATION OF DIRECTORS. Directors of the corporation
shall receive the compensation for their services that the board of directors
may from time to time determine and all directors shall be reimbursed for their
expenses of attendance at each regular or special meeting of the board or any
committee thereof.
SECTION 13. COMMITTEES. The board of directors may by resolution
passed by a majority of the board, in addition to the executive committee,
designate one or more committees, each committee to consist of two or more of
the directors of the corporation. Any committee, to the extent provided in the
resolution, shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may
require it. Any committee or committees shall have the name or names that may
be determined from time to time by resolution adopted by the board of
directors. The chairman of the board shall be an ex officio member of any
board committee except the audit committee and the management development and
compensation committee.
SECTION 14. EXECUTIVE COMMITTEE.
A. MEMBERS. The executive committee shall consist of not less than
four nor more than five members of the board of directors, as is fixed by the
board of directors, and shall include the chairman and vice chairman of the
board as ex officio members, together with the two or three members of the
board of directors, as may be the case, elected by the board of directors.
B. TERM OF OFFICE. Each of the elected members of the executive
committee shall be elected for a one year term and shall serve until his
successor shall have been duly elected and qualified.
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C. ELECTION. The election of members of the executive committee shall
be held each year at the first meeting of the board of directors following the
annual meeting of stockholders. Should a member of the executive committee for
any reason be unable to serve for the term to which he was elected, the vacancy
shall be filled by the board of directors at its next meeting following the
occurrence of such vacancy.
D. COMPENSATION. Each member of the executive committee shall receive
the compensation that the board of directors shall from time to time determine
and shall be reimbursed for their expenses of attendance at regular or special
meetings.
E. CHAIRMAN AND SECRETARY OF THE EXECUTIVE COMMITTEE. The chairman and
secretary of the executive committee shall be elected by members of the
executive committee.
F. MEETINGS. Regular meetings of the executive committee may be held
without call or notice of the time and place that the executive committee
determines. Special meetings of the executive committee may be called by any
member, either personally or by mail, by telegram, by facsimile or other lawful
means forwarded not later than 48 hours prior to the date and time set forth
for the meeting. Upon request of any member, the secretary of the corporation
shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the executive committee, three members
shall constitute a quorum. Any action of the executive committee to be
effective must be authorized by not less than three affirmative votes.
H. RULES. The executive committee shall fix its own rules of
procedure, provided the same do not contravene the provisions of the law, the
Certificate of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY.
(a) The executive committee is vested with the authority to exercise
the full power of the board of directors, within the policies
established by the board of directors to govern the conduct of the
business of the corporation, in the intervals between meetings of the
board of directors.
(b) The executive committee, in addition to the general authority
vested in it, may be vested with other specific powers and authority
by resolution of the board of directors.
J. REPORTS. All action by the executive committee shall be reported
to the board of directors at its meeting next succeeding the action, and shall
be subject to revision or alteration by the board of directors; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
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SECTION 15. AUDIT COMMITTEE.
A. MEMBERS. The audit committee shall consist of not less than three
nor more than five members of the board of directors, determined by the board
of directors, and shall include only outside directors of the corporation.
B. TERM OF OFFICE. Each of the elected members of the audit
committee shall be elected for a one year term and shall serve until a
successor shall have been duly elected and qualified.
C. ELECTION. The election of members of the audit committee shall be
held each year at the first meeting of the board of directors following the
annual meeting of stockholders. Should a member of the audit committee for any
reason be unable to serve for the term to which he was elected, the vacancy
shall be filled by the board of directors at its next meeting.
D. COMPENSATION. Each member of the audit committee shall receive
the compensation the board of directors determines and shall be reimbursed for
their expenses for attendance at regular or special meetings.
E. CHAIRMAN AND SECRETARY OF THE AUDIT COMMITTEE. The chairman and
secretary of the audit committee shall be elected by the members of the audit
committee.
F. MEETINGS. Regular meetings of the audit committee may be held
without call or notice of the time and place that the audit committee
determines. Special meetings of the audit committee may be called by any
member, either personally or by mail, by telegram, by facsimile or other lawful
means forwarded not later than 48 hours prior to the date and time set forth
for the meeting. Upon request of any member, the secretary of the corporation
shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the audit committee, a majority of
committee members shall constitute a quorum. Any action of the audit committee
to be effective must be authorized by the affirmative votes of a majority of
committee members.
H. RULES. The audit committee shall determine its own rules of
procedure, provided the rules do not contravene the provisions of the law, the
Certificate of Incorporation or these bylaws.
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I. AUTHORITY AND RESPONSIBILITY.
(a) The audit committee is vested with the authority to (i) review
with the independent and internal auditors of the corporation their
respective audit and review programs and procedures; (ii) review the
corporation's financial statements; (iii) review the adequacy of the
corporation's system of internal accounting controls and the scope and
results of internal audit engagements, special services provided by
them and related fees; and (iv) make recommendations to the board of
directors regarding the independence of the independent auditors and
their engagement or discharge.
(b) The audit committee, in addition to the authority vested in it
under subsection (a) above, may be vested with other specific powers
and authority by resolution of the board of directors.
J. REPORTS. All action by the audit committee shall be reported to
the board of directors at its next meeting, and shall be subject to revision or
alteration by the board of directors.
SECTION 16. MANAGEMENT DEVELOPMENT AND COMPENSATION COMMITTEE
A. MEMBERS. The management development and compensation committee
shall consist of not less than three nor more than five members of the board of
directors, determined by the board of directors, and shall include only outside
directors of the corporation.
B. TERM OF OFFICE. Each of the elected members of the management
development and compensation committee shall be elected for a one year term and
shall serve until a successor shall have been duly elected and qualified.
C. ELECTION. The election of members of the management development
and compensation committee shall be held each year at the first meeting of the
board of directors following the annual meeting of stockholders. Should a
member of the management development and compensation committee for any reason
be unable to serve for the term to which he was elected, the vacancy shall be
filled by the board of directors at its next meeting.
D. COMPENSATION. Each member of the management development and
compensation committee shall receive the compensation the board of directors
determines and shall be reimbursed for their expenses for attendance at regular
or special meetings.
E. CHAIRMAN AND SECRETARY OF THE MANAGEMENT DEVELOPMENT AND
COMPENSATION COMMITTEE. The chairman and secretary of the management
development and compensation committee shall be elected by the members of the
management development and compensation committee.
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F. MEETINGS. Regular meetings of the management development and
compensation committee may be held without call or notice of the time and place
that the management development and compensation committee determines. Special
meetings of the management development and compensation committee may be called
by any member, either personally or by mail, by telegram, by facsimile or other
lawful means forwarded not later than 48 hours prior to the date and time set
forth for the meeting. Upon request of any member, the secretary of the
corporation shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the management development and
compensation committee, a majority of committee members shall constitute a
quorum. Any action of the management development and compensation committee to
be effective must be authorized by the affirmative votes of a majority of
committee members.
H. RULES. The management development and compensation committee
shall determine its own rules of procedure, provided the rules do not
contravene the provisions of the law, the Certificate of Incorporation or these
bylaws.
I. AUTHORITY AND RESPONSIBILITY. The management development and
compensation committee has two principal responsibilities:
(a) to monitor the corporation's management resources, structure,
succession planning, development, and selection process, and the
performance of key executives; and
(b) to review and approve executive compensation and changes.
The management development and compensation committee also serves as
the committee administering the corporation's stock option plans and incentive
compensation plans.
J. REPORTS. All action by the management development and
compensation committee shall be reported to the board of directors at its next
meeting, and shall be subject to revision or alteration by the board of
directors.
SECTION 17. NOMINATING COMMITTEE.
A. MEMBERS. The nominating committee shall consist of not less than
three nor more than five members of the board of directors, determined by the
board of directors.
B. TERM OF OFFICE. Each of the elected members of the nominating
committee shall be elected for a one year term and shall serve until a
successor shall have been duly elected and qualified.
C. ELECTION. The election of members of the nominating committee
shall be held each year at the first meeting of the board of directors
following the annual meeting of stockholders. Should a
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member of the nominating committee for any reason be unable to serve for the
term to which he was elected, the vacancy shall be filled by the board of
directors at its next meeting.
D. COMPENSATION. Each member of the nominating committee shall
receive the compensation the board of directors determines and shall be
reimbursed for their expenses for attendance at regular or special meetings.
E. CHAIRMAN AND SECRETARY OF THE NOMINATING COMMITTEE. The chairman
and secretary of the nominating committee shall be elected by the members of
the nominating committee.
F. MEETINGS. Regular meetings of the nominating committee may be
held without call or notice of the time and place that the nominating committee
determines. Special meetings of the nominating committee may be called by any
member, either personally or by mail, by telegram, by facsimile or other lawful
means forwarded not later than 48 hours prior to the date and time set forth
for the meeting. Upon request of any member, the secretary of the corporation
shall give the required notice calling the meeting.
G. QUORUM. At any meeting of the nominating committee, a majority of
committee members shall constitute a quorum. Any action of the nominating
committee to be effective must be authorized by the affirmative votes of a
majority of committee members.
H. RULES. The nominating committee shall determine its own rules of
procedure, provided the rules do not contravene the provisions of the law, the
Certificate of Incorporation or these bylaws.
I. AUTHORITY AND RESPONSIBILITY.
(a) The nominating committee is vested with the authority and
responsibility to (i) recommend to the board of directors criteria for
selection of candidates to serve on the board of directors; (ii)
recommend to the board of directors candidates to fill any newly
created directorships or vacancies on the board of directors which
occur between annual meetings of stockholders; (iii) recommend
candidates for election to the committees of the board of directors;
(iv) periodically review, assess, and make recommendations to the
board of directors with regard to the size and composition of the
board of directors, and its evaluation of incumbent directors; (v)
cause the names of all director candidates that are approved by the
board of directors to be listed in the corporation's proxy materials
and support the election of all candidates so nominated by the board
of directors to the extent permitted by law; (vi) evaluate and
recommend to the board of directors potential candidates to serve in
the future on the board of directors to assure the continuity and
succession of the board of directors; and (vii) otherwise aid in
attracting qualified candidates to the board of directors.
(b) Only candidates recommended by the nominating committee shall be
eligible for nomination by the board of directors for election, or to
fill a vacancy or any newly created directorship, but
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if the board does not approve one or more of the candidates
recommended by the nominating committee, the nominating committee
shall submit a recommendation of other candidates. If for any reason
the nominating committee shall fail to act or determines not to make a
recommendation, the board of directors shall fill any vacancy or newly
created directorship in the manner that it deems appropriate.
(c) The nominating committee, in addition to the authority vested in
it under subsections (a) and (b) above, shall have all additional
powers necessary to carry out its responsibilities, and may be vested
with other specific powers and authority by resolution of the board of
directors.
J. REPORTS. All action by the nominating committee shall be reported
to the board of directors at its next meeting, and shall be subject to revision
or alteration by the board of directors.
K. RIGHTS OF STOCKHOLDERS. Nothing in this Section 17 shall affect
or restrict the right of any stockholder to nominate any person for election as
a director where such nomination is otherwise authorized by law and made in
accordance with Section 13 of Article IV of these bylaws.
SECTION 18. ELECTION OF OFFICERS. At the first meeting of the board
of directors in each year, at which a quorum shall be present, following the
annual meeting of the stockholders of the corporation, the board of directors
shall proceed to the election of the officers of the corporation.
SECTION 19. ACTION WITHOUT MEETING. 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 prior to the action a written
consent thereto is signed by all members of the board of directors or of the
committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the board of directors or committee.
SECTION 20. WAIVER OF NOTICE. Whenever any notice whatever is
required to be given pursuant to the provisions of a statute, the Certificate
of Incorporation or these bylaws of the corporation, a waiver thereof in
writing signed by the person or persons entitled to the notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.
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ARTICLE VI.
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a
chairman of the board, vice chairman of the board, president, one or more
executive vice presidents, one or more senior vice presidents, one or more vice
presidents, secretary, treasurer, controller and such assistant vice
presidents, assistant secretaries, assistant treasurers and assistant
controllers as the board of directors may provide for and elect. The chairman
of the board and the vice chairman of the board shall be members of the board
of directors. Any two or more offices may be held by the same person. The
board of directors may appoint such other officers as they shall deem
necessary, who shall have the authority and shall perform the duties that from
time to time may be prescribed by the board of directors. In its discretion,
the board of directors by a vote of a majority thereof may leave unfilled for
any period that it may fix by resolution any office except those of president,
treasurer and secretary.
SECTION 2. ELECTION. The board of directors at their first meeting
after each annual meeting of the stockholders or at any regular or special
meeting shall elect, as may be required, a chairman of the board, vice chairman
of the board, president, and one or more executive vice presidents, senior vice
presidents, vice presidents, a secretary, treasurer, controller, and assistant
vice presidents, assistant secretaries, assistant treasurers, and assistant
controllers.
SECTION 3. TENURE. The officers of the corporation elected by the
board of directors shall hold office for one year and until their successors
are chosen and qualify in their stead. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors.
SECTION 4. SALARIES. The salaries of the officers of the corporation
shall be recommended by the management development and compensation committee
and approved by the board of directors.
SECTION 5. VACANCIES. If the office of any officer of the corporation
becomes vacant by reason of death, resignation, disqualification or otherwise,
the directors by a majority vote, may choose his successor or successors.
SECTION 6. RESIGNATION. Any officer may resign his office at any
time, such resignation to be made in writing and take effect at the time of
receipt by the corporation, unless some time be fixed in the resignation and
then from that time. The acceptance of a resignation shall not be required to
make it effective.
SECTION 7. DELEGATION OF DUTIES. Duties of officers may be delegated
in case of the absence of any officer of the corporation or for any reason that
the board of directors may deem sufficient. The board of directors may
delegate the powers or duties of the officer to any other officer
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or to any director, except as otherwise provided by statute, for the time
being, provided a majority of the entire board of directors concurs therein.
SECTION 8. CHAIRMAN OF THE BOARD. The chairman of the board shall be
the chief executive officer and shall have, subject to the direction of the
board of directors, general control and management of the corporation's
business and affairs and shall see that all the policies and resolutions of the
board of directors are carried into effect, subject, however, to the right of
the board of directors to delegate any specific powers, except such as may be
by statute exclusively conferred on the president, to any other officer or
officers of the corporation. He shall preside at all meetings of stockholders
and the board of directors at which he may be present.
SECTION 9. VICE CHAIRMAN OF THE BOARD. The vice chairman shall
preside at all meetings of the board of directors and stockholders from which
the chairman of the board may be absent, and shall perform such other duties
that shall be specifically assigned to him from time to time by the board of
directors or the chairman of the board.
SECTION 10. PRESIDENT. The president shall be the chief operating
officer and shall perform those duties that shall be specifically assigned to
him from time to time by the board of directors. In the absence of the chief
executive officer or in the event of his death, inability or refusal to act,
the president shall perform the duties of the chief executive officer, and when
so acting shall have the powers of and be subject to all the restrictions upon
the chief executive officer.
SECTION 11. EXECUTIVE VICE PRESIDENTS, SENIOR VICE PRESIDENTS, AND
VICE PRESIDENTS. In the absence of the president or in the event of his death,
inability or refusal to act, the senior executive vice president present 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. In the
absence of the president and all executive or senior vice presidents, or in the
event of their deaths, inability or refusal to act, a vice president designated
by the board of directors, or in case the board of directors has failed to act,
designated by the chief executive officer, 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. The executive vice presidents, the senior
vice presidents, and all other vice presidents shall perform those duties
consistent with these bylaws and that may be specifically designated by the
president or by the board of directors.
SECTION 12. ASSISTANT VICE PRESIDENTS. The assistant vice presidents
shall perform those duties, not inconsistent with these bylaws, the Certificate
of Incorporation or statute and that may be specifically designated by the
board of directors or the president. In the absence of the executive vice
presidents, senior vice presidents, or vice presidents, an assistant vice
president (or in the event there be more than one assistant vice president, the
assistant vice presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order of their
election) shall perform the duties of the executive vice presidents, senior
vice presidents or vice presidents, and when so acting, shall have all the
powers of and be subject to all restrictions upon the executive vice
presidents, the senior vice presidents, and vice presidents.
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SECTION 13. SECRETARY. The secretary shall attend and keep all the
minutes of all meetings of the board of directors and all meetings of the
stockholders and, when requested by the board of directors, of any committees
of the board of directors. He shall give, or cause to be given, notice of all
meetings of the stockholders and board of directors and when so ordered by the
board of directors, shall affix the seal of the corporation thereto; he shall
have charge of all of those books and records that the board of directors may
direct, all of which shall, at all reasonable times, be open to the examination
of any director at the office of the corporation during business hours; he
shall, in general, perform all of the duties incident to the office of
secretary subject to the control of the board of directors or of the president,
under whose supervision he shall be, and shall do and perform any other duties
that may from time to time be assigned to him by the board of directors.
SECTION 14. ASSISTANT SECRETARIES. In the absence of the secretary or
in the event of his death, inability or refusal to act, the assistant secretary
(or in the event there be more than one assistant secretary, the assistant
secretaries in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) 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 and shall perform any
other duties that may from time to time be assigned to him by the board of
directors, the president or the secretary.
SECTION 15. TREASURER. The treasurer shall have custody of and be
responsible for all funds and securities of the corporation, receive and give
receipts for money due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in those
banks or depositories that shall be selected and designated by the board of
directors and shall in general perform all of the duties incident to the office
of treasurer and any other duties that may be assigned to him by the president
or by the board of directors. If required by the board of directors, the
treasurer shall give bond for the faithful discharge of his duties in the sum
and with the surety or sureties as the board of directors shall determine.
SECTION 16. ASSISTANT TREASURERS. In the absence of the treasurer or
in the event of his death, inability or refusal to act, the assistant treasurer
(or in the event there be more than one assistant treasurer, the assistant
treasurers in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the treasurer and when so acting shall have all the powers and be
subject to all the restrictions upon the treasurer, and shall perform any other
duties that from time to time may be assigned to him by the president,
treasurer or the board of directors. The assistant treasurers shall, if
required by the board of directors, give bonds for the faithful discharge of
their duties in the sums and with the surety or sureties that the board of
directors shall determine.
SECTION 17. CONTROLLER. The controller shall maintain adequate
records of all assets, liabilities and transactions of the corporation; see
that adequate audits thereof are currently and regularly made; and, in
conjunction with other officers and department heads, initiate and enforce
measures and procedures whereby the business of the corporation shall be
conducted with the
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maximum safety, efficiency and economy. Except as otherwise determined by the
board of directors, or lacking a determination by the board of directors, then
by the president, his duties and powers shall extend to all subsidiary
corporations and, so far as may be practicable, to all affiliate corporations.
He shall have any other powers and perform other duties that may be assigned to
him by the president or by the board of directors. If required by the board of
directors, the controller shall give bond for the faithful discharge of his
duties in the sum and with the surety or sureties as the board of directors
shall determine.
SECTION 18. ASSISTANT CONTROLLERS. In the absence of the controller
or in the event of his death, inability or refusal to act, the assistant
controller (or in the event there be more than one assistant controller, the
assistant controllers, in the order designated at the time of their election,
or in the absence of any designation, then in the order of their election)
shall perform the duties of the controller and when so acting shall have all
the powers and be subject to all the restrictions upon the controller, and
shall perform any other duties that from time to time may be assigned to him by
the president, controller or the board of directors. The assistant controllers
shall, if required by the board of directors, give bonds for the faithful
discharge of their duties in the sums and with the surety or sureties that the
board of directors shall determine.
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ARTICLE VII.
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS
SECTION 1. The board of directors shall indemnify any person (and that
person's heirs and personal representatives) who was or is a party or is
threatened or expected to be made a party to any threatened, pending or
completed action, suit, arbitration 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, partner or agent of another
corporation, partnership (including a partnership in which the corporation is a
partner), joint venture, trust or other enterprise, against expenses
(including, but not limited to, attorneys' fees, expert fees, bonds,
prospective or retroactive insurance premiums or costs, litigation, appeal and
court costs and out-of-pocket expenses of such person during any investigation
hearing, arbitration, trial, or appeal of any such action, suit or proceeding,
including any interest payable thereon), judgments, damages, arbitration
awards, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, arbitration or proceeding,
including any interest payable thereon, 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. The board of directors shall indemnify any person (and that
person's heirs and personal representatives) who was or is a party or is
threatened or expected 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, partner or agent
of another corporation, partnership (including a partnership in which the
corporation is a partner), joint venture, trust or other enterprise against
expenses (including, but not limited to, attorneys' fees, expert fees, bonds,
prospective or retroactive insurance premiums or costs, litigation, appeal and
court costs, and out-of-pocket expenses of such person during any
investigation, hearing, trial or appeal of any such action or suit, including
any interest payable thereon), 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 and 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 for negligence or misconduct in the performance
of his duty 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 the
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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. To the extent that a present or past director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, arbitration or proceeding referred to
in Sections 1 and 2, or in defense of claim, issue or matter therein, he shall
be indemnified against expenses (including, but not limited to, attorneys'
fees, expert fees, bonds, prospective or retroactive insurance premiums or
costs, litigation, appeal, and court costs, and out-of-pocket expenses of such
person during any investigation, hearing, arbitration, trial or appeal of any
such action, suit or proceeding) actually and reasonably incurred by him in
connection therewith, including any interest payable thereon.
SECTION 4. The board of directors shall cause the corporation to
advance to any person covered by Sections 1 or 2 the expenses (including, but
not limited to, attorneys' fees, expert fees, bonds, prospective or retroactive
insurance premiums or costs, litigation, appeal, and court costs and
out-of-pocket expenses, of such person during any investigation, hearing,
arbitration, trial or appeal of any such action, suit, arbitration or
proceeding) incurred by that person in defending a threatened, pending, or
completed civil, criminal, administrative, or investigative action suit,
arbitration, or proceeding, including any interest payable thereon, in advance
of the final disposition of such action, suit or proceeding.
SECTION 5. Any advance by the board of directors under Section 4 above
to any employee or agent who is not a present or past director or officer of
the corporation shall be conditional upon evidence of compliance with the terms
and conditions, if any, deemed appropriate and specified by the board of
directors for such advance if such employee or agent is determined ultimately
to be not legally entitled to indemnification from the corporation.
SECTION 6. Any advance authorized by the board of directors under
Section 4 above to a present or past officer or director shall be conditional
upon prior receipt by the corporation of a written undertaking from that
officer or director to repay such advance if he is determined ultimately to be
not legally entitled to indemnification from the corporation. Such undertaking
shall be in the form of a simple agreement by the officer or director to repay
advances made to him in the event that it is determined ultimately that he is
not legally entitled to indemnification by the corporation. Such undertaking
shall specifically state that no bond, collateral or other security shall be
required by the officer or director to insure its performance and that no
interest on any amount advanced shall be required to be paid to the corporation
if the officer or director is determined ultimately to be not legally entitled
to indemnification from the corporation.
SECTION 7. The board of directors, in its sole discretion, may
establish and may fund in advance and from time to time, in whole or in part, a
separate provision or provisions, which may be in the form of a trust fund,
periodic or advance retainers to counsel, or otherwise as the board of
directors may determine in each instance, to be used as payment and/or advances
of indemnification obligations
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under this Article VII to officers, directors, employees and agents of the
corporation; provided, however, that any amount which is contributed to such
fund shall not in any way be construed to be a limitation on the amount of
indemnification and/or advances of the corporation.
SECTION 8. The board of directors shall cause the corporation to pay
to any director, officer, employee or agent all expenses (including, but not
limited to, attorneys' fees, expert fees, bonds, prospective or retroactive
insurance premiums or costs, litigation, appeal, and court costs, and
out-of-pocket expenses of such person during any investigation, hearing,
arbitration, trial or appeal of any such action, suit, arbitration or
proceeding, including any interest payable thereon), which may be incurred by
such director, officer, employee or agent in enforcing his rights to
indemnification (as set forth herein in Sections 1, 2 and 3) and/or advances
(as set forth herein in Section 4) whether or not such director, officer,
employee or agent is successful in enforcing such rights and whether or not
suit or other proceedings are commenced.
SECTION 9. Any amendment to this Article VII shall only apply
prospectively and shall in no way affect the corporation's obligations to
indemnify and make advances to officers, directors, employees and agents as set
forth in this Article VII for actions or events which occurred before any such
amendment, and provided that any amendment to this Article VII shall require
affirmative vote of four-fifths of the entire board of directors.
SECTION 10. Any indemnification granted under the provisions of
Sections 1, 2, 3 and 8 above shall be subject to the provisions of subsections
(d), (e), (f) and (g) of Section 145 of the General Corporation Law of the
State of Delaware.
ARTICLE VIII.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any
officer or officers, agent or agents to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation. Such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loan shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name,
unless authorized by resolution of the board of directors. Such authority may
be general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other order or
other orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or
officers, agent or agents and in such manner that shall from time to time be
determined by resolution of the board of directors.
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SECTION 4. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in the bank or banks or other depositories that the board of directors may
elect.
ARTICLE IX.
VOTING OF STOCK OF OTHER CORPORATIONS
Unless otherwise ordered by the board of directors, the chairman of the
board shall have full power and authority on behalf of the corporation to act
and vote at any meeting of stockholders of any corporation in which the
corporation may hold stock, and at any such meeting, shall possess, and may
exercise, any and all of the rights and powers incident to the ownership of the
stock, which, as the owner thereof, the corporation might have possessed and
exercised if present. The board of directors by resolution from time to time,
may confer like powers upon any other person or persons.
ARTICLE X.
NOTICES
SECTION 1. FORM OF NOTICE. Whenever under the provisions of the
statutes, the Certificate of Incorporation, or these bylaws, notice is required
to be given to any director or stockholder, it shall not be construed to mean
personal notice, but the notice may be given in writing by mail, which shall
mean depositing same in a United States Postal Service post office or letter
box, in a postage paid, sealed envelope, addressed to the stockholder or
director at the address that appears on the books of the corporation or, in
default of other address, to such director or stockholder at the United States
Postal Service general post office in the City of Wilmington, Delaware, and the
notice shall be deemed to be given at the time when the same shall be thus
mailed or by any other means expressly provided for in these bylaws.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provision of the statutes, the Certificate of Incorporation or
these bylaws, a waiver thereof in writing signed by the person or persons
entitled to the notice whether before or after the time stated therein shall be
deemed equivalent thereto.
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ARTICLE XI.
STOCK CERTIFICATES
SECTION 1. CERTIFICATES FOR SHARES. The certificates for shares of
the capital stock of the corporation shall be in the form, not inconsistent
with the Certificate of Incorporation, that shall be approved by the board of
directors. The certificate shall be signed by the chairman of the board,
president or a vice president, and either the treasurer or an assistant
treasurer, or the secretary or an assistant secretary, but where the
certificate is signed by a transfer agent or an assistant transfer agent and a
registrar, the signatures of the chairman of the board, president, vice
president, treasurer, assistant treasurer, secretary or assistant secretary may
be facsimiles. All certificates shall be consecutively numbered, and the name
of the person owning the shares represented thereby, with the number of shares
and the date of issue shall be entered in the corporation's books. No
certificate shall be valid unless it is signed by the chairman of the board,
president, or a vice president, and either the treasurer or an assistant
treasurer, or the secretary or an assistant secretary, but where the
certificate is signed by a transfer agent or an assistant transfer agent and a
registrar, the signatures of the chairman of the board, president, vice
president, treasurer, assistant treasurer, secretary or assistant secretary may
be facsimiles. All certificates surrendered to the corporation shall be
canceled, and no new certificates shall be issued until the former certificate
for the same number of shares of the same class shall have been surrendered and
canceled.
SECTION 2. TRANSFER OF SHARES. Shares of the capital stock of the
corporation shall be transferred only on the books of the corporation by the
holder thereof in person or by his attorney upon surrender and cancellation of
certificates for the same number of shares.
SECTION 3. REGULATIONS. The board of directors shall have authority
to make any rules and regulations that they may deem expedient concerning the
issue, transfer and registration of certificates for shares of the capital
stock of the corporation. The board of directors may appoint one or more
transfer agents or assistant transfer agents and one or more registrars of
transfers and may require all certificates to bear the signature of the
transfer agent or assistant transfer agent and a registrar of transfers. The
board of directors may at any time terminate the appointment of any transfer
agent or any assistant transfer agent or any registrar of transfers by the vote
of a majority of the board of directors.
Page 22
23
SECTION 4. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS' RIGHTS. The
board of directors may close the stock transfer books of the corporation for a
period not exceeding 50 days preceding the date of any meeting of stockholders,
or the date for payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or for a period not exceeding 50 days in connection with
obtaining the consent of stockholders for any purpose. In lieu of closing the
stock transfer books as aforesaid, the board of directors may fix a date not
exceeding 50 days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change or conversion or exchange of capital stock shall go
into effect, or a date in connection with obtaining such consent, as a record
date for the determination of the stockholders entitled to notice of, and to
vote at, any meeting and any adjournment thereof, or entitled to receive
payment of any dividend, or to any allotment of rights, or to exercise the
rights in respect of any change, conversion or exchange of capital stock, or to
give such consent, and in such case the stockholders and only the stockholders
that shall be stockholders of record on the date so fixed shall be entitled to
the notice or to receive payment of the dividend, or to receive the allotment
of rights, or to exercise the rights or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any record date fixed as aforesaid.
SECTION 5. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim to or interest in the share or shares on the part of any other
person whether or not it shall have express or other notice thereof except as
otherwise provided by the laws of the State of Delaware.
SECTION 6. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact with the person
claiming the certificate of stock to be lost or destroyed. When authorizing
the issue of a new certificate or certificates, the board of directors may, in
its discretion and as a condition precedent to the issuance thereof, require
the owner of the lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in a manner that it shall require for
each share of stock having voting power registered in his name and to give the
corporation a bond in the sum that 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 or destroyed.
SECTION 7. DIVIDENDS. The board of directors may from time to time
declare, and the corporation may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and the
Certificate of Incorporation.
Page 23
24
SECTION 8. RESERVE FUNDS. Before payment of any dividend there may be
set aside out of any funds of the corporation available for dividends the sum
or sums that the board of directors may from time to time in their absolute
discretion think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for any other purpose that the directors shall think conducive
to the interest of the corporation and the board of directors may modify or
abolish the reserve in the manner in which it was created.
ARTICLE XII.
GENERAL PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall
begin on the first day of January in each year.
SECTION 2. INSPECTION OF BOOKS. The board of directors shall
determine from time to time whether, and if allowed, when and under what
conditions and regulations, the accounts and books of the corporation (except
as may be by statute specifically open to inspection) or any of them, shall be
open to the inspection of the stockholders, and a stockholder's rights in this
respect are, and shall be, restricted and limited accordingly.
SECTION 3. GENDER. The use of the masculine gender in these bylaws
shall be deemed to include the feminine gender.
ARTICLE XIII.
AMENDMENTS TO AND SUSPENSION OF BYLAWS
SECTION 1. AMENDMENTS. Subject to the provisions of Section 12 of
Article IV, these bylaws may be altered or repealed at any regular meeting of
the stockholders or at any special meeting of the stockholders at which a
quorum is present or represented, provided notice of the proposed alteration or
repeal be contained in the notice of the special meeting, by the affirmative
vote of a majority of the stockholders entitled to vote at the meeting and
present or represented thereat, or by the affirmative vote of a majority of the
board of directors at any regular meeting of the board of directors or at any
special meeting of the board of directors, if notice of the proposed alteration
or repeal be contained in the notice of the special meeting.
SECTION 2. SUSPENSION. Any provision of these bylaws may be suspended
by vote of two-thirds of the votes cast upon the motion to suspend except that
the suspension of the bylaw provision might be in contravention of any
provision of any statute or of the Certificate of Incorporation.
* * *
Page 24
EX-5.1
3
OPINION OF MAYOR, DAY
1
EXHIBIT 5.1
August 8, 1995
Apache Corporation
One Post Oak Central
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Ladies and Gentlemen:
We have acted as counsel for Apache Corporation, a Delaware corporation
(the "Company"), in connection with the filing of a Registration Statement on
Form S-4 under the Securities Act of 1933, as amended ("Registration
Statement"), for the registration by the Company of 2,000,000 shares (the
"Shares") of Common Stock, par value $1.25 per share, of the Company
("Common Stock"), which may be issued from time to time in connection with
the acquisition by the Company of interests in oil and gas properties. In
such capacity, we have familiarized ourselves with the Company's Certificate
of Incorporation, as amended and restated, and Bylaws of the Company, as
amended and restated, and have examined all statutes and other records,
instruments and documents pertaining to the Company that we have deemed
necessary to examine for the purposes of this opinion. With respect to the
issuance of any Shares, we have assumed that the Registration Statement
and any amendments thereto will have been declared effective, the Shares
will be issued in compliance with applicable federal and state securities
laws, the acquisitions will be of the type described in the Registration
Statement, the acquisitions and the issuance of Shares in such acquisitions
will have been duly authorized, and the certificates evidencing the
Shares will have been duly executed and delivered against receipt of the
consideration therefor approved by the Company.
Based upon our examination as aforesaid, we are of the opinion that (i)
the Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and (ii) the Shares upon
issuance will be duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name in the Registration Statement at each place in which it appears.
Sincerely,
MAYOR, DAY, CALDWELL & KEETON, L.L.P
EX-23.1
4
CONSENT OF ARTHUR ANDERSEN
1
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 14, 1995 on the audited Statement of Combined Revenues and Direct
Operating Expenses for the Oil and Gas Properties of Texaco Exploration and
Production Inc. sold to Apache Corporation and to the incorporation by
reference in this registration statement of our report dated May 17, 1995 on
the audited restated consolidated financial statements of Apache Corporation
and subsidiaries included in Apache Corporation's Annual Report on Form 10-K/A
for the year ended December 31, 1994, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
August 7, 1995
EX-23.2
5
CONSENT OF COOPERS & LYBRAND
1
EXHIBIT 23.2
CONSENT OF COOPERS & LYBRAND
We consent to the incorporation by reference in this registration
statement of Apache Corporation on Form S-4 of our report dated February 13,
1995 on our audits of the consolidated financial statements of DEKALB Energy
Company as of December 31, 1994 and 1993 and for the years ended December 31,
1994, 1993 and 1992 and our report dated February 13, 1995 on our audit of the
associated financial statement schedule of DEKALB Energy Company, which reports
are incorporated by reference herein. We also consent to all references to our
firm included in this registration statement of Apache Corporation on Form S-4.
COOPERS & LYBRAND
Chartered Accountants
Calgary, Alberta, Canada
August 7, 1995
EX-23.4
6
CONSENT OF RYDER SCOTT
1
EXHIBIT 23.4
[Letterhead of Ryder Scott Company]
As independent petroleum engineers, we hereby consent to the
incorporation by referenece in this registration statement of Apache
Corporation on Form S-4 to our Firm's review of the proved oil and gas reserve
quantities of Apache Corporation and of DEKALB Energy Company, as of January 1,
1995, and to all references to our Firm's name and review included in this
registration statement of Apache Corporation on Form S-4.
Ryder Scott Company
Petroleum Engineers
Houston, Texas
August 8, 1995