sv3asr
As filed with the Securities and
Exchange Commission on February 19, 2009
Registration Statement
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Noble Energy, Inc.
(Exact name of registrant as
specified in its charter)
|
|
|
Delaware
(State or other jurisdiction
of
incorporation or organization)
|
|
73-0785597
(I.R.S. Employer
Identification No.)
|
100 Glenborough Drive
Suite 100
Houston, Texas
77067-3610
(281) 872-3100
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Arnold J. Johnson
Senior Vice President, General
Counsel and Secretary
Noble Energy, Inc.
100 Glenborough Drive
Suite 100
Houston, Texas
77067-3610
(281) 872-3100
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copy to:
Joe Dannenmaier
Amy Curtis
Thompson & Knight
LLP
1722 Routh Street,
Suite 1500
Dallas, Texas 75201
(214) 969-1700
Approximate Date of Commencement of Proposed Sale to the
Public: From time to time after the effective
date of this registration statement, as determined by market
conditions and other factors.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional class of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check One):
|
|
|
|
Large
accelerated
filer þ
|
Accelerated
filer o
|
Non-accelerated
filer o
|
Smaller reporting company
o
|
(Do not check if a smaller
reporting company)
CALCULATION OF REGISTRATION
FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
Proposed Maximum
|
|
|
|
Title of Each Class of
|
|
|
Amounts to be
|
|
|
Offering
|
|
|
Aggregate
|
|
|
Amount of
|
Securities to be Registered
|
|
|
Registered(2)
|
|
|
Price Per Unit(2)
|
|
|
Offering Price(2)
|
|
|
Registration Fee(1)(2)
|
Debt Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock, $1.00 par value per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock,
$3.331/3
par value per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
In accordance with
Rules 456(b) and 457(r), the registrant is deferring
payment of all of the registration fee.
|
|
(2)
|
|
An indeterminate aggregate initial
offering price of securities of each class is being registered
as may from time to time be offered at indeterminate prices.
|
PROSPECTUS
Noble Energy, Inc.
Debt Securities
Preferred Stock
Common Stock
Warrants
We, Noble Energy, Inc., may offer from time to time our debt
securities, preferred stock, common stock and warrants. This
prospectus describes the general terms of these securities and
the general manner in which we will offer these securities. The
specific terms of any securities we offer will be included in a
supplement to this prospectus. The prospectus supplement will
also describe the specific manner in which we will offer the
securities. Any prospectus supplement may also add, update or
change information contained in this prospectus. You should read
this prospectus and the accompanying prospectus supplement
carefully before you make your investment decision.
Our common stock is listed on the New York Stock Exchange under
the trading symbol NBL.
Investing in our securities involves significant risks. You
should carefully read the risk factors included in the
applicable prospectus supplement and in our periodic reports and
other information filed with the Securities and Exchange
Commission before investing in our securities.
We may sell these securities to or through underwriters, to
other purchasers
and/or
through agents. The supplements to this prospectus will specify
the names of and arrangements with any underwriters or agents.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
This prospectus is dated February 19, 2009.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, which we
refer to as the SEC, using a shelf
registration process. Under this shelf registration process, we
may, over time, offer and sell any combination of the securities
described in this prospectus in one or more offerings. This
prospectus provides you with a general description of the
securities that we may offer. Each time we offer securities, we
will provide one or more prospectus supplements that will
contain specific information about the terms of that offering. A
prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the
additional information described under the heading Where
You Can Find More Information below. You should rely only
on the information included or incorporated by reference in this
prospectus and the applicable prospectus supplement. We have not
authorized anyone else to provide you with different
information. We are not making an offer to sell in any
jurisdiction in which the offer is not permitted. You should not
assume that the information in this prospectus, any prospectus
supplement or any other document incorporated by reference in
this prospectus is accurate as of any date other than the dates
of the applicable documents in which such information appears.
Unless the context requires otherwise or unless otherwise noted,
all references in this prospectus or any prospectus supplement
to Noble Energy and to the company,
we, us or our are to Noble
Energy, Inc. and its subsidiaries.
WHERE YOU
CAN FIND MORE INFORMATION
Each time we offer to sell securities, we will provide a
prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this
prospectus. This prospectus, together with the applicable
prospectus supplement, will include or refer you to all material
information relating to each offering.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC (File
No. 001-07964).
Our SEC filings are available to the public over the Internet at
the SECs website at
http://www.sec.gov
and at our web site at
http://www.nobleenergyinc.com.
You may also read and copy at prescribed rates any document we
file at the SECs public reference room at
100 F Street, N.E., Washington, D.C. 20549. You
may obtain information on the operation of the SECs public
reference room by calling the SEC at
1-800-SEC-0330.
Our common stock is listed on the New York Stock Exchange under
the symbol NBL. Our reports, proxy statements and
other information may be read and copied at the New York Stock
Exchange at 20 Broad Street, 7th Floor, New York, New
York 10005.
The SEC allows us to incorporate by reference the
information that we file with them, which means that we can
disclose important information to you by referring you to other
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We incorporate by reference the following documents
and all documents that we subsequently file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(other than, in each case, information furnished rather than
filed):
|
|
|
|
|
our annual report on
Form 10-K
for the year ended December 31, 2008;
|
|
|
|
our current report on
Form 8-K,
filed with the SEC on February 2, 2009; and
|
|
|
|
the description of our common stock set forth in our
registration statements filed pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
|
You may request a copy of these filings (other than an exhibit
to a filing unless that exhibit is specifically incorporated by
reference into that filing), at no cost, by writing to us at the
following address or calling the following number:
Noble Energy, Inc.
100 Glenborough Drive
Suite 100
Houston, Texas 77067
(281) 872-3100
Attention: Arnold J. Johnson
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference in
this prospectus contain forward-looking statements within the
meaning of the federal securities laws. Forward-looking
statements give our current expectations or forecasts of future
events. These forward-looking statements include, among others,
the following:
|
|
|
|
|
our growth strategies;
|
|
|
|
our ability to successfully and economically explore for and
develop crude oil and natural gas resources;
|
|
|
|
anticipated trends in our business;
|
|
|
|
our future results of operations;
|
|
|
|
our liquidity and ability to finance our acquisition,
exploration and development activities;
|
|
|
|
our outlook on global economic conditions and markets;
|
|
|
|
market conditions in the oil and gas industry;
|
|
|
|
our ability to make and integrate acquisitions; and
|
|
|
|
the impact of governmental regulation.
|
Forward-looking statements are typically identified by use of
terms such as may, will,
expect, anticipate, estimate
and similar words, although some forward-looking statements may
be expressed differently. These forward-looking statements are
made based on managements current plans, expectations,
estimates, assumptions and beliefs concerning future events
impacting us and therefore involve a number of risks and
uncertainties. We caution that forward-looking statements are
not guarantees and that actual results
2
could differ materially from those expressed or implied in the
forward-looking statements. You should consider carefully the
statements under Item 1A. Risk Factors and other sections
of our annual report on
Form 10-K
for the year ended December 31, 2008, which describe
factors that could cause our actual results to differ from those
set forth in the forward-looking statements.
ABOUT
US
Noble Energy, Inc. is a Delaware corporation, formed in 1969,
that has been publicly traded on the New York Stock Exchange
since 1980. We are an independent energy company that has been
engaged in the acquisition, exploration, development, production
and marketing of crude oil, natural gas and natural gas liquids
since 1932. We operate primarily in the Rocky Mountains, the
Mid-continent and deepwater Gulf of Mexico areas in the US, with
key international operations offshore Israel, the North Sea and
West Africa.
Our principal corporate office is located at 100 Glenborough
Drive, Suite 100, Houston, Texas
77067-3610,
and our telephone number is
(281) 872-3100.
We maintain a website on the Internet at
http://www.nobleenergyinc.com.
Information that you may find on our website is not part of this
prospectus.
RISK
FACTORS
You should carefully consider all of the information included
and incorporated by reference into this prospectus, including
the risk factors and other information appearing under the
headings Item 1A. Risk Factors and Item 7.
Managements Discussion and Analysis of Financial Condition
and Results of Operations contained in our annual report on
Form 10-K
for the fiscal year ended December 31, 2008 before
investing in our securities. You should also consider similar
information contained in any other document filed by us with the
SEC after the date of this prospectus before deciding to invest
in our securities.
USE OF
PROCEEDS
Unless specified otherwise in an accompanying prospectus
supplement, we expect to use the net proceeds we receive from
the sale of the securities offered by this prospectus and the
applicable accompanying prospectus supplement for general
corporate purposes.
RATIO OF
EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth our ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred
stock dividends for the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
Ratio of earnings to fixed charges(1)
|
|
|
20.0
|
|
|
|
11.2
|
|
|
|
8.3
|
|
|
|
10.4
|
|
|
|
8.7
|
|
|
|
|
(1) |
|
The ratio of earnings to fixed charges and preferred stock
dividends is the same as the ratio of earnings to fixed charges
for the periods presented because no shares of preferred stock
were outstanding during these periods. |
Our ratios of earnings to fixed charges and earnings to combined
fixed charges and preferred stock dividends were computed based
on:
|
|
|
|
|
earnings, which consist of earnings from
continuing operations before income taxes, less income from
equity investees, less interest capitalized, plus distributed
income from equity investees and fixed charges as defined;
|
|
|
|
fixed charges, which consist of interest
expensed, interest capitalized, preferred stock dividend
requirements of consolidated subsidiaries and an estimate of
interest within rental expense; and
|
|
|
|
preferred stock dividends, which consist of
the amount of pre-tax earnings required to pay the dividends on
outstanding preferred stock.
|
3
DESCRIPTION
OF DEBT SECURITIES
We may from time to time issue debt securities (referred to
herein as the debt securities) under an indenture to
be entered into between us and Wells Fargo Bank, National
Association, as trustee, the form of which is filed as an
exhibit to the registration statement of which this prospectus
forms a part. References to the indenture in this
description mean such indenture as amended or supplemented from
time to time.
The following description of the debt securities sets forth
certain general terms and provisions of the debt securities to
which this prospectus and any prospectus supplement may relate.
The particular terms of any series of debt securities and the
extent to which the general provisions may apply to a particular
series of debt securities will be described in a prospectus
supplement relating to that series.
This description is intended to be an overview of the material
provisions of the debt securities and the indenture. This
summary is not complete and is qualified in its entirety by
reference to the indenture as it, and not this description,
defines your rights as a holder of the debt securities. A copy
of the indenture may be obtained from us upon request.
Unless the context otherwise requires, reference under this
Description of Debt Securities to we,
us, and our are to Noble Energy, Inc.
and not to any of our consolidated subsidiaries.
The indenture will not limit the amount of debt securities we
may issue under it, and will provide that additional debt
securities of any series may be issued up to the aggregate
principal amount that we authorize from time to time. Unless
otherwise indicated in the applicable prospectus supplement, we
will issue the debt securities in denominations of $1,000 or
integral multiples of $1,000.
General
The debt securities may be issued from time to time as provided
in this prospectus. When the debt securities are offered, a
prospectus supplement will explain the particular terms of the
debt securities to the extent they are not set forth in or vary
from the terms set forth in this prospectus, and in particular,
will include the following information about the debt securities
offered:
|
|
|
|
|
the designation, initial principal amount and authorized
denominations of debt securities offered;
|
|
|
|
the interest rate borne by the debt securities, which may be
fixed or variable, or the method of determining the rate or
rates at which the debt securities will bear interest;
|
|
|
|
the interest payment dates and related record dates;
|
|
|
|
the maturity date;
|
|
|
|
whether the debt securities will be issued as registered
securities, bearer securities or a combination of the two;
|
|
|
|
whether the debt securities will be issued in the form of one or
more global securities and whether such global securities will
be issued in a temporary global form or permanent global form;
|
|
|
|
the currency or currencies in which debt securities are
denominated, may be purchased, and may be paid (including
payments of principal, any premium or interest);
|
|
|
|
whether the currency or currencies for which debt securities may
be purchased or in which principal and any premium or interest
may be paid is at our election or at the election of a
purchaser, the manner in which an election may be made and its
terms;
|
|
|
|
a description of any provisions providing for redemption,
exchange or conversion of the debt securities at our option, at
the option of the holder or otherwise, and the terms and
provisions of such a redemption, exchange or conversion;
|
|
|
|
information with respect to book-entry procedures relating to
global debt securities;
|
|
|
|
any sinking fund terms;
|
4
|
|
|
|
|
any modifications or additions to, the provisions of the
indenture relating to satisfaction and discharge in respect of
the debt securities;
|
|
|
|
any index or other method used to determine the amount of
payments of principal of and any premium and interest on the
debt securities;
|
|
|
|
any changes in or additions to the terms related to the debt
securities described herein, including changes in or additions
to covenants, events of default or any other provision described
herein; and
|
|
|
|
any other information relevant to the terms of the debt
securities so offered.
|
Except as may be described in the applicable prospectus
supplement, the indenture will not limit our ability to incur
indebtedness or afford holders of debt securities protection in
the event of a decline in our credit quality or if we are
involved in a takeover, recapitalization or highly leveraged or
similar transaction. The prospectus supplement relating to the
particular series of debt securities, to the extent not
otherwise described in this prospectus, will include any
information with respect to any deletions from, modifications of
or additions to the covenants or events of default described
below and contained in the indenture, including any addition of
a covenant or other provision providing event risk or similar
protection.
Ranking
The debt securities rank senior in priority to any subordinated
unsecured indebtedness and pari passu with any of our other
senior unsecured indebtedness. The debt securities are junior in
right of payment to all of our secured obligations (insofar as
the assets securing such obligations are concerned) and will be
effectively subordinated in right of payment to the creditors
and preferred equity holders of our subsidiaries upon the
liquidation or reorganization of those subsidiaries. At
December 31, 2008, we had no outstanding secured
indebtedness. Also, at December 31, 2008, our subsidiaries
had outstanding trade payables and liabilities in the ordinary
course of business, but had no outstanding indebtedness for
borrowed money or preferred equity, to which the debt securities
would be effectively subordinated.
The indenture does not limit the amount of indebtedness that we
may incur.
Interest
Rates and Discounts
The debt securities will earn interest at a fixed or floating
rate or rates for the period or periods of time specified in the
applicable prospectus supplement. Unless otherwise specified in
the applicable prospectus supplement, interest payments on debt
securities that bear interest at a fixed rate will be computed
on the basis of a
360-day year
consisting of twelve
30-day
months.
We may sell debt securities at a substantial discount below
their stated principal amount, bearing no interest or interest
at a rate that at the time of issuance is below market rates. We
will describe the federal income tax consequences and special
considerations that apply to those debt securities in the
applicable prospectus supplement.
Exchange,
Registration and Transfer
Unless otherwise specified, debt securities of any series will
be exchangeable for other debt securities of the same series and
of like aggregate principal amount and tenor in different
authorized denominations.
You may present debt securities for registration of transfer,
together with a duly executed form of transfer, at the office of
the security registrar or at the office of any transfer agent
designated by us for that purpose with respect to any series of
debt securities and referred to in the applicable prospectus
supplement. This may be done without service charge but upon
payment of any taxes and other governmental charges as described
in the indenture. The security registrar or the transfer agent
will effect the transfer or exchange upon being
5
satisfied with the documents of title and identity of the person
making the request. We may at any time designate additional
transfer agents with respect to any series of debt securities.
In the event of any redemption, we will not be required to:
|
|
|
|
|
execute, register the transfer of or exchange debt securities of
any series during a period of 15 days immediately preceding
the day of the mailing of a relevant notice of redemption of
debt securities of a series; or
|
|
|
|
execute, register the transfer of or exchange any debt security,
or portion thereof, called for redemption, except the unredeemed
portion of any debt security being redeemed in part.
|
Payment
and Paying Agents
Unless we specify otherwise in the applicable prospectus
supplement, we will pay the principal of, and any premium and
interest on, debt securities at the office of the paying agent
or paying agents that we designate at various times. Unless we
specify otherwise in the applicable prospectus supplement, the
Corporate Trust Office of the trustee and the
trustees New York office will be designated as our sole
paying agents for payments with respect to debt securities that
are issuable solely as registered securities.
All monies we pay to a paying agent for the payment of principal
of, and any premium and interest on, any debt security that
remains unclaimed at the end of two years after becoming due and
payable will be repaid to us. After that time, the holder of the
debt security will look only to us for payments out of those
repaid amounts.
Defaults
and Remedies
The indenture provides that each of the following is an Event of
Default with respect to the debt securities of a series issued
under the indenture:
(1) our failure to pay the principal of or premium, if any,
on the debt securities of that series when due;
(2) our failure to pay any interest due on the debt
securities of that series and the default continues for
30 days;
(3) our failure to make any required sinking fund payment
when due with respect to the debt securities of that series;
(4) our failure for 60 days after written notice to us
as specified in the indenture to comply with any of our other
covenants in the indenture for the benefit of that series;
(5) default by us under any instrument or other evidence of
indebtedness for money borrowed, or any guarantee of payment by
us for money borrowed if the effect of such default is to cause
an acceleration of the principal amount of such indebtedness and
the aggregate amount of such indebtedness or guarantees is in
excess of five percent of Consolidated Net Tangible Assets (as
defined below under Certain Covenants
Applicable to the Debt Securities Certain
Definitions), unless the default has been cured or waived;
and
(6) certain events of bankruptcy, insolvency or
reorganization relating to us.
If an Event of Default, other than an Event of Default specified
in clause (6) above, with respect to the outstanding debt
securities of a series occurs and is continuing, either the
trustee or holders of at least 25 percent in aggregate
principal amount of the debt securities of such series then
outstanding may declare the principal amount of all debt
securities of such series and all accrued interest thereon to be
due and payable immediately. However, at any time after a
declaration of acceleration has been made, but before a judgment
or decree for payment of money has been obtained by the trustee,
the holders of a majority in aggregate principal amount of such
series of debt securities may cause such declaration of
acceleration to be rescinded and annulled with respect to the
debt securities of that series if we deposit with the trustee an
amount sufficient to pay all overdue interest on the debt
securities of that series (including, if lawful, interest on the
overdue interest), the principal of and premium, if any, on the
debt securities of that series that have become due and
6
payable otherwise than by such declaration of acceleration and
all amounts due to the trustee and if all other Events of
Default with respect to the debt securities of that series,
other than the nonpayment of the principal of the debt
securities of that series, which have become due solely by such
declaration of acceleration, have been cured or waived. If an
Event of Default specified in clause (6) above occurs, the
principal amount of all the debt securities and all accrued
interest thereon will automatically become due and payable.
Unless the Event of Default has been cured or waived, the
trustee must transmit notice of the Event of Default to the
holders of the debt securities of that series. However, except
in the case of a payment default, the trustee may withhold the
notice, if and so long as the board of directors, the executive
committee or a trust committee of directors or responsible
officers of the trustee has in good faith determined that the
withholding of the notice is in the interest of the holders of
debt securities of that series.
You will not be able to enforce the indenture except as provided
in the indenture but nothing shall prevent holders of the debt
securities from enforcing payment of the principal of or
premium, if any, or interest on their debt securities. The
trustee may refuse to enforce the indenture unless it receives
reasonable security or indemnity. Subject to certain
limitations, holders of a majority in principal amount of the
debt securities of a series under the indenture may direct the
trustee in its exercise of any trust or power under that
indenture with respect to the debt securities of that series.
We will furnish the trustee annually with an officers
certificate with respect to compliance with the terms of the
indenture.
Modification
and Waiver
We and the trustee may, without the consent of holders, modify
or waive provisions of the indenture for certain purposes,
including, among other things, curing ambiguities and
maintaining the qualification of the indenture under the
Trust Indenture Act. We and the trustee may modify or waive
certain provisions of the indenture with the consent of the
holders of not less than a majority in aggregate principal
amount of the debt securities of each series issued under the
indenture affected by the modification or waiver. However, the
provisions of the indenture may not be waived or modified
without the consent of the holders of each debt security
affected thereby if the modification or waiver would:
|
|
|
|
|
change the stated maturity of the principal of, or any
installment of principal of or interest on, the debt security;
|
|
|
|
reduce the principal amount of, or interest rate on, the debt
security, or change the method of calculating the interest rate
on, or reduce any premium payable upon the redemption of, the
debt security;
|
|
|
|
change the coin or currency (or other property) in which the
debt security or any premium or any interest on the debt
security is payable;
|
|
|
|
impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of the debt security or,
in the case of redemption, on or after the redemption date;
|
|
|
|
reduce the percentage in principal amount of the outstanding
debt securities of a series, the holders of which are required
to consent under the indenture in order to take certain
actions; or
|
|
|
|
modify certain of the provisions of the indenture relating to
modifying the indenture, waiving certain covenants and waiving
past defaults, respectively.
|
The holders of at least a majority in aggregate principal amount
of outstanding debt securities of any series issued under the
indenture may, on behalf of the holders of all debt securities
of that series, waive our compliance with certain restrictive
provisions of the indenture. The holders of not less than a
majority in aggregate principal amount of debt securities of any
series issued under the indenture may, on behalf of all holders
of debt securities of that series, waive any past default and
its consequences under the indenture with respect to the debt
securities of that series, except:
|
|
|
|
|
a payment default with respect to debt securities of that
series; or
|
7
|
|
|
|
|
a default of a covenant or provision of the indenture that
cannot be modified or amended without the consent of the holder
of each outstanding debt security of that series.
|
Consolidation,
Merger and Sale of Assets
We may not consolidate with or merge into, or convey, transfer
or lease our properties and assets substantially as an entirety
to, any person unless:
|
|
|
|
|
the person formed by the consolidation or into which we are
merged, or the person which acquires by conveyance or transfer,
or which leases, substantially all of our properties and assets:
|
|
|
|
|
|
is organized and validly existing under the laws of the United
States, any state, or the District of Columbia; and
|
|
|
|
expressly assumes our obligations on the debt securities and
under the indenture;
|
|
|
|
|
|
immediately after the transaction becomes effective, no event of
default, and no event that would become an event of default,
will have occurred and be continuing; and
|
|
|
|
we deliver to the trustee an officers certificate and
opinion of counsel as provided in the indenture.
|
Defeasance
Subject to compliance with certain conditions, we may discharge
our indebtedness and our obligations or certain of our
obligations under the indenture by depositing funds or
obligations issued or guaranteed by the United States of America
with the trustee.
Defeasance and Discharge. The indenture
provides that we will be discharged from any and all obligations
in respect of the debt securities being defeased, other than our
obligations relating to:
|
|
|
|
|
the registration of transfer or exchange of the debt securities;
|
|
|
|
the replacement of stolen, lost or mutilated debt securities; and
|
|
|
|
the maintenance of paying agencies to hold monies for payment in
trust;
|
if we deposit with the trustee, in trust, money
and/or
U.S. government obligations that, through the payment of
interest and principal on the amounts deposited, will provide
money in an amount sufficient to pay the principal of and each
installment of interest on the debt securities on the stated
maturity date in accordance with the terms of the indenture and
the debt securities. We may establish the trust only if, among
other things, we have delivered to the trustee an opinion of
counsel confirming that:
|
|
|
|
|
we have received from, or there has been published by, the
Internal Revenue Service a ruling; or
|
|
|
|
since the date of the indenture there has been a change in the
applicable federal income tax law;
|
in either case to the effect that holders of the debt securities
will not recognize income, gain or loss for federal income tax
purposes as a result of the deposit, defeasance and discharge,
and will be subject to federal income tax on the same amounts
and in the same manner and at the same times as would have been
the case if the deposit, defeasance and discharge had not
occurred. In the event of any defeasance and discharge of the
debt securities, you will be entitled to look only to the trust
fund for payment of principal of and any premium and interest on
your debt securities until maturity.
Defeasance of Certain Obligations. The
indenture provides that we may omit to comply with certain
restrictive covenants, including the covenants described under
Certain Covenants Applicable to the Debt
Securities below and that the omission will not be an
Event of Default with respect to the debt securities. This right
is commonly known as covenant defeasance, and, in order to
exercise it, we will be required to deposit with the trustee, in
trust, money
and/or
U.S. government obligations that, through the payment of
interest and principal on the amounts deposited, would provide
enough money to pay the principal of and each installment of
interest on the debt securities on the stated maturity date in
accordance with the terms of the
8
indenture and the debt securities. If we were to exercise our
rights in this manner, our other obligations under the indenture
and the debt securities would remain in full force and effect.
We may effect a covenant defeasance only if, among other things,
we have delivered to the trustee an opinion of counsel to the
effect that holders of the debt securities will not recognize
income, gain or loss for federal income tax purposes as a result
of the covenant defeasance, and will be subject to federal
income tax on the same amounts and in the same manner and at the
same times as would have been the case if the covenant
defeasance had not occurred.
Certain
Covenants Applicable to the Debt Securities
We will be subject to the covenant set forth below as well as to
any other covenants that may be specified in an applicable
prospectus supplement. Please refer to the definitions provided
below regarding certain capitalized terms used in this section.
Limitations on Liens. The indenture provides
that if we incur, assume or guarantee a Debt secured by a
Mortgage either on any Mineral Interest or on a Restricted
Subsidiarys stock or Debt, we will secure the debt
securities on at least an equal basis. These restrictions do not
apply to Debt secured by the following:
(1) Mortgages in existence on the date of the indenture;
(2) Mortgages affecting Mineral Interests, shares of
capital stock or Debt of an entity existing at the time it
becomes a subsidiary or at the time it is merged into or
consolidated with us or a subsidiary, or on any shares of
capital stock or Debt of any Restricted Subsidiary at the time
its becomes a Restricted Subsidiary;
(3) Mortgages on property existing when we acquire the
property, or Mortgages on any property that we or any Restricted
Subsidiary acquires after the date of the indenture that are
created or assumed to secure the payment of all or any part of
the purchase price of the property or to secure any Debt
incurred prior to, at the time of, or within 180 days after
the acquisition of the property for the purpose of financing all
or any part of its purchase price;
(4) Mortgages on property constructed or improved after the
date of the indenture by us or any Restricted Subsidiary that
are created or assumed to secure the payment of all or any part
of the cost of the construction or improvement, provided,
however, that any Mortgage of this kind shall not apply to any
property owned by us or any Restricted Subsidiary prior to the
date of the indenture;
(5) Mortgages on our property or the property of a
Restricted Subsidiary to secure the payment of all or any part
of the costs incurred after the date of the indenture of
exploration, drilling, mining or development of the property
(which is understood to include servicing, treating, processing,
converting, transporting, storage and marketing of Hydrocarbons
from the property) for the purposes of increasing the production
and sale of oil, gas and other minerals, or any Debt incurred to
provide funds for all or any of those purposes;
(6) Mortgages that secure only Debt of a Restricted
Subsidiary owed to us or to another Restricted Subsidiary;
(7) Mortgages in favor of the United States or any state or
governmental instrumentality thereof securing payments pursuant
to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the
purchase price or cost of constructing or improving the property
subject to the Mortgages; and
(8) any extension, renewal or replacement, in whole or in
part, of any of the Mortgages referred to in the foregoing
clauses (1) through (7), inclusive, or of any Debt secured
by those Mortgages.
Notwithstanding the foregoing, we or a Restricted Subsidiary may
issue, assume or guarantee Debt secured by a Mortgage on any
Mineral Interest or on a Restricted Subsidiarys stock or
Debt if such Debt, when added to the sum of all other Debt that
would otherwise be restricted by the foregoing (but not
including Debt permitted under items (1) through
(8) above), does not at any time exceed ten percent of the
sum of our Consolidated Net Tangible Assets.
9
The following transactions shall not be deemed to create Debt
secured by a Mortgage:
(1) the sale or other transfer of oil, gas, or other
minerals in place for a period of time until, or in an amount
such that, the transferee will realize therefrom a specified
amount of money, however determined, or a specified amount of
oil, gas, or other minerals, or the sale or other transfer of
any other interest in property of the character commonly
referred to as an oil, gas, or other mineral payment or a
production payment, and including, in any case, overriding
royalty interests, net profit interests, reversionary interests
and carried interests and other similar burdens on
production; and
(2) the sale or other transfer by us or any of our
Restricted Subsidiaries of properties to a partnership, joint
venture or other entity whereby we or the Restricted Subsidiary
would retain partial ownership of the properties.
Certain
Definitions
The indenture contains definitions of certain terms used in the
indenture, including the following:
Consolidated Net Tangible Assets means the total
amount of all assets included in the consolidated balance sheet
of us and our Restricted Subsidiaries, prepared in accordance
with generally accepted accounting principles (and as of a date
not more than 90 days prior to the date as of which
Consolidated Net Tangible Assets are to be determined), less the
sum of:
(1) all current liabilities;
(2) all depreciation, depletion, valuation and other
reserves;
(3) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles;
(4) investments in and advances to subsidiaries that are
not Restricted Subsidiaries; and
(5) minority interests in the equity of Restricted
Subsidiaries.
Debt means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
Hydrocarbons means oil, gas and other liquid or
gaseous hydrocarbons.
Mineral Interests means our leasehold and other
interests or those of a Restricted Subsidiary in or under oil,
gas or other Hydrocarbon fee interests, overriding royalty and
royalty interests and any other interest in Hydrocarbons in
place wherever located and classified by our Board of Directors
as capable of producing Hydrocarbons by us or a Restricted
Subsidiary, except any interest that in the opinion of our Board
of Directors is not of material importance to the total business
conducted by us and our Restricted Subsidiaries.
Mortgage means any mortgage, pledge, lien, security
interest, conditional sale, or other title retention agreement
or other similar encumbrance.
Restricted Subsidiary means any subsidiary of ours
the assets of which comprise in excess of 15 percent of our
total consolidated assets included in the latest audited
consolidated balance sheet contained in the latest annual report
sent to our shareholders. As of December 31, 2008, we had
no subsidiary that would qualify as a Restricted Subsidiary.
Governing
Law
The debt securities and the indenture are governed by the laws
of the State of New York.
The
Trustee
Wells Fargo Bank, National Association will be the trustee under
the indenture. The indenture and provisions of the
Trust Indenture Act of 1939, as amended, incorporated by
reference therein contain limitations on the right of the
trustee, should it become one of our creditors, to obtain
payment of claims in certain cases or to realize on certain
property received by it in respect of any claim as security or
otherwise.
10
The trustee may be removed with respect to a series of debt
securities by the holders of a majority in principal amount of
the outstanding debt securities of such series. In addition, if
no Event of Default has occurred and is continuing, we may at
any time appoint a successor trustee, in which case, the
original trustee will be deemed to have resigned.
Book-Entry,
Delivery and Form
The debt securities of a series may be issued in the form of one
or more registered global securities that will be deposited
with, or on behalf of, The Depository Trust Company, New
York, New York, as Depositary. Unless and until it is exchanged
in whole or in part for debt securities in certificated form, a
global security may not be transferred except as a whole to a
nominee of DTC, or by a nominee of DTC to DTC or another nominee
of DTC, or by DTC or any such nominee to a successor Depositary
or a nominee of such successor Depositary. Initially, the debt
securities will be registered in the name of Cede &
Co., the nominee of DTC.
Ownership of beneficial interests in a global security will be
limited to persons who have accounts with DTC or its nominee
(participants) or persons who hold interests through
participants. Ownership of beneficial interests in a global
security will be shown on, and the transfer of these beneficial
ownership interests will be effected only through, records
maintained by DTC or its nominee (with respect to interests of
participants) and the records of participants (with respect to
interests of persons held by such participants on their behalf).
So long as DTC, or its nominee, is the registered holder of a
global security, DTC or such nominee, as the case may be, will
be considered the sole owner or holder of the debt securities
represented by such global security for all purposes under the
indenture and the debt securities. In addition, no beneficial
owner of an interest in a global security will be able to
transfer that interest except in accordance with the applicable
procedures of DTC.
Payments on a global security will be made to DTC or its
nominee, as the holder thereof. We have been advised by DTC that
upon receipt of any payment in respect of a global security
representing any debt securities held by it or its nominee, DTC
will immediately credit participants accounts with
payments in amounts proportionate to their respective beneficial
ownership interests in the principal amount of such global
security for the debt securities as shown on the records of DTC
or its nominee. We also expect that payments by participants
will be governed by standing instructions and customary
practices, as is now the case with securities held for the
accounts of customers registered in the names of nominees for
the customers. Payments by participants will be the
responsibility of those participants only. Neither we, the
trustee or any of our agents or the trustee shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial interests
in a global security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
Transfers between participants in DTC will be effected in the
ordinary way in accordance with DTC rules. The laws of some
states require that certain persons take physical delivery of
securities in definitive form. Consequently, the ability to
transfer beneficial ownership interests in a global security to
such persons may be limited. Because DTC can only act on behalf
of direct participants, who in turn act on behalf of indirect
participants and certain banks, the ability of a person having a
beneficial ownership interest in a global security to pledge
such interest to persons that do not participate in the DTC
system, or otherwise take actions in respect of such interest,
may be affected by the lack of a physical certificate of such
interest.
DTC has advised us as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a
banking organization within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a
clearing corporation within the meaning of the New
York Uniform Commercial Code and a clearing agency
registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. DTC holds
securities that its participants deposit with DTC and
facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in
participants accounts, thereby eliminating the need for
physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations. Access to the DTC system is also
11
available to others such as securities brokers and dealers,
banks and trust companies that clear through or maintain a
custodial relationship with a direct participant. The rules
applicable to DTC and its participants are on file with the
Securities and Exchange Commission.
Redemption notices will be sent to DTC. If less than all of the
debt securities are being redeemed, DTCs practice is to
reduce by lot the amount of the interest of each direct
participant in the debt securities to be redeemed.
Although DTC is expected to follow the foregoing procedures in
order to facilitate transfers of interests in a global security
among participants of DTC, it is under no obligation to perform
or continue to perform such procedures, and such procedures may
be discontinued at any time. Neither we, the trustee nor any
paying agent will have any responsibility for the performance by
DTC or the participants or indirect participants of their
respective obligations under the rules and procedures governing
their operations.
The debt securities represented by a global security will be
exchangeable for debt securities in certificated form of like
tenor as such global security in denominations of $1,000 and in
any greater amount that is an integral multiple if (i) DTC
notifies us that it is unwilling or unable to continue as
Depositary for such global security or if at any time DTC is
ineligible under the Securities Exchange Act of 1934 and a
successor Depositary is not appointed by us within 90 days
or (ii) we in our discretion at any time determine not to
require all of the debt securities to be represented by a global
security and notify the trustee thereof. Any debt securities
that are exchangeable pursuant to the preceding sentence are
exchangeable for certificated debt securities issuable in
authorized denominations and registered in such names as DTC
shall direct. Subject to the foregoing, a global security is not
exchangeable for certificated debt securities.
Neither we, the trustee nor any paying agent will be liable for
any delay by DTC or its nominee in identifying the beneficial
owners of the related debt securities, and we and the trustee
may conclusively rely on, and will be protected in relying on,
instructions from DTC or its nominee for all purposes (including
with respect to the registration and delivery, and the
respective principal amounts, of the debt securities to be
issued).
12
DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists of:
|
|
|
|
|
250 million shares of common stock, par value
$3.331/3
per share, and
|
|
|
|
4 million shares of preferred stock, par value $1.00 per
share.
|
As of February 6, 2009, we had approximately
191,646,428 shares of common stock issued and
172,913,730 shares of common stock outstanding and had
reserved 3,362,113 additional shares of common stock for
issuance under our various stock and compensation incentive
plans. We had no shares of preferred stock outstanding at that
date.
The following summary is not complete. You should refer to the
applicable provisions of our certificate of incorporation,
including the certificates of designations pursuant to which any
outstanding series of preferred stock may be issued, and the
Delaware General Corporation Law for a complete statement of the
terms and rights of the preferred stock and common stock.
Common
Stock
Dividends
Holders of common stock are entitled to receive dividends when,
as and if declared by the Board of Directors, out of funds
legally available for their payment (subject to the rights of
holders of the preferred stock, if any).
Voting
Rights
Each holder of common stock is entitled to one vote per share.
Subject to the rights, if any, of the holder of any series of
preferred stock pursuant to applicable law or the provisions of
the certificate of designations creating that series, all voting
rights are vested in the holders of shares of common stock.
Rights
Upon Liquidation
In the event of our voluntary or involuntary liquidation,
dissolution or winding up, the holders of common stock will be
entitled to share equally in any of our assets available for
distribution after the payment in full of all debts and
distributions and after the holders of all series of outstanding
preferred stock, if any, have received their liquidation
preferences in full.
Miscellaneous
The issued and outstanding shares of common stock are fully paid
and nonassessable. Holders of shares of common stock are not
entitled to preemptive rights. Shares of common stock are not
convertible into shares of any other class of capital stock. The
approval of 75% of our outstanding voting stock is required for
a merger or consolidation or the sale of all or substantially
all of our assets.
Preferred
Stock
Our certificate of incorporation authorizes our Board of
Directors to cause preferred stock to be issued in one or more
series, without stockholder action.
The Board of Directors is authorized to determine the number of
shares of each series, and the rights, preference and
limitations of each series. We may amend our certificate of
incorporation to increase the number of authorized shares of
preferred stock in a manner permitted by the certificate of
incorporation and the Delaware General Corporation Law.
13
The particular terms of any series of preferred stock being
offered by us under this shelf registration will be described in
the prospectus supplement relating to that series of preferred
stock. Those terms may include:
(1) The number of shares of the series of preferred stock
being offered;
(2) Voting rights, if any, of the series of preferred stock;
(3) The title and liquidation preference per share of that
series of the preferred stock;
(4) The purchase price of the preferred stock;
(5) The dividend rate (or method for determining dividend
rates);
(6) The dates on which dividends will be paid;
(7) Whether dividends on that series of preferred stock
will be cumulative or noncumulative and, if cumulative, the
dates from which dividends will begin to accumulate;
(8) Any redemption or sinking fund provisions applicable to
that series of preferred stock;
(9) Any conversion provisions applicable to that series of
preferred stock; and
(10) Any additional dividend, liquidation, redemption,
sinking fund and other rights and restrictions applicable to
that series of preferred stock.
If the terms of any series of preferred stock being offered
differ from the terms set forth in this prospectus, we will
describe those terms in the prospectus supplement relating to
that series of preferred stock. The following summary is not
complete. You should refer to the certificate of designations
relating to the series of the preferred stock for the complete
terms of that preferred stock. We will file that certificate of
designations with the SEC promptly after the offering of the
preferred stock.
The preferred stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the prospectus
supplement, if we liquidate, dissolve or
wind-up our
business, each series of preferred stock will have the same rank
as to dividends and distributions as each other series of the
preferred stock we may issue in the future. The preferred stock
will have no preemptive rights.
Dividend
Rights
Holders of preferred stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors,
cash dividends at the rates and on the dates set forth in the
prospectus supplement. Dividend rates may be fixed or variable
or both. Different series of preferred stock may be entitled to
dividends at different dividend rates or based upon different
methods of determination. Each dividend will be payable to the
holders of record as they appear on our stock books on record
dates determined by the Board of Directors.
Dividends on any series of the preferred stock may be cumulative
or noncumulative, as specified in the prospectus supplement. If
the Board of Directors fails to declare a dividend on any series
of preferred stock for which dividends are noncumulative, then
the right to receive that dividend will be lost, and we will
have no obligation to pay the dividend for that dividend period,
whether or not dividends are declared for any future dividend
period.
We may not declare or pay any full dividends on any series of
preferred stock, unless we have declared and paid, or
contemporaneously declare and pay, full dividends for the
dividend period commencing after the immediately preceding
dividend payment date (and cumulative dividends still owing, if
any) on all other series of preferred stock that have the same
rank as, or rank senior to, that preferred stock. When we do not
pay those dividends in full, we will declare dividends pro rata,
so that the amount of dividends declared per share on that
series of preferred stock and on each other series of preferred
stock having the same rank as, or ranking senior to, that series
of preferred stock will in all cases bear to each other the same
ratio that accrued dividends per share on that series of
preferred stock and the other preferred stock bear to each
other. In addition, we generally may not declare or pay any
dividends on our common stock or redeem or purchase any common
stock, unless we have paid full dividends, including cumulative
dividends still owing, if any, on all
14
outstanding shares of any series of preferred stock. We will not
pay any interest, or sum of money in lieu of interest, in
connection with any dividend payment or payments that may be in
arrears.
Unless otherwise described in the prospectus supplement, we will
compute the amount of dividends payable for each dividend period
by annualizing the applicable dividend rate and dividing by the
number of dividend periods in a year, except that we will
compute the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period on the
basis of a
360-day year
consisting of twelve
30-day
months and, for any period less than a full month, the actual
number of days elapsed in the period.
Rights
Upon Liquidation
If we liquidate, dissolve or
wind-up our
affairs, either voluntarily or involuntarily, the holders of
each series of preferred stock will be entitled to receive
liquidating distributions in the amount set forth in the
prospectus supplement relating to that series of preferred
stock, plus an amount equal to accrued and unpaid dividends, if
any, before any distribution of assets is made to the holders of
common stock. If the amounts payable with respect to preferred
stock of any series and any stock having the same rank as that
series of preferred stock are not paid in full, the holders of
preferred stock and of the other stock will share ratably in any
distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After the
holders of each series of preferred stock and any stock having
the same rank as the preferred stock are paid in full, they will
have no right or claim to any of our remaining assets. Neither
the sale of all or substantially all our property or business
nor a merger or consolidation by us with any other corporation
will be considered a dissolution, liquidation or winding up of
our business or affairs.
Redemption
A series of preferred stock may be redeemable, in whole or in
part, at our option. In addition, any series of preferred stock
may be subject to mandatory redemption pursuant to a sinking
fund. Any redemption provisions that apply to a series of
preferred stock, including the redemption dates and the
redemption prices for that series, will be set forth in the
prospectus supplement.
If a series of preferred stock is subject to mandatory
redemption, the prospectus supplement will specify the year we
can begin to redeem shares of the preferred stock, the number of
shares of the preferred stock we can redeem each year, and the
redemption price per share. We may pay the redemption price in
cash, stock or in cash that we have received specifically from
the sale of our capital stock, as specified in the prospectus
supplement. If the redemption price is to be paid only from the
proceeds of the sale of our capital stock, the terms of the
series of preferred stock may also provide that, if no capital
stock is sold or if the amount of cash received is insufficient
to pay in full the redemption price then due, the series of
preferred stock will automatically be converted into shares of
the applicable capital stock pursuant to conversion provisions
specified in the prospectus supplement.
If fewer than all the outstanding shares of any series of
preferred stock are to be redeemed, whether by mandatory or
optional redemption, the Board of Directors will determine the
method for selecting the shares to be redeemed, which may be by
lot or pro rata or by any other method determined to be
equitable. From and after the redemption date, dividends will
cease to accrue on the shares of preferred stock called for
redemption and all rights of the holders of those shares (except
the right to receive the redemption price) will cease.
If we have not paid full dividends, including accrued but unpaid
dividends, if any, on any series of preferred stock, we may not
redeem that series in part and we may not purchase or acquire
any shares of that series of preferred stock, except by any
offer made on the same terms to all holders of that series of
preferred stock.
Voting
Rights
Except as indicated in this prospectus or in a prospectus
supplement, or except as expressly required by applicable law,
the holders of preferred stock will not be entitled to vote.
15
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of debt securities,
preferred stock or common stock. We may issue warrants
independently or together with other securities. We will issue
each series of warrants under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant
agent. You should refer to the warrant agreement relating to the
specific warrants being offered for the complete terms of the
warrant agreement and the warrants.
Each warrant will entitle the holder to purchase the principal
amount of debt securities, or the number of shares of preferred
stock or common stock, at the exercise price set forth in, or
calculable as set forth in, the prospectus supplement. The
exercise price may be subject to adjustment upon the occurrence
of certain events, as set forth in the prospectus supplement.
After the close of business on the expiration date of the
warrant, unexercised warrants will become void. The place or
places where, and the manner in which, warrants may be exercised
will be specified in the prospectus supplement.
16
PLAN OF
DISTRIBUTION
We may sell the securities through agents, underwriters or
dealers, or directly to one or more purchasers without using
underwriters or agents.
We may designate agents who agree to use their reasonable
efforts to solicit purchases for the period of their appointment
or to sell securities on a continuing basis.
If we use underwriters for a sale of securities, the
underwriters will acquire the securities for their own accounts.
The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in
the applicable underwriting agreement. The underwriters will be
obligated to purchase all the securities offered if any of those
securities are purchased. Any initial public offering price and
any discounts or concessions allowed or re-allowed or paid to
dealers will be described in the applicable prospectus
supplement and may be changed from time to time.
Underwriters, dealers and agents that participate in the
distribution of the securities may be underwriters as defined in
the Securities Act of 1933, or the Securities Act,
and any discounts or commissions they receive from us and any
profit on their resale of the securities may be treated as
underwriting discounts and commissions under the Securities Act.
The applicable prospectus supplement will identify any
underwriters, dealers or agents and will describe their
compensation. We may have agreements with the underwriters,
dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with
or perform services for us or our subsidiaries in the ordinary
course of their businesses.
Unless otherwise specified in the applicable prospectus
supplement, each class or series of securities will be a new
issue with no established trading market, other than the common
stock, which is listed on the New York Stock Exchange. We may
elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that
one or more underwriters may make a market in a class or series
of securities, but the underwriters will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the
trading market for any of the securities.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities offered under this
prospectus will be passed upon for us by Thompson &
Knight LLP. Additional legal matters may be passed on for us, or
any underwriters, dealers or agents, by counsel we will name in
the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Noble Energy, Inc. and
subsidiaries as of December 31, 2008 and 2007, and for each
of the years in the three-year period ended December 31,
2008, and managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2008, have been incorporated by reference
herein in reliance upon the reports of KPMG LLP, independent
registered public accounting firm, and, with respect to the
consolidated financial statements, PricewaterhouseCoopers LLP,
independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firms as
experts in accounting and auditing. The audit report on the
consolidated financial statements refers to the changes in the
method of accounting for defined benefit pension and other post
retirement plans in 2006.
The financial statements of Alba Plant LLC as of
December 31, 2008 and 2007 and for each of the three years
in the period ended December 31, 2008 (not separately
presented in the Annual Report on Form
10-K of
Noble Energy, Inc. for the year ended December 31, 2008
(Form
10-K)
and therefore not incorporated by reference herein) have been
audited by PricewaterhouseCoopers LLP, an independent registered
public
17
accounting firm, whose report thereon has been incorporated in
this prospectus by reference to the Form
10-K and has
been so incorporated in reliance on the report of such
independent registered public accounting firm given on the
authority of said firm as experts in auditing and accounting.
Our estimates of proved reserves associated with our interests
in oil and gas properties is confirmed in the audit letter of
Netherland, Sewell & Associates, Inc., an independent
petroleum consulting firm, and has been included in this
document, and incorporated by reference into this document, upon
the authority of said firm as experts with respect to the
matters covered by such audit letter and in giving such audit
letter.
18
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The following are estimates of expenses to be paid by Noble
Energy, Inc.:
|
|
|
|
|
SEC Registration Fee
|
|
$
|
*
|
|
Fees and Expenses of Legal Counsel
|
|
$
|
100,000
|
|
Accounting Fees and Expenses
|
|
$
|
94,000
|
|
Trustees Fees and Expenses
|
|
$
|
20,000
|
|
Printing and Engraving Expenses
|
|
$
|
10,000
|
|
Miscellaneous
|
|
$
|
10,000
|
|
|
|
|
|
|
Total
|
|
$
|
234,000
|
|
|
|
|
|
|
|
|
|
* |
|
In accordance with Rules 456(b) and 457(r), the registrant
is deferring payment of all of the registration fee. |
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Article VI of our bylaws, as amended, provides for
indemnification of officers and directors of Noble Energy, Inc.,
as well as its employees if desired, to the extent authorized by
the Delaware General Corporation Law. Pursuant to
Section 145 of the DGCL, we generally have the power to
indemnify our current and former directors, officers, employees
and agents against expenses and liabilities that they incur in
connection with any suit to which they are, or are threatened to
be made, a party by reason of their serving in such positions so
long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, our best interests, and
with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The statute
expressly provides that the power to indemnify or advance
expenses authorized thereby is not exclusive of any rights
granted under any charter provision, bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise, both as
to actions in such persons official capacity and as to
action in another capacity while holding such office. We also
have the power to purchase and maintain insurance for such
directors and officers.
We have also entered into individual indemnification agreements
with our directors and executive officers. These agreements
indemnify those directors and officers to the fullest extent
permitted by law against inordinate risks of claims and actions
against them arising out of their service to and activities on
behalf of Noble Energy.
In reviewing the agreements included as exhibits to this
registration statement, please remember they are included to
provide you with information regarding their terms and are not
intended to provide any other factual or disclosure information
about us or the other parties to the agreements.
The agreements contain representations and warranties by each of
the parties to the applicable agreement. These representations
and warranties have been made solely for the benefit of the
other parties to the applicable agreement and:
|
|
|
|
|
should not in all instances be treated as categorical statements
of fact, but rather as a way of allocating the risk to one of
the parties if those statements prove to be inaccurate;
|
|
|
|
may have been qualified by disclosures that were made to the
other party in connection with the negotiation of the applicable
agreement, which disclosures are not necessarily reflected in
the agreement;
|
II-1
|
|
|
|
|
may apply standards of materiality in a way that is different
from what may be viewed as material to you or other
investors; and
|
|
|
|
were made only as of the date of the applicable agreement or
such other date or dates as may be specified in the agreement
and are subject to more recent developments.
|
Accordingly, these representations and warranties may not
describe the actual state of affairs as of the date they were
made or at any other time. Additional information about us may
be found elsewhere in this registration statement and our other
public filings, which are available without charge through the
SECs website at
http://www.sec.gov.
See Where You Can Find More Information.
The following documents are filed as exhibits to this
registration statement:
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1**
|
|
Form of Purchase Agreement.
|
|
3
|
.1
|
|
Certificate of Incorporation, as amended through May 16,
2005, of the Registrant as currently in effect (filed as Exhibit
3.1 to the Registrants Annual Report on Form
10-K for the
year ended December 31, 2008 and incorporated herein by
reference).
|
|
3
|
.2
|
|
Composite copy of Bylaws of the Registrant as currently in
effect (filed as Exhibit 3.1 to the Registrants Current
Report on Form
8-K (Date of
Event: January 29, 2002) dated February 8, 2002 and
incorporated herein by reference).
|
|
4
|
.1*
|
|
Form of Indenture to be entered into with respect to the debt
securities.
|
|
4
|
.2**
|
|
Form of Senior Note.
|
|
4
|
.3**
|
|
Form of Warrant Agreement.
|
|
4
|
.4**
|
|
Form of Certificate of Designations for Preferred Stock.
|
|
5
|
.1*
|
|
Opinion of Thompson & Knight LLP regarding the common
stock, preferred stock, debt securities and warrants.
|
|
12
|
.1*
|
|
Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.
|
|
23
|
.1*
|
|
Consent of Independent Registered Public Accounting
Firm KPMG LLP.
|
|
23
|
.2*
|
|
Consent of Independent Registered Public Accounting
Firm PricewaterhouseCoopers LLP.
|
|
23
|
.3*
|
|
Consent of Thompson & Knight LLP (included in
Exhibit 5.1 hereto).
|
|
23
|
.4*
|
|
Consent of Netherland, Sewell & Associates, Inc.
|
|
24
|
.1*
|
|
Power of Attorney (included in Part II as a part of the
signature page of the Registration Statement).
|
|
25
|
.1*
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Wells Fargo Bank, National
Association.
|
|
|
|
* |
|
Filed herewith. |
|
** |
|
To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with the issuance
of the securities. |
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if
II-2
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) do not apply if information required to be included
in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately before such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned
II-3
registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933 each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by either registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Houston, State of Texas, on February 19, 2009.
NOBLE ENERGY, INC.
|
|
|
|
By:
|
/s/ CHARLES
D. DAVIDSON
|
Charles D. Davidson
Chairman of the Board, President
and Chief Executive Officer
POWER OF
ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Charles D. Davidson, Chris Tong and Arnold J. Johnson,
and each of them, any of whom may act without joinder of the
others, his or her lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments to this registration
statement, including any and all post-effective amendments, and
to file the same with all exhibits thereto and other documents
necessary or advisable in connection therewith, with the
Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on
Form S-3
has been signed by the following persons in the capacities
indicated below on February 19, 2009.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ CHARLES
D. DAVIDSON
Charles
D. Davidson
|
|
Chairman of the Board, Director, President and Chief Executive
Officer (Principal Executive Officer)
|
|
|
|
/s/ CHRIS
TONG
Chris
Tong
|
|
Senior Vice President, Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ FREDERICK
B. BRUNING
Frederick
B. Bruning
|
|
Vice President, Chief Accounting Officer
(Principal Accounting Officer)
|
|
|
|
/s/ JEFFREY
L. BERENSON
Jeffrey
L. Berenson
|
|
Director
|
|
|
|
/s/ MICHAEL
A. CAWLEY
Michael
A. Cawley
|
|
Director
|
|
|
|
/s/ EDWARD
F. COX
Edward
F. Cox
|
|
Director
|
II-5
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ THOMAS
J. EDELMAN
Thomas
J. Edelman
|
|
Director
|
|
|
|
/s/ ERIC
P. GRUBMAN
Eric
P. Grubman
|
|
Director
|
|
|
|
/s/ KIRBY
L. HEDRICK
Kirby
L. Hedrick
|
|
Director
|
|
|
|
/s/ SCOTT
D. URBAN
Scott
D. Urban
|
|
Director
|
|
|
|
/s/ WILLIAM
T. VAN KLEEF
William
T. Van Kleef
|
|
Director
|
II-6
INDEX TO
EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1**
|
|
Form of Purchase Agreement.
|
|
3
|
.1
|
|
Certificate of Incorporation, as amended through May 16, 2005,
of the Registrant as currently in effect (filed as Exhibit 3.1
to the Registrants Annual Report on Form 10-K for the year
ended December 31, 2008 and incorporated herein by reference).
|
|
3
|
.2
|
|
Composite copy of Bylaws of the Registrant as currently in
effect (filed as Exhibit 3.1 to the Registrants Current
Report on Form 8-K (Date of Event: January 29, 2002) dated
February 8, 2002 and incorporated herein by reference).
|
|
4
|
.1*
|
|
Form of Indenture to be entered into with respect to the debt
securities.
|
|
4
|
.2**
|
|
Form of Senior Note.
|
|
4
|
.3**
|
|
Form of Warrant Agreement.
|
|
4
|
.4**
|
|
Form of Certificate of Designations for Preferred Stock.
|
|
5
|
.1*
|
|
Opinion of Thompson & Knight LLP regarding the common
stock, preferred stock, debt securities and warrants.
|
|
12
|
.1*
|
|
Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Fixed Charges and Preferred Stock Dividends.
|
|
23
|
.1*
|
|
Consent of Independent Registered Public Accounting
Firm KPMG LLP.
|
|
23
|
.2*
|
|
Consent of Independent Registered Public Accounting
Firm PricewaterhouseCoopers LLP.
|
|
23
|
.3*
|
|
Consent of Thompson & Knight LLP (included in
Exhibit 5.1 hereto).
|
|
23
|
.4*
|
|
Consent of Netherland, Sewell & Associates, Inc.
|
|
24
|
.1*
|
|
Power of Attorney (included in Part II as a part of the
signature page of the Registration Statement).
|
|
25
|
.1*
|
|
Form T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Wells Fargo Bank, National
Association.
|
|
|
|
* |
|
Filed herewith. |
|
** |
|
To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with the issuance
of the securities. |