Underwriting
We are offering the shares of common stock described in this prospectus through a number of underwriters. J.P. Morgan Securities LLC is acting as sole
book-running
manager of the offering and as representative of the underwriters. We have entered into an underwriting agreement with the underwriters. Subject to the terms and conditions of the underwriting agreement, we have agreed to sell to the
underwriters, and each underwriter has severally agreed to purchase, at the public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the number of shares of common stock listed next to its
name in the following table:
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Name
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Number of
shares
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J.P. Morgan Securities LLC
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10,125,000
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Deutsche Bank Securities Inc.
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1,687,500
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Scotia Capital (USA) Inc.
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1,687,500
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Total
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13,500,000
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The underwriters are committed to purchase all the common shares offered by us if they purchase any shares. The underwriting
agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated.
The underwriters propose to offer the common shares directly to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession
not in excess of $0.1776 per share. After the initial offering of the shares to the public, the offering price and other selling terms may be changed by the underwriters.
The underwriters have an option to buy up to 2,025,000 additional shares of common stock from us to cover over-allotments, if any. The underwriters have 30 days from the date of this prospectus to
exercise this option to purchase additional shares. If any shares are purchased with this option to purchase additional shares, the underwriters will purchase shares in approximately the same proportion as shown in the table above. If any
additional shares of common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which the shares are being offered.
The underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriters to us per share of common stock. The underwriting fee is $0.3145 per
share. The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters assuming both no exercise and full exercise of the underwriters option to purchase additional shares.
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Without
option to
purchase
additional shares
exercise
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With full
option
to
purchase
additional shares
exercise
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Per Share
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$
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0.3145
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$
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0.3145
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Total
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$
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4,245,750.00
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$
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4,882,612.50
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We estimate that the total expenses of this offering, including registration, filing and listing fees, printing fees and legal and
accounting expenses, but excluding the underwriting discounts and commissions, will be approximately $250,000. We have also agreed to reimburse the underwriters for certain of their expenses in an amount up to $10,000.
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A prospectus in electronic format may be made available on the web sites maintained by one or more underwriters, or
selling group members, if any, participating in the offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions
will be allocated by the representative to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.
We have agreed that, subject to certain exceptions, we will not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise dispose of, directly or indirectly, or file with the Securities and Exchange Commission a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into
or exchangeable or exercisable for any shares of our common stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any shares of common stock or any such other securities (regardless of whether any of these transactions are to be settled by the delivery of shares of common stock or such other securities, in
cash or otherwise), in each case without the prior written consent of J.P. Morgan Securities LLC for a period of 45 days after the date of this prospectus, other than the shares of our common stock to be sold hereunder.
Our directors and executive officers have entered into lock-up agreements with the underwriters prior to the commencement of this offering pursuant to which each of
these persons or entities, with limited exceptions, for a period of 45 days after the date of this prospectus, may not, without the prior written consent of J.P. Morgan Securities LLC, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of our common stock or any securities convertible into or
exercisable or exchangeable for our common stock (including, without limitation, common stock or such other securities which may be deemed to be beneficially owned by such directors, executive officers, managers and members in accordance with the
rules and regulations of the SEC and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge, or disposition or (2) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the common stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of common stock or such other
securities, in cash or otherwise, or (3) make any demand for or exercise any right with respect to the registration of any shares of our common stock or any security convertible into or exercisable or exchangeable for our common stock.
We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act of 1933.
Our common stock is listed/quoted on the New York Stock Exchange under the symbol BBG.
In connection with this offering, the underwriters may engage in stabilizing transactions, which involves making bids for, purchasing and selling shares of common stock in the open market for the purpose of
preventing or retarding a decline in the market price of the common stock while this offering is in progress. These stabilizing transactions may include making short sales of the common stock, which involves the sale by the underwriters of a
greater number of shares of common stock than they are required to purchase in this offering, and purchasing shares of common stock on the open market to cover positions created by short sales. Short sales may be covered shorts,
which are short positions in an amount not greater than the underwriters option to purchase additional shares referred to above, or may be naked shorts, which are short positions in excess of that amount. The underwriters may
close out any covered short position either by exercising their option to purchase additional shares, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other
things, the price of shares available for purchase in
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the open market compared to the price at which the underwriters may purchase shares through the option to purchase additional shares. A naked short position is more likely to be created if
the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market that could adversely affect investors who purchase in this offering. To the extent that the underwriters create a naked short
position, they will purchase shares in the open market to cover the position.
The underwriters have advised us that, pursuant to Regulation M of
the Securities Act of 1933, they may also engage in other activities that stabilize, maintain or otherwise affect the price of the common stock, including the imposition of penalty bids. This means that if the representative of the underwriters
purchase common stock in the open market in stabilizing transactions or to cover short sales, the representative can require the underwriters that sold those shares as part of this offering to repay the underwriting discount received by them.
These activities may have the effect of raising or maintaining the market price of the common stock or preventing or retarding a decline in the market
price of the common stock, and, as a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. If the underwriters commence these activities, they may discontinue them at any
time. The underwriters may carry out these transactions on the New York Stock Exchange, in the
over-the-counter
market or otherwise.
Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus
in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection
with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose
possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of
an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
In relation to each
Member State of the European Economic Area (each, a Relevant Member State), no offer of shares may be made to the public in that Relevant Member State other than:
A.
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to any legal entity which is a qualified investor as defined in the Prospectus Directive;
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B.
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to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified
investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representative; or
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C.
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in any other circumstances falling within Article 3(2) of the Prospectus Directive,
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provided that no such offer of shares shall require the Company or the representative to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a
prospectus pursuant to Article 16 of the Prospectus Directive.
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Each person in a Relevant Member State who initially acquires any shares or
to whom any offer is made will be deemed to have represented, acknowledged and agreed that it is a qualified investor within the meaning of the law in that Relevant Member State implementing Article 2(1)(e) of the Prospectus
Directive. In the case of any shares being offered to a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive, each such financial intermediary will be deemed to have represented, acknowledged and agreed that
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the shares acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in
circumstances which may give rise to an offer of any shares to the public other than their offer or resale in a Relevant Member State to qualified investors as so defined or in circumstances in which the prior consent of the representative has
been obtained to each such proposed offer or resale.
The Company, the representative and their affiliates will rely upon the truth and accuracy of the
foregoing representations, acknowledgements and agreements.
This prospectus has been prepared on the basis that any offer of shares in any Relevant
Member State will be made pursuant to an exemption under the Prospectus Directive from the requirement to publish a prospectus for offers of shares. Accordingly any person making or intending to make an offer in that Relevant Member State of shares
which are the subject of the offering contemplated in this prospectus may only do so in circumstances in which no obligation arises for the Company or any of the underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Directive
in relation to such offer. Neither the Company nor the underwriters have authorized, nor do they authorize, the making of any offer of shares in circumstances in which an obligation arises for the Company or the underwriters to publish a
prospectus for such offer.
For the purpose of the above provisions, the expression an offer to the public in relation to any shares in any
Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the shares to be offered so as to enable an investor to decide to purchase or subscribe the shares, as the same may be
varied in the Relevant Member State by any measure implementing the Prospectus Directive in the Relevant Member State and the expression Prospectus Directive means Directive 2003/71/EC (including the 2010 PD Amending Directive, to the
extent implemented in the Relevant Member States) and includes any relevant implementing measure in the Relevant Member State and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
In addition, in the United Kingdom, this document is being distributed only to, and is directed only at, and any offer subsequently made may only be directed at
persons who are qualified investors (as defined in the Prospectus Directive) (i) who have professional experience in matters relating to investments falling within Article 19 (5) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005, as amended (the Order) and/or (ii) who are high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order (all such persons together
being referred to as relevant persons).
Any person in the United Kingdom that is not a relevant person should not act or rely on the
information included in this document or use it as basis for taking any action. In the United Kingdom, any investment or investment activity that this document relates to may be made or taken exclusively by relevant persons. Any person in the United
Kingdom that is not a relevant person should not act or rely on this document or any of its contents.
Certain of the underwriters and their affiliates
have provided in the past to us and our affiliates and may provide from time to time in the future certain commercial banking, financial advisory, investment banking and other services for us and such affiliates in the ordinary course of their
business, for which they have received and may continue to receive customary fees and commissions. In addition, from time to time, certain of the underwriters and their affiliates may effect transactions for their own account or the account of
customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans, and may do so in the future. In particular, an affiliate of J.P. Morgan Securities LLC is a lender under our credit
facility. Additionally, an affiliate of J.P. Morgan Securities LLC acts as administrative agent under our credit facility.
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Description of capital stock
As of the date of this prospectus supplement, we are authorized to issue up to 150,000,000 shares of common stock of $.001 par value, and 75,000,000 shares of
preferred stock, par value $.001 per share. As of December 2, 2016, there were 60,198,803 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
The following summary of certain provisions of our capital stock does not purport to be complete and is not intended to give full effect to provisions of statutory
or common law. The summary is subject to and is qualified in its entirety by reference to all the provisions of our amended and restated certificate of incorporation and amended and restated bylaws, copies of which are filed as exhibits to the
registration statement of which this prospectus is a part, and by the provisions of applicable law.
Common stock
Each share of common stock is entitled to one vote on all matters presented to the holders of common stock. Cumulative voting is not allowed in the election of
directors or for any other purpose, and the holders of common stock have no preemptive rights, redemption rights or rights of conversion with respect to the common stock. When issued in the manner and for the full consideration approved by the board
of directors, shares of common stock are fully paid and nonassessable. The holders of common stock are entitled to receive dividends when, as and if declared by our board of directors, out of funds legally available for their payment subject to the
rights of holders of any preferred stock outstanding. Upon the liquidation, dissolution or winding up of our company, the holders of our common stock are entitled to receive ratably our net assets available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding preferred stock. Our board of directors is authorized to issue additional shares of common stock within the limits authorized by our amended and restated certificate of incorporation and
without stockholder action.
Our common stock is listed on the New York Stock Exchange (the NYSE) under the symbol BBG.
Preferred stock
The preferred stock may carry
such relative rights, preferences and designations as may be determined by our board of directors in its sole discretion upon the issuance of any shares of preferred stock. The shares of preferred stock could be issued from time to time by the board
of directors in its sole discretion (without further approval or authorization by the stockholders), in one or more series, each of which series could have any particular distinctive designations as well as relative rights and preferences as
determined by the board of directors. The relative rights and preferences that may be determined by the board of directors in its discretion from time to time, include but are not limited to the following:
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the rate of dividend and whether the dividends are to be cumulative and the priority, if any, of dividend payments relative to other series in the class;
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whether the shares of any such series may be redeemed, and if so, the redemption price and the terms and conditions of redemption;
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the amount payable with respect to such series in the event of voluntary or involuntary liquidation; the priority, if any, of each series relative to other
series in the class with respect to amounts payable upon liquidation; and the sinking fund provisions, if any, for the redemption or purchase of the shares of that series; and
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the terms and conditions, if any, on which the shares of a series may be converted into or exchanged for shares of any class, whether common or preferred, or
into shares of any series of the same class, and if provision is made for conversion or exchange, the times, prices, rates, adjustments and other terms.
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The existence of authorized but unissued shares of preferred stock could have anti-takeover effects because we could
issue preferred stock with special dividend or voting rights that could discourage potential bidders.
As a result, the Company may issue shares of
preferred stock that have dividend, voting and other rights superior to those of the common stock, or that convert into shares of common stock, without the approval of the holders of common stock. This could result in the dilution of the voting
rights, ownership and liquidation value of current stockholders.
Anti-takeover effects of delaware law, our amended and restated certificate of
incorporation and amended and restated bylaws
General
Our amended and restated certificate of incorporation and amended and restated bylaws contain the following additional provisions, some of which are intended to enhance the likelihood of continuity and stability in
the composition of our board of directors and in the policies formulated by our board of directors. In addition, some provisions of the Delaware General Corporation Law (DGCL), if applicable to us, may hinder or delay an attempted
takeover without prior approval of our board of directors. Provisions of the DGCL and of our amended and restated certificate of incorporation and amended and restated bylaws could discourage attempts to acquire us or remove incumbent management
even if some or a majority of our stockholders believe this action is in their best interest. These provisions could, therefore, prevent stockholders from receiving a premium over the market price for the shares of common stock they hold. However,
we no longer have a classified board of directors.
Filling board of directors vacancies; removal
Our amended and restated certificate of incorporation provides that newly created directorships resulting from any increase in the authorized number of directors
and vacancies will be filled by the affirmative vote of a majority of our directors then in office, though less than a quorum, and not by the stockholders.
Our directors may be removed, with or without cause, by the affirmative vote of a majority of the shares entitled to vote at an election of directors.
No stockholder action by written consent
Our amended and restated certificate of incorporation
precludes stockholders from initiating or effecting any action by written consent and thereby taking actions opposed by the board of directors.
Call of special meetings
Our amended and restated
bylaws provide that special meetings of our stockholders may be called at any time only by the board of directors acting pursuant to a resolution adopted by the board and not the stockholders.
Advance notice requirements for stockholder proposals and director nominations
Our amended and restated bylaws provide that stockholders seeking to bring business before or to nominate candidates for election as directors at an annual meeting of stockholders must provide timely notice of
their proposal in writing to the corporate secretary. To be timely, a stockholders notice must be delivered to our corporate secretary at our principal executive offices no later than the 60th day or earlier than the 90th day before the first
anniversary of the preceding years annual meeting. If, however, no meeting was held in the
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prior year or the date of the annual meeting has been changed by more than 30 days from the anniversary of the prior annual meeting, notice by the stockholder in order to be timely must be
received no later than the close of business on the 90th day before the annual meeting or the tenth day following the day on which the date of the annual meeting is publicly announced. Our amended and restated bylaws also specify requirements as to
the form and content of a stockholders notice and impose certain other requirements. These provisions may preclude stockholders from bringing matters before an annual meeting of stockholders or from making nominations for directors at an
annual meeting of stockholders or may discourage or defer a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.
No cumulative voting
The DGCL provides that
stockholders are not entitled to cumulate votes in the election of directors unless our certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation does not expressly provide for cumulative voting. Under
cumulative voting, a minority stockholder holding a sufficient percentage of a class of shares may be able to ensure the election of one or more directors.
Authorized but unissued shares
Under our amended and restated certificate of incorporation, authorized
but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to various limitations imposed by the NYSE. These additional shares may be utilized for a variety of corporate purposes,
including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock and preferred stock could make it more difficult or discourage an
attempt to obtain control of our Company by means of a proxy contest, tender offer, merger or otherwise.
Delaware anti-takeover statute
We are subject to Section 203 of the DGCL, an anti-takeover law. In general, this section prevents certain Delaware corporations under
certain circumstances from engaging in a business combination with an interested stockholder (generally, a holder of 15% or more of the outstanding voting stock of the corporation). A business combination includes
a merger or sale of 10% or more of our assets. However, the above provisions of Section 203 do not apply if (1) our board approves the transaction prior to the person becoming an interested stockholder or the transaction that
results in the person becoming an interested stockholder; (2) after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting
stock outstanding at the time the transaction commenced, excluding shares owned by certain of our directors and certain employee benefit plans; or (3) the business combination is approved by our board and authorized at a meeting of our
stockholders by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder. This statute could prohibit or delay mergers or other change in control attempts, and thus may discourage
attempts to acquire us.
Transfer agent and registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
S-19
Legal matters
The validity of the shares of common stock offered hereby will be passed upon for us by Davis Graham & Stubbs LLP, Denver, Colorado. Certain legal matters in connection with this offering will be passed upon
for the underwriters by Latham & Watkins LLP, Houston, Texas.
Experts
The financial statements, incorporated in this prospectus supplement by reference from Bill Barrett Corporations Annual Report on Form 10-K for the year ended
December 31, 2015, and the effectiveness of Bill Barrett Corporations internal control over financial reporting, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their
reports, which are incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
Certain information regarding our estimates of the oil and gas reserves associated with our oil and gas properties incorporated by reference in this prospectus
supplement has been reviewed by Netherland, Sewell & Associates, Inc., an independent petroleum engineering firm. The description of the review of such estimates is included and incorporated by reference into this prospectus supplement,
upon the authority of said firm as an expert in these matters.
Where you can find more information
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the Exchange Act), and we file annual, quarterly
and other reports and other information with the Securities and Exchange Commission (the SEC). You may read and copy any document we file with the SEC at the SECs public reference room at 100 F Street NE,
Washington, D.C. 20549-2521. Please call 1-800-732-0330 for further information concerning the operation of the public reference room. Our SEC filings are also available on the SECs web site at
http://www.sec.gov.
Unless
specifically listed under Information Incorporated by Reference below, the information contained on the SEC web site is not intended to be incorporated by reference in this prospectus supplement and you should not consider that
information a part of this prospectus supplement.
We make available free of charge on or through our Internet website, www.billbarrettcorp.com, our
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable
after we electronically file such material with, or furnish it to, the SEC. In addition, information contained on our Internet website is not part of this prospectus supplement and does not constitute a part of this prospectus supplement.
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Information incorporated by reference
We incorporate by reference in this prospectus supplement certain documents that we have previously filed with the SEC. This means that we are
disclosing important information to you without actually including that information in this prospectus supplement by referring you to other documents that we have filed separately with the SEC. The information incorporated by reference is an
important part of this prospectus supplement. Information that we later provide to the SEC, and which is deemed filed with the SEC, will automatically update information that we previously filed with the SEC, and may replace information
in this prospectus supplement and information that we previously filed with the SEC. We incorporate by reference the following documents in this prospectus supplement, which you should review in connection with this prospectus supplement:
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our Annual Report on Form 10-K for the year ended December 31, 2015, filed with the SEC on March 2, 2016;
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the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2015 from our Definitive Proxy
Statement on Schedule 14A, filed with the SEC on April 7, 2016;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016, June 30, 2016, and September 30, 2016 filed with the SEC on May 5, 2016, August 4,
2016, and November 3, 2016, respectively; and
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our Current Reports on Form 8-K, filed with the SEC on February 24, 2016, March 18, 2016, April 8, 2016, May 20, 2016, and June 3, 2016, in each case,
excluding any information furnished pursuant to Item 2.02 or Item 7.01 of Current Report on Form 8-K ; and
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the description of our common stock contained in our Form 8-A registration statement filed on December 2, 2004, as amended on December 20, 2004 and March 18,
2013.
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We also incorporate by reference each of the documents that we file with the SEC (excluding those filings made under
Items 2.02 or 7.01 of Form 8-K or other information furnished to the SEC) under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act on or after the date of this prospectus supplement and before the termination of the offering of
common stock under this prospectus supplement shall be deemed to be incorporated in this prospectus supplement by reference and to be a part hereof from the date of the filing of such documents. Any statements made in such documents will
automatically update and supersede the information contained in this prospectus supplement, and any statements made in this prospectus supplement update and supersede the information contained in past SEC filings incorporated by reference into this
prospectus supplement.
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:
Bill Barrett
Corporation
Attention: Corporate Secretary
1099 18
th
Street, Suite 2300
Denver, Colorado 80202
303-293-9100
S-21
Prospectus
$500,000,000
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Common stock
Stock purchase units
Debt securities
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Preferred stock
Stock purchase contracts
Rights
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Depositary shares
Securities warrants
Guarantees of debt securities
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We may offer and sell from time to time:
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debt securities, which may be senior or subordinated;
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shares of common stock;
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stock purchase contracts;
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shares of preferred stock, which may be issued in the form of depositary shares evidenced by depositary receipts;
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rights to purchase common stock or preferred stock; and
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securities warrants to purchase debt securities, common stock, preferred stock or depositary shares.
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We may offer the securities separately or together, in separate series or classes and in amounts, at prices and on terms described in one or more offerings up to a
maximum aggregate amount of $500 million. This prospectus provides you with a general description of the securities that may be offered. Each time we offer and sell securities, we will provide one or more supplements to this prospectus that contain
more specific information about the offering and the terms of the securities. The supplements may also add, update or change information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement
before you invest in any of our securities.
The debt securities, preferred stock and purchase contracts may be convertible into or exercisable for
common or preferred stock or other securities. This prospectus also covers guarantees, if any, of our payment obligations under the debt securities, which may be given from time to time by one or more of our subsidiaries, on terms to be determined
at the time of the offering.
Our common stock is listed on the New York Stock Exchange under the symbol BBG.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. The
prospectus supplement for each offering of securities will describe in detail the plan of distribution for that offering.
Investing in our securities
involves certain risks. You should carefully consider the risks described under
Risk Factors
on page 4 of this prospectus, as well as the other information contained or incorporated by reference in this
prospectus and the applicable prospectus supplement, before making a decision to invest in our securities.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is July 9, 2015
Table of contents
About this prospectus
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a shelf registration process. Under this shelf process, we
may, over time, 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 we may offer pursuant to this prospectus. Each time we 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. You should read both this
prospectus and any accompanying prospectus supplement together with the additional information described under the heading Where You Can Find More Information.
In addition, we have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to
you.
You should rely only on the information incorporated by reference or provided in this registration statement. We have not authorized any dealer,
salesman or other person to provide you with additional or different information. This prospectus and any accompanying prospectus supplement are not an offer to sell or the solicitation of an offer to buy any securities other than the securities to
which they relate and are not an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make an offer or solicitation in that jurisdiction. You should not assume that the
information in this prospectus or any accompanying prospectus supplement or in any document incorporated by reference in this prospectus or any accompanying prospectus supplement is accurate as of any date other than the date of the document
containing the information.
Unless the context requires otherwise or unless otherwise noted, all references in this prospectus or any accompanying
prospectus supplement to the Company, we, us or our are to Bill Barrett Corporation and its subsidiaries.
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Where you can find more information
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings (File No. 1-32367) are available to the
public over the Internet at the SECs website at http://www.sec.gov. You may also read and copy any document we file with the SEC 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. We make available free of charge through our website, http://www.billbarrettcorp.com, electronic copies of documents we file with the SEC, including our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K and any amendments to those reports. Access to those electronic filings is available as soon as reasonably practical after we file them with, or furnish
them to, the SEC. We make our website content available for information purposes only. Information on our website is not incorporated into this prospectus or our other securities filings and is not a part of these filings.
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. 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. Any information so updated or superseded will not be deemed, except as so updated or superseded, to be a part of this prospectus. We incorporate by reference (excluding information deemed to have been furnished, and not filed, in
accordance with SEC rules) the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (Exchange Act), before the termination of each
offering under this prospectus:
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our Annual Report on Form 10-K for the year ended December 31, 2014, including the information specifically incorporated by reference into our Annual Report on
Form 10-K from our definitive proxy statement for the 2015 Annual Meeting of Stockholders;
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our Quarterly Report on Form 10-Q filed on May 8, 2015;
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our Current Reports on Form 8-K filed on January 30, 2015, April 9, 2015, May 12, 2015 and June 10, 2015; and
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the description of our common stock contained in our Form 8-A registration statement filed on December 2, 2004, as amended on December 20, 2004.
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior
to the termination of this offering, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of
such reports and documents.
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 us at the following address or telephoning us at the following number:
Bill
Barrett Corporation
Attention: Corporate Secretary
1099 18th Street, Suite 2300
Denver, Colorado 80202
303-293-9100
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About our company
Bill Barrett Corporation together with its wholly-owned subsidiaries, which may be guarantors of the debt securities described in this prospectus, develops, acquires and explores for oil and natural gas resources.
All of the Companys assets and operations are located in the Rocky Mountain region of the United States. For additional information about our business, operations and financial results, please read the documents listed above under the heading
Where You Can Find More Information.
We are a Delaware corporation formed in January 2002. Our principal executive offices are located at
1099 18th Street, Suite 2300, Denver, Colorado 80202, and our telephone number at that address is 303-293-9100.
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Risk factors
An investment in our securities involves a high degree of risk. You should carefully consider the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by any subsequent
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K that we have filed or will file, and all other information contained or incorporated by reference into this prospectus and the risk factors and other information contained in the
applicable prospectus supplement before deciding to invest in our securities. The risks described are not the only risks facing our Company. Additional risks not presently known to us or which we currently consider immaterial also may adversely
affect our Company.
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Cautionary note regarding forward-looking statements
This prospectus and information incorporated into this prospectus contain forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Exchange Act. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond our control. Our actual
results could differ materially from those discussed in these forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, the following risks and uncertainties:
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potential failure to achieve expected production from existing and future exploration or development projects or acquisitions;
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volatility of market prices received for oil, natural gas and natural gas liquids;
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derivative and hedging activities;
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legislative, judicial or regulatory changes including initiatives related to drilling and completion techniques such as hydraulic fracturing;
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risks associated with operating in the Rocky Mountain region;
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our compliance with environmental and other regulations;
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economic and competitive conditions;
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the occurrence of property divestitures or acquisitions;
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costs and availability of third party facilities for gathering, processing, refining and transportation;
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future processing volumes and pipeline throughput;
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the impact of health and safety issues on our operations;
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operational risks, including industrial accidents and natural disasters;
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reductions in the borrowing base under our revolving credit facility;
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debt and equity capital market conditions;
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our ability to successfully receive drilling and other permits, regulatory approvals and required surface access and rights of way;
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higher than expected costs and expenses including production, drilling and well equipment costs;
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declines in the values of our oil and natural gas properties resulting in impairments;
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changes in estimates of our proved reserves;
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the potential for production decline rates from our wells to be greater than we expect;
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our ability to replace natural production declines with acquisitions, new drilling or recompletion activities;
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exploration risks such as the drilling of unsuccessful wells;
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capital expenditures and other contractual obligations;
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liabilities resulting from litigation concerning alleged damages related to environmental issues, pollution, contamination, personal injury, royalties,
marketing, title to properties, validity of leases or other matters that may not be covered by an effective indemnity or insurance;
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changes in tax laws and statutory tax rates; and
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other uncertainties, as well as those factors discussed in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2014 under the
headings Cautionary Note Regarding Forward-Looking Statements and Risk Factors.
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All statements other than
statements of historical fact included in or incorporated into this prospectus are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as expect, seek,
believe, upside, will, may, expect, anticipate, plan, will be dependent on, project, potential, intend,
could, should, estimate, predict, pursue, target, objective, or the negative of such terms or other comparable terminology.
The forward-looking statements contained in this prospectus are largely based on our expectations, which reflect estimates and assumptions made by our management.
These estimates and assumptions reflect our best judgment based on currently known market conditions and other factors. Although we believe such estimates and assumptions to be reasonable, they are inherently uncertain and involve a number of risks
and uncertainties that are beyond our control. In addition, managements assumptions about future events may prove to be inaccurate. Management cautions all readers that the forward-looking statements included or incorporated by reference into
this prospectus are not guarantees of future performance, and we cannot assure any reader that such statements will be realized or that forward-looking events and circumstances will occur. Actual results may differ materially from those anticipated
or implied in the forward-looking statements due to many factors including those listed above and in Item 1A. Risk Factors and elsewhere in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K.
Readers should not place undue reliance on these forward-looking statements, which reflect managements views only as of the date these statements are made. Other than as required under applicable securities laws, we do not intend to, and do
not undertake any obligation to, publicly update or revise any forward-looking statements as a result of changes in internal estimates or expectations, new information, subsequent events or circumstances or otherwise. These cautionary statements
qualify all forward-looking statements attributable to us or persons acting on our behalf.
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Use of proceeds
Except as may be stated in any prospectus supplement, we intend to use the net proceeds from any sales of securities by us under this prospectus for general corporate purposes. If we decide to use the net proceeds
from a particular offering of securities for a specific purpose, we will describe that in the related prospectus supplement.
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Ratio of earnings to fixed charges
For purposes of determining the ratio of earnings to fixed charges, (i) earnings are defined as income (loss) before income taxes plus interest expense and
amortization of debt related costs and (ii) fixed charges are defined as interest expense, capitalized interest, amortized premiums, discounts and capitalized expenses related to indebtedness.
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Three months
ended
March 31,
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Fiscal year ended December 31,
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2015
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2014
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2013
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2012
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2011
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2010
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Ratio of earnings to fixed charges
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(1)
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1.5
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(2)
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1.0
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1.7
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3.5
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(1)
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Due to our net loss for the quarter ended March 31, 2015, the coverage ratio was less than 1:1. To achieve a coverage ratio of 1:1, we would have needed additional earnings of
approximately $18.6 million for the quarter ended March 31, 2015.
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(2)
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Due to our net loss for the year ended December 31, 2013, the coverage ratio was less than 1:1. To achieve a coverage ratio of 1:1, we would have needed additional earnings of
approximately $311.1 million for the year ended December 31, 2013.
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We had no preferred stock outstanding for any period presented, and
accordingly our ratio of earnings to combined fixed charges and preferred stock dividends is the same as our ratio of earnings to fixed charges.
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Description of debt securities and guarantees
General
We may issue senior or subordinated debt securities.
Neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. Thus, by owning a debt security, you are one of our unsecured creditors.
The senior debt securities will constitute part of our senior debt, will be issued under our senior debt indenture described below and will rank equally with all of
our other unsecured and unsubordinated debt.
The subordinated debt securities will constitute part of our subordinated debt, will be issued under our
subordinated debt indenture described below and will be subordinate in right of payment to all of our senior debt, as defined in the indenture with respect to subordinated debt securities. The prospectus supplement for any series of
subordinated debt securities or the information incorporated in this prospectus by reference will indicate the approximate amount of senior debt outstanding as of the end of our most recent fiscal quarter. Neither indenture limits our ability to
incur additional senior debt or other indebtedness.
When we refer to debt securities in this prospectus, we mean both the senior debt
securities and the subordinated debt securities. The debt securities may be convertible into or exercisable for common or preferred stock or other securities of ours or debt or equity securities of one or more other entities.
The debt securities may have the benefit of guarantees (each, a guarantee) by one or more of the subsidiaries of Bill Barrett Corporation identified
herein (each, a guarantor). If a guarantor issues guarantees, the guarantees will be unsecured and, if guaranteeing senior debt securities, unsubordinated or, if guaranteeing subordinated debt securities, subordinated obligations of the
respective guarantors. Unless otherwise expressly stated or the context otherwise requires, as used in this section, the term guaranteed debt securities means debt securities that, as described in the prospectus supplement relating
thereto, are guaranteed by one or more guarantors pursuant to the applicable indenture.
This section and your prospectus supplement summarize certain
general terms and provisions of the indentures and your debt security. They do not, however, describe every aspect of the indentures and your debt security. For example, in this section and your prospectus supplement, we use terms that have been
given special meaning in the indentures, but we describe the meaning for only the more important of those terms.
This summary is subject to, and are
qualified in its entirety by reference to, all of the provisions of the applicable indenture, as supplemented from time to time, your debt security, and to the Trust Indenture Act of 1939, as amended. We have filed forms of the indentures with
the SEC as exhibits to our registration statement, of which this prospectus is a part; however, the indentures may be amended in the future. See Where You Can Find More Information above for information on how to obtain copies of them.
Indentures
The senior debt securities and
subordinated debt securities are each governed by a document each called an indenture. Each indenture is a contract between us, any of our subsidiary guarantors, and the indenture trustee, which is currently Deutsche Bank Trust Company Americas. We
may issue senior debt securities offered by this prospectus under our existing indentures, if the applicable existing indenture is still in existence on the date of issue of senior debt. We have two existing indentures. The first existing indenture
is dated as of March 12, 2008, as supplemented as of March 12, 2008, July 8, 2009 and August 3, 2011, and is among us, the guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee. The second existing
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indenture is dated as of July 8, 2009, as supplemented as of July 8, 2009, August 3, 2011, September 27, 2011 and March 12, 2012, and is among us, the
guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee.
The trustee under each indenture has two main roles:
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First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, which we
describe later under Default, Remedies and Waiver of Default and as set forth in each specific indenture.
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Second, the trustee performs administrative duties for us, such as sending you interest payments and notices.
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When we refer to the indenture or the trustee with respect to any debt securities, we mean the indenture under which those debt securities are issued and the
trustee under that indenture.
Series of debt securities
We may issue many distinct debt securities or series of debt securities under either indenture as we wish. This section summarizes terms of the securities that apply generally to all debt securities and series of
debt securities. The provisions of each indenture allow us not only to issue debt securities with terms different from those of debt securities previously issued under that indenture, but also to reopen a previously issued series of debt
securities and issue additional debt securities of that series. We will describe most of the financial and other specific terms of your series, whether it be a series of the senior debt securities or subordinated debt securities, in the prospectus
supplement for that series. Those terms may vary from the terms described here.
As you read this section, please remember that the specific terms of
your debt security as described in your prospectus supplement will supplement and may modify or replace the general terms described in this section. If there are any differences between your prospectus supplement and this prospectus, your prospectus
supplement will control. Thus, the statements we make in this section may not apply to your debt security.
When we refer to a debt security
or a series of debt securities, we mean, respectively, a debt security or a series of debt securities issued under a particular indenture. When we refer to your debt security, we mean a debt security you purchase. When we
refer to your prospectus supplement, we mean the prospectus supplement describing the specific terms of your debt security. The terms used in your prospectus supplement will have the meanings described in this prospectus, unless otherwise specified.
Amounts of issuances
Neither indenture limits
the aggregate amount of debt securities that we may issue or the number of series or the aggregate amount of any particular series. We may issue debt securities and other securities at any time without your consent and without notifying you.
Unless otherwise specified in a prospectus supplement, the indentures and the debt securities do not limit our ability to incur other indebtedness or to
issue other securities. Also, unless otherwise specified below or in your prospectus supplement, we are not subject to financial or similar restrictions by the terms of the debt securities.
Principal amount, stated maturity and maturity
Unless otherwise stated, the principal amount of a debt
security means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount of a debt security is its face amount.
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The term stated maturity with respect to any debt security means the day on which the principal amount of
your debt security is scheduled to become due. The principal may become due sooner, by reason of redemption or acceleration after a default or otherwise in accordance with the terms of the debt security. The day on which the principal actually
becomes due, whether at the stated maturity or earlier, is called the maturity of the principal.
We also use the terms stated
maturity and maturity to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of interest is scheduled to become due as the stated maturity
of that installment. When we refer to the stated maturity or the maturity of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the case may be, of the principal.
Specific terms of debt securities
Your prospectus
supplement will describe the specific terms of your debt security, which will include some or all of the following:
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the title of the series of your debt security and whether it is a senior debt security or a subordinated debt security;
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any limit on the total principal amount of the debt securities of the same series;
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the currency or currencies for principal and interest, if not U.S. dollars;
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the price at which we originally issue your debt security, expressed as a percentage of the principal amount, and the original issue date;
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whether your debt security is a fixed rate debt security, a floating rate debt security or an indexed debt security;
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if your debt security is a fixed rate debt security, the yearly rate at which your debt security will bear interest, if any, and the interest payment dates;
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if your debt security is a floating rate debt security, the interest rate basis; any applicable index currency or index maturity, spread or spread multiplier or
initial base rate, maximum rate or minimum rate; the interest reset, determination, calculation and payment dates; the day count convention used to calculate interest payments for any period; the business day convention; and the calculation agent;
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if your debt security is an indexed debt security, the principal amount, if any, we will pay you at maturity, interest payment dates, the amount of interest, if
any, we will pay you on an interest payment date or the formula we will use to calculate these amounts, if any, and the terms on which your debt security will be exchangeable for or payable in cash, securities or other property;
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if your debt security may be converted into or exercised or exchanged for common or preferred stock or other securities of the Company or debt or equity
securities of one or more third parties, the terms on which conversion, exercise or exchange may occur, including whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option, the period during which
conversion, exercise or exchange may occur, the initial conversion, exercise or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion, exercise or
exchange may be adjusted;
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if your debt security is also an original issue discount debt security, the yield to maturity;
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if applicable, the circumstances under which your debt security may be redeemed at our option or repaid at the holders option before the stated maturity,
including any redemption commencement date, repayment date(s), redemption price(s) and redemption period(s);
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the authorized denominations, if other than $1,000 and integral multiples of $1,000;
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the depositary for your debt security, if other than The Depository Trust Company (DTC), and any circumstances under which the holder may request
securities in non-global form, if we choose not to issue your debt security in book-entry form only;
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if applicable, the circumstances under which we will pay additional amounts on any debt securities held by a person who is not a U.S. person for tax purposes and
under which we can redeem the debt securities if we have to pay additional amounts;
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whether your debt security will be guaranteed by any guarantors and, if so, the identity of the guarantors and, to the extent the terms thereof differ from those
described in this prospectus, a description of the terms of the guarantees;
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the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for your debt security, as applicable;
and
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any other terms of your debt security and any guarantees of your debt security, which could be different from those described in this prospectus.
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We may issue debt securities at a discount from their stated principal amount. Federal income tax considerations and other special
considerations applicable to any debt security issued with original issue discount may be described in an applicable prospectus supplement.
Governing law
The indentures and the debt securities (and
any guarantees thereof) will be governed by the laws of the State of New York except to the extent that the Trust Indenture Act of 1939 is applicable.
Global securities
Unless we inform you otherwise in the
applicable prospectus supplement, a series of debt securities may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the applicable prospectus
supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a
whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary
or a nominee of such successor. The specific terms of the depositary arrangement with respect to any series of debt securities and the rights of and limitations upon owners of beneficial interests in a global security will be described in the
applicable prospectus supplement.
Redemption or repayment
If there are any provisions regarding redemption or repayment applicable to your debt security, we will describe them in your prospectus supplement.
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We or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in
the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, at our discretion, be held, resold or canceled.
Mergers and similar transactions
We are generally permitted under the indenture for the relevant series of
debt securities to merge or consolidate with another corporation or other entity. We are also permitted under the indenture for the relevant series of debt securities to sell all or substantially all of our assets to another corporation or other
entity. With regard to any series of debt securities, however, unless otherwise specified in the supplemental indenture establishing a series of debt securities, we may not take any of these actions unless all the following conditions, among other
things, are met:
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If the successor entity in the transaction is not the Company, the successor entity must be organized as a corporation, partnership, limited liability company or
trust and must expressly assume our obligations under the debt securities of that series and the indenture with respect to that series of debt securities. The successor entity may be organized under the laws of the United States, any state thereof
or the District of Columbia.
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Immediately after the transaction, no default under the debt securities of that series has occurred and is continuing. For this purpose, default under the
debt securities of that series means an event of default with respect to that series of debt securities or any event that would be an event of default with respect to that series of debt securities if the requirements for giving us default
notice and for our default having to continue for a specific period of time were disregarded. We describe these matters below under Default, Remedies and Waiver of Default.
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If the conditions described above are satisfied with respect to any series of debt securities, we will not need to obtain the approval of the holders of those debt
securities in order to merge or consolidate or to sell our assets. In such event, the successor will be substituted for us, and thereafter all of our obligations under the relevant indenture, the debt securities and any coupons will terminate. Also,
these conditions will apply only if we wish to merge or consolidate with another entity or sell all or substantially all of our assets to another entity. We will not need to satisfy these conditions if we enter into other types of transactions,
including any transaction in which we acquire the stock or assets of another entity, any transaction that involves a change of control of the Company but in which we do not merge or consolidate and any transaction in which we sell less than
substantially all our assets.
If we sell all or substantially all of our assets, we will be released from all our liabilities and obligations under the
debt securities of any series and the indenture with respect to that series.
Subordination provisions
Holders of subordinated debt securities should recognize that contractual provisions in the subordinated debt indenture may prohibit us from making payments on
those securities. Subordinated debt securities are subordinate and junior in right of payment, to the extent and in the manner stated in the subordinated debt indenture, to all of our senior debt, as defined in the subordinated debt indenture,
including all debt securities we have issued and will issue under the senior debt indenture.
The subordinated debt indenture defines senior
debt as:
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our indebtedness under or in respect of our credit agreement, whether for principal, interest (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law, whether or not the claim for such interest is allowed as a claim in such proceeding), reimbursement obligations, fees, commissions, expenses, indemnities or other amounts; and
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any other indebtedness permitted under the terms of that indenture, unless the instrument under which such indebtedness is incurred expressly provides that it is
on a parity with or subordinated in right of payment to the subordinated debt securities.
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Notwithstanding the foregoing, senior
debt will not include: (i) equity interests; (ii) any liability for taxes; (iii) any indebtedness to any of our subsidiaries or affiliates; (iv) any trade payables; or (v) any indebtedness incurred in violation of the
subordinated debt indenture.
We may modify the subordination provisions, including the definition of senior debt, with respect to one or more series of
subordinated debt securities. Such modifications will be set forth in the applicable prospectus supplement.
The subordinated debt indenture provides
that, unless all principal of and any premium or interest on the senior debt has been paid in full, no payment or other distribution may be made in respect of any subordinated debt securities in the following circumstances:
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in the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization, assignment for creditors or other similar proceedings
or events involving us or our assets;
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(a) in the event and during the continuation of any default in the payment of principal, premium or interest on any senior debt beyond any applicable grace
period or (b) in the event that any event of default with respect to any senior debt has occurred and is continuing, permitting the holders of that senior debt (or a trustee) to accelerate the maturity of that senior debt, whether or not the
maturity is in fact accelerated (unless, in the case of (a) or (b), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded) or (c) in the event that any judicial proceeding
is pending with respect to a payment default or event of default described in (a) or (b); or
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in the event that any subordinated debt securities have been declared due and payable before their stated maturity.
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If the trustee under the subordinated debt indenture or any holders of the subordinated debt securities receive any payment or distribution that is prohibited under
the subordination provisions, then the trustee or the holders will have to repay that money to the holders of the senior debt.
Even if the subordination
provisions prevent us from making any payment when due on the subordinated debt securities of any series, we will be in default on our obligations under that series if we do not make the payment when due. This means that the trustee under the
subordinated debt indenture and the holders of that series can take action against us, but they will not receive any money until the claims of the holders of senior debt have been fully satisfied.
The subordinated debt indenture allows the holders of senior debt to obtain a court order requiring us and any holder of subordinated debt securities to comply with
the subordination provisions.
Legal defeasance, covenant defeasance and satisfaction and discharge
When we use the term defeasance, we mean discharge from some or all of our obligations under the applicable indenture. If we deposit with the trustee funds or
government securities, or if so provided in your prospectus supplement, obligations other than government securities, sufficient to make payments on any series of debt securities on the dates those payments are due and payable and other specified
conditions are satisfied, then, at our option, either of the following will occur:
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we will be discharged from our obligations with respect to the debt securities of such series and all obligations of any guarantors of such debt securities will
also be discharged with respect to the guarantees of such debt securities (legal defeasance); or
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we will be discharged from any covenants we make in the applicable indenture for the benefit of such series and the related events of default will no longer
apply to us (covenant defeasance).
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If we defease any series of debt securities, the holders of such securities will not be
entitled to the benefits of the applicable indenture, except for our obligations to register the transfer or exchange of such securities, replace stolen, lost or mutilated securities or maintain paying agencies and hold moneys for payment in trust.
In case of covenant defeasance, our obligation to pay principal, premium and interest on the applicable series of debt securities will also survive.
We
will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the applicable series of debt securities to recognize gain or loss for federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
Upon the effectiveness of defeasance with respect to any series of guaranteed debt securities, each guarantor of the debt securities of such series will be
automatically and unconditionally released and discharged from all of its obligations under its guarantee of the debt securities of such series and all of its other obligations under the applicable indenture in respect of the debt securities of that
series, without any action by the Company, any guarantor or the trustee and without the consent of the holders of any debt securities.
In addition, we
may satisfy and discharge all our obligations under the indenture with respect to debt securities of any series, other than our obligation to register the transfer of and exchange debt securities of that series, provided that we either:
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deliver all outstanding debt securities of that series to the trustee for cancellation; or
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all such debt securities not so delivered for cancellation have either become due and payable or will become due and payable at their stated maturity within one
year or are to be called for redemption within one year, and in the case of this bullet point, we have deposited with the trustee in trust an amount of cash sufficient to pay the entire indebtedness of such debt securities, including interest to the
stated maturity or applicable redemption date.
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Default, remedies and waiver of default
Events of default
Unless the securities resolution or
supplemental indenture establishing the series of debt securities otherwise provides (in which event the prospectus supplement will so state), an event of default with respect to a series of debt securities will occur if:
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we do not pay the principal or any premium on any debt security of that series on the due date;
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we do not pay interest on any debt security of that series within 30 days after the due date;
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we do not deposit a sinking fund payment with regard to any debt security of that series within 60 days after the due date, but only if the payment is required
under provisions described in the applicable prospectus supplement;
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we remain in breach of our covenants regarding mergers or sales of substantially all of our assets or any other covenant we make in the indenture for the benefit
of the relevant series, for 90 days after we receive a notice of default stating that we are in breach and requiring us to remedy the breach. The notice must be sent by the trustee or the holders of at least 25% in principal amount of the relevant
series of debt securities;
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we file for bankruptcy or other events of bankruptcy, insolvency or reorganization relating to the Company occur;
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if the debt securities of that series are guaranteed debt securities, the guarantee of the debt securities of that series by any guarantor shall for any reason
cease to be, or shall for any reason be asserted in writing by such guarantor or the Company, not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated or permitted by the indenture or the
debt securities of that series; or
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if the applicable prospectus supplement states that any additional event of default applies to the series, that event of default occurs.
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Remedies if an event of default occurs
If you are the holder of a subordinated debt security, all the remedies available upon the occurrence of an event of default under the subordinated debt indenture will be subject to the restrictions on the
subordinated debt securities described above under Subordination Provisions.
Except as otherwise specified in the applicable
prospectus supplement, if an event of default has occurred with respect to any series of debt securities and has not been cured or waived, the trustee or the holders of not less than 25% in principal amount of all debt securities of that series then
outstanding may declare the entire principal amount of the debt securities of that series to be due immediately. Except as otherwise specified in the applicable prospectus supplement, if the event of default occurs because of events in bankruptcy,
insolvency or reorganization relating to the Company, the entire principal amount of the debt securities of that series will be automatically accelerated, without any action by the trustee or any holder.
Each of the situations described above is called an acceleration of the stated maturity of the affected series of debt securities. Except as otherwise specified in
the applicable prospectus supplement, if the stated maturity of any series is accelerated and a judgment for payment has not yet been obtained, the holders of a majority in principal amount of the debt securities of that series may cancel the
acceleration for the entire series.
If an event of default occurs, the trustee will have special duties. In that situation, the trustee will be
obligated to use those of its rights and powers under the relevant indenture, and to use the same degree of care and skill in doing so, that a prudent person would use in that situation in conducting his or her own affairs.
Except as described in the prior paragraph, the trustee is not required to take any action under the relevant indenture at the request of any holders unless the
holders offer the trustee reasonable protection from expenses and liability. This is called an indemnity. If the trustee is provided with an indemnity reasonably satisfactory to it, the holders of a majority in principal amount of all debt
securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee with respect to that series. These majority holders may also direct the
trustee in performing any other action under the relevant indenture with respect to the debt securities of that series.
Before you bypass the trustee
and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to any debt security, all of the following must occur:
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the holder of your debt security must give the trustee written notice that an event of default has occurred with respect to the debt securities of your series,
and the event of default must not have been cured or waived;
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the holders of not less than 25% in principal amount of all debt securities of your series must make a written request that the trustee take action because of
the default, and they or other holders must offer to the trustee indemnity reasonably satisfactory to the trustee against the cost and other liabilities of taking that action;
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the trustee must not have taken action for 60 days after the above steps have been taken; and
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during those 60 days, the holders of a majority in principal amount of the debt securities of your series must not have given the trustee directions that are
inconsistent with the written request of the holders of not less than 25% in principal amount of the debt securities of your series.
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However, the limitations described above do not apply to a suit instituted by a holder of a debt security for enforcement of payment of the principal of and
interest on such debt security on or after the applicable due dates for the payment of such principal and interest.
Book-entry and other indirect owners
should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an acceleration of the maturity.
Waiver of default
The holders of not less than a majority in principal amount of the debt securities of
any series may waive a default for all debt securities of that series. If this happens, the default will be treated as if it has not occurred. No one can waive a payment default on your debt security, however, without the approval of the particular
holder of that debt security.
Annual information about defaults to the trustee
We are required to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the indentures.
Modifications and waivers
In general, modifications and amendments of the indenture may be made by us and the
trustee with the consent of the holders of not less than a majority in principal amount of the debt securities of each series affected thereby. However, no modification or amendment of the indenture may, without the consent of the holder of each
debt security affected thereby:
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change the stated maturity of, or any installment of principal of, or interest on, any debt security;
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reduce the principal amount of, the rate of interest on, or the premium, if any, payable upon the redemption of, any debt security;
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reduce the amount of principal of an original issue discount security payable upon acceleration of the maturity thereof;
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change the place or currency of payment of principal of, or premium, if any, or interest on any debt security;
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impair the right to institute suit for the enforcement of any payment on or with respect to any debt security on or after the stated maturity or prepayment date
thereof; or
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reduce the percentage in principal amount of debt securities of any series required for modification or amendment of the indenture or for waiver of compliance
with certain provisions of the indenture or for waiver of certain defaults.
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We may not amend the indenture related to subordinated debt
securities to alter the subordination of any outstanding subordinated debt securities without the written consent of each holder of senior debt then outstanding who would be adversely affected (or the group or representative thereof authorized or
required to
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consent thereto pursuant to the instrument creating or evidencing, or pursuant to which there is outstanding, such senior debt). In addition, we may not modify the subordination provisions of the
indenture related to subordinated debt securities in a manner that would adversely affect the subordinated debt securities of any one or more series then outstanding in any material respect, without the consent of the holders of a majority in
aggregate principal amount of all affected series then outstanding, voting together as one class (and also of any affected series that by its terms is entitled to vote separately as a series, as described below).
The holders of at least a majority in principal amount of the debt securities of any series may, on behalf of the holders of all debt securities of that series,
waive our compliance with specified covenants of the indenture. The holders of at least a majority in principal amount of the debt securities of any series may, on behalf of the holders of all debt securities of that series, waive any past default
under the indenture with respect to that series, except:
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a default in the payment of the principal of, or premium, if any, or interest on, any debt security of that series; or
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a default of a provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series.
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Without the consent of any holder of debt security, the indentures or the debt securities may be amended to provide for assumption of
our obligations to holders of debt securities in the event of a merger or consolidation requiring such assumption; to cure any ambiguity, omission, defect or inconsistency; to conform the terms of the debt securities to the description thereof in
the prospectus and prospectus supplement offering such debt securities; to create a series and establish its terms; to provide for assumption of our obligations to holders of debt securities in the event of a merger or consolidation requiring such
assumption; to make any change that does not adversely affect the rights of any holders of debt security; to add to our covenants; or to make any other change to the indentures so long as no debt securities are outstanding.
Special rules for action by holders
Only holders of
outstanding debt securities of the applicable series will be eligible to take any action under the applicable indenture, such as giving a notice of default, declaring an acceleration, approving any change or waiver or giving the trustee an
instruction with respect to debt securities of that series. Also, we will count only outstanding debt securities in determining whether the various percentage requirements for taking action have been met. Any debt securities owned by us or any of
our affiliates or surrendered for cancellation or for payment or redemption of which money has been set aside in trust are not deemed to be outstanding.
In some situations, we may follow special rules in calculating the principal amount of debt securities that are to be treated as outstanding for the purposes
described above. This may happen, for example, if the principal amount is payable in a non-U.S. dollar currency, increases over time or is not to be fixed until maturity.
We will generally be entitled to set any day as a record date for the purpose of determining the holders that are entitled to take action under either indenture. In certain limited circumstances, only the trustee
will be entitled to set a record date for action by holders. If we or the trustee sets a record date for an approval or other action to be taken by holders, that vote or action may be taken only by persons or entities who are holders on the record
date and must be taken during the period that we specify for this purpose, or that the trustee specifies if it sets the record date. We or the trustee, as applicable, may shorten or lengthen this period from time to time. This period, however, may
not extend beyond the 180th day after the record date for the action. In addition, record dates for any global debt security may be set in accordance with procedures established by the depositary from time to time. Accordingly, record dates for
global debt securities may differ from those for other debt securities.
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Guarantees
The
debt securities of any series may be guaranteed by one or both of our subsidiaries: Circle B Land Company LLC and Aurora Gathering, LLC. However, the applicable indenture governing the debt securities will not require that any of our subsidiaries be
a guarantor of any series of debt securities and will permit the guarantors for any series of guaranteed debt securities to be different from any of the subsidiaries listed above under General. As a result, a series of debt
securities may not have any guarantors and the guarantors of any series of guaranteed debt securities may differ from the guarantors of any other series of guaranteed debt securities. If the Company issues a series of guaranteed debt securities, the
identity of the specific guarantors of the debt securities of that series will be identified in the applicable prospectus supplement.
If the Company
issues a series of guaranteed debt securities, a description of some of the terms of guarantees of those debt securities will be set forth in the applicable prospectus supplement. Unless otherwise provided in the prospectus supplement relating to a
series of guaranteed debt securities, each guarantor of the debt securities of such series will unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest, if any, on each debt security of such
series, all in accordance with the terms of such debt securities and the applicable indenture.
Notwithstanding the foregoing, unless otherwise provided
in the prospectus supplement relating to a series of guaranteed debt securities, the applicable indenture will contain provisions to the effect that the obligations of each guarantor under its guarantees and such indenture will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such guarantor, result in the obligations of such guarantor under such guarantees and such indenture not constituting a fraudulent conveyance or fraudulent
transfer under applicable law. However, there can be no assurance that, notwithstanding such limitation, a court would not determine that a guarantee constituted a fraudulent conveyance or fraudulent transfer under applicable law. If that were to
occur, the court could void the applicable guarantors obligations under that guarantee, subordinate that guarantee to other debt and other liabilities of that guarantor or take other action detrimental to holders of the debt securities of the
applicable series, including directing the holders to return any payments received from the applicable guarantor.
Unless otherwise provided in the
prospectus supplement relating to a series of guaranteed debt securities, the applicable indenture will (i) provide that, upon the sale or disposition (by merger or otherwise) of any guarantor, (x) if the transferee is not an affiliate of
the Company, such guarantor will automatically be released from all obligations under its guarantee of such debt securities or (y) otherwise, the transferee (if other than the Company or another guarantor) will assume the guarantors
obligations under its guarantee of such debt securities and (ii) permit us to cause the guarantee of any guarantor of such debt securities to be released at any time if we satisfy such conditions, if any, as are specified in the prospectus
supplement for such debt securities.
The applicable prospectus supplement relating to any series of guaranteed debt securities will specify other terms
of the applicable guarantees.
If the applicable prospectus supplement relating to a series of our senior debt securities provides that those senior debt
securities will have the benefit of a guarantee by any or all of our subsidiaries identified herein, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the unsubordinated and unsecured obligation of the
applicable guarantor and will rank equally in right of payment with all of the unsecured and unsubordinated indebtedness of such guarantor.
Any
guarantee of any debt securities will be effectively subordinated to all existing and future secured indebtedness of the applicable guarantor, including any secured guarantees of other Company debt, to the extent of the value of the collateral
securing that indebtedness. Consequently, in the event of a bankruptcy, or
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similar proceeding with respect to any guarantor that has provided a guarantee of any debt securities, the holders of that guarantors secured indebtedness will be entitled to proceed
directly against the collateral that secures that secured indebtedness and such collateral will not be available for satisfaction of any amount owed by such guarantor under its unsecured indebtedness, including its guarantees of any debt securities,
until that secured debt is satisfied in full. Unless otherwise provided in the applicable prospectus supplement, the indenture will not limit the ability of any guarantor to incur secured indebtedness.
If the applicable prospectus supplement relating to a series of our subordinated debt securities provides that those subordinated debt securities will have the
benefit of a guarantee by any or all of our subsidiaries identified herein, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the subordinated and unsecured obligation of the applicable guarantor and, in
addition to being effectively subordinated to secured debt of such guarantor, will be subordinated in right of payment to all of such guarantors existing and future senior indebtedness, including any guarantee of the senior debt securities, to
the same extent and in the same manner as the subordinated debt securities are subordinated to our senior debt. See Subordination Provisions above.
Paying agents
We may appoint one or more financial institutions to act as our paying agents, at whose
designated offices debt securities in non-global entry form may be surrendered for payment at their maturity. We call each of those offices a paying agent. We may add, replace or terminate paying agents from time to time. We may also choose to act
as our own paying agent. We will specify in the prospectus supplement for your debt security the initial location of each paying agent for that debt security. We must notify the trustee of changes in the paying agents.
Regardless of who acts as paying agent, all money paid by us to a paying agent that remains unclaimed at the end of two years after the amount is due to a holder
will be repaid to us. After that two-year period, the holder may look only to us for payment and not to the trustee, any other paying agent or anyone else.
Notices
Notices to be given to holders of a global debt security will be given only to the depositary, in
accordance with its applicable policies as in effect from time to time. Notices to be given to holders of debt securities not in global form will be sent by mail to the respective addresses of the holders as they appear in the trustees
records, and will be deemed given when mailed. Neither the failure to give any notice to a particular holder, nor any defect in a notice given to a particular holder, will affect the sufficiency of any notice given to another holder.
Book-entry and other indirect owners should consult their banks or brokers for information on how they will receive notices.
No protection in the event of a change of control
Unless we
state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged
transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
No personal
liability of directors, officers, employees or stockholders
None of our past, present or future directors, officers, employees or stockholders, as
such, will have any liability for any of our obligations under the debt securities or the indenture or for any claim based on, or in respect or
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by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the
issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Our relationship with the trustee
The prospectus supplement
for your debt security will describe any material relationships we may have with the trustee with respect to that debt security. The trustee under our existing indentures is an affiliate of one of a number of banks with which we maintain ordinary
banking relationships.
The same financial institution may initially serve as the trustee for our senior debt securities and subordinated debt
securities. Consequently, if an actual or potential event of default occurs with respect to any of these securities, the trustee may be considered to have a conflicting interest for purposes of the Trust Indenture Act of 1939. In that case, the
trustee may be required to resign under one or more of the indentures, and we would be required to appoint a successor trustee. For this purpose, a potential event of default means an event that would be an event of default if the
requirements for giving us a default notice or for the default having to exist for a specific period of time were disregarded.
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Description of capital stock
As of the date of this prospectus, we are authorized to issue up to 150,000,000 shares of common stock of $.001 par value, and 75,000,000 shares of preferred stock, par value $.001 per share. As of June 24, 2015,
there were 49,955,026 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
The following summary of
certain provisions of our capital stock does not purport to be complete and is not intended to give full effect to provisions of statutory or common law. The summary is subject to and is qualified in its entirety by reference to all the provisions
of our amended and restated certificate of incorporation and amended and restated bylaws, copies of which are filed as exhibits to the registration statement of which this prospectus is a part, and by the provisions of applicable law.
Common stock
Each share of common stock is entitled to one
vote on all matters presented to the holders of common stock. Cumulative voting is not allowed in the election of directors or for any other purpose, and the holders of common stock have no preemptive rights, redemption rights or rights of
conversion with respect to the common stock. All outstanding shares of common stock are fully paid and nonassessable. The holders of common stock are entitled to receive dividends when, as and if declared by our board of directors, out of funds
legally available for their payment subject to the rights of holders of any preferred stock outstanding. Upon the liquidation, dissolution or winding up of our company, the holders of our common stock are entitled to receive ratably our net assets
available after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Our board of directors is authorized to issue additional shares of common stock within the limits authorized by our
amended and restated certificate of incorporation and without stockholder action.
Our common stock is listed on the New York Stock Exchange (the
NYSE) under the symbol BBG.
Preferred stock
The preferred stock may carry such relative rights, preferences and designations as may be determined by our board of directors in its sole discretion upon the issuance of any shares of preferred stock. The shares
of preferred stock could be issued from time to time by the board of directors in its sole discretion (without further approval or authorization by the stockholders), in one or more series, each of which series could have any particular distinctive
designations as well as relative rights and preferences as determined by the board of directors. The relative rights and preferences that may be determined by the board of directors in its discretion from time to time, include but are not limited to
the following:
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the rate of dividend and whether the dividends are to be cumulative and the priority, if any, of dividend payments relative to other series in the class;
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whether the shares of any such series may be redeemed, and if so, the redemption price and the terms and conditions of redemption;
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the amount payable with respect to such series in the event of voluntary or involuntary liquidation; the priority, if any, of each series relative to other
series in the class with respect to amounts payable upon liquidation; and the sinking fund provisions, if any, for the redemption or purchase of the shares of that series; and
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the terms and conditions, if any, on which the shares of a series may be converted into or exchanged for shares of any class, whether common or preferred, or
into shares of any series of the same class, and if provision is made for conversion or exchange, the times, prices, rates, adjustments and other terms.
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The existence of authorized but unissued shares of preferred stock could have anti-takeover effects because we could issue preferred stock with special dividend or voting rights that could discourage potential
bidders.
As a result, the Company may issue shares of preferred stock that have dividend, voting and other rights superior to those of the common stock,
or that convert into shares of common stock, without the approval of the holders of common stock. This could result in the dilution of the voting rights, ownership and liquidation value of current stockholders.
Anti-takeover effects of delaware law, our amended and restated certificate of incorporation and amended and restated bylaws
General
Our amended and restated certificate of
incorporation and amended and restated bylaws contain the following additional provisions, some of which are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated
by our board of directors. In addition, some provisions of the Delaware General Corporation Law (DGCL), if applicable to us, may hinder or delay an attempted takeover without prior approval of our board of directors. Provisions of the
DGCL and of our amended and restated certificate of incorporation and amended and restated bylaws could discourage attempts to acquire us or remove incumbent management even if some or a majority of our stockholders believe this action is in their
best interest. These provisions could, therefore, prevent stockholders from receiving a premium over the market price for the shares of common stock they hold. However, we no longer have a classified board of directors.
Filling board of directors vacancies; removal
Our
amended and restated bylaws provide that newly created directorships resulting from any increase in the authorized number of directors and vacancies may be filled by the affirmative vote of a majority of our directors then in office, though less
than a quorum.
Our directors may be removed, with or without cause, by the affirmative vote of a majority of the shares entitled to vote at an election
of directors, if notice of the intention to act upon such matter is given in the notice calling such meeting.
No stockholder action by written
consent
Our amended and restated certificate of incorporation precludes stockholders from initiating or effecting any action by written consent
and thereby taking actions opposed by the board of directors.
Call of special meetings
Our amended and restated bylaws provide that special meetings of our stockholders may be called at any time only by the board of directors acting pursuant to a
resolution adopted by the board and not the stockholders.
Advance notice requirements for stockholder proposals and director nominations
Our amended and restated bylaws provide that stockholders seeking to bring business before or to nominate candidates for election as directors
at an annual meeting of stockholders must provide timely notice of their
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proposal in writing to the corporate secretary. To be timely, a stockholders notice must be delivered to our corporate secretary at our principal executive offices no later than the 60th
day or earlier than the 90th day before the first anniversary of the preceding years annual meeting. If, however, no meeting was held in the prior year or the date of the annual meeting has been changed by more than 30 days from the date
contemplated in the notice of annual meeting, notice by the stockholder in order to be timely must be received no later than the close of business on the 90th day before the annual meeting or the tenth day following the day on which the date of the
annual meeting is publicly announced. Our amended and restated bylaws also specify requirements as to the form and content of a stockholders notice. These provisions may preclude stockholders from bringing matters before an annual meeting of
stockholders or from making nominations for directors at an annual meeting of stockholders or may discourage or defer a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to
obtain control of us.
No cumulative voting
The DGCL provides that stockholders are not entitled to cumulate votes in the election of directors unless our certificate of incorporation provides otherwise. Our
amended and restated certificate of incorporation does not expressly provide for cumulative voting. Under cumulative voting, a minority stockholder holding a sufficient percentage of a class of shares may be able to ensure the election of one or
more directors.
Authorized but unissued shares
Our amended and restated certificate of incorporation provides that the authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to
various limitations imposed by the NYSE. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of
authorized but unissued shares of common stock and preferred stock could make it more difficult or discourage an attempt to obtain control of our Company by means of a proxy contest, tender offer, merger or otherwise.
Delaware anti-takeover statute
We are subject to
Section 203 of the DGCL, an anti-takeover law. In general, this section prevents certain Delaware corporations under certain circumstances from engaging in a business combination with an interested stockholder
(generally, a holder of 15% or more of the outstanding voting stock of the corporation). A business combination includes a merger or sale of 10% or more of our assets. However, the above provisions of Section 203 do not apply if
(1) our board approves the transaction; (2) after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting stock outstanding at the
time the transaction commenced, excluding shares owned by our officers and directors and certain employee benefit plans; or (3) on or subsequent to the date of the transaction, the business combination is approved by our board and authorized at
a meeting of our stockholders by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder. This statute could prohibit or delay mergers or other change in control attempts, and
thus may discourage attempts to acquire us.
Transfer agent and registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
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Description of depositary shares
We may offer depositary shares (either separately or together with other securities) representing fractional shares of preferred stock of any series. In connection
with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts
issued pursuant to the related deposit agreement. Immediately following our issuance of the security related to the depositary shares, we will deposit the shares of preferred stock with the relevant depositary and will cause the depositary to issue,
on our behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fraction of a share of preferred stock represented by the related depositary
share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange,
redemption, sinking fund, repayment at maturity, subscription and liquidation rights).
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Description of rights
We may issue rights to purchase common stock, preferred stock or other securities. These rights may be issued independently or together with any other security offered hereby and may or may not be transferable by
the stockholder receiving the rights in such offering. In connection with any offering of such rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers
may be required to purchase any securities remaining unsubscribed for after such offering.
Each series of rights will be issued under a separate rights
agreement which we will enter into with a bank or trust company, as rights agent, all as set forth in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the certificates relating to the rights and
will not assume any obligation or relationship of agency or trust with any holders of rights certificates or beneficial owners of rights. We will file the rights agreement and the rights certificates relating to each series of rights with the SEC
and incorporate them by reference as an exhibit to the registration statement of which this prospectus is a part on or before the time we issue a series of rights.
The applicable prospectus supplement will describe the specific terms of any offering of rights for which this prospectus is being delivered, including the following:
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the date of determining the stockholders entitled to the rights distribution;
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the number of rights issued or to be issued to each stockholder;
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the exercise price payable for each share of common stock, preferred stock or other securities upon the exercise of the rights;
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the number and terms of the shares of common stock, preferred stock or other securities which may be purchased per each right;
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the extent to which the rights are transferable;
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the date on which the holders ability to exercise the rights shall commence, and the date on which the rights shall expire;
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the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights; and
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any other terms of the rights, including the terms, procedures, conditions and limitations relating to the exchange and exercise of the rights.
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The description in the applicable prospectus supplement of any rights that we may offer will not necessarily be complete and will be
qualified in its entirety by reference to the applicable rights certificate, which will be filed with the SEC.
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Description of securities warrants
We may issue securities warrants for the purchase of debt securities, preferred stock, depositary shares or common stock. Securities warrants may be issued
independently or together with debt securities, preferred stock, depositary shares or common stock offered by any prospectus supplement and may be attached to or separate from any such offered securities. Each series of securities warrants will be
issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, all as set forth in a prospectus supplement relating to the particular issue of securities warrants. The securities warrant agent
will act solely as our agent in connection with the securities warrants and will not assume any obligation or relationship of agency or trust for or with any holders of securities warrants or beneficial owners of securities warrants.
The following is a summary of certain general terms and provisions of the warrants, but they are not complete and are subject to, and are qualified in their
entirety by reference to, the warrant agreement and the warrant certificate relating to the warrants. Forms of these documents will be filed as exhibits to the registration statement of which this prospectus is a part, either by an amendment to the
registration statement or by a Current Report on Form 8-K.
A prospectus supplement relating to a particular issue of securities warrants will contain
the terms of and information relating to that issue of securities warrants, including, where applicable:
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the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable upon exercise of securities
warrants to purchase debt securities and the price at which such debt securities may be purchased upon such exercise;
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the number of shares of common stock purchasable upon the exercise of securities warrants to purchase common stock and the price at which such number of shares
of common stock may be purchased upon such exercise;
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the number of shares and series of preferred stock or depositary shares purchasable upon the exercise of securities warrants to purchase preferred stock or
depositary shares and the price at which such number of shares of such series of preferred stock or depositary shares may be purchased upon such exercise;
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the date on which the right to exercise such securities warrants shall commence and the date on which such right shall expire;
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U.S. federal income tax consequences applicable to such securities warrants;
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the amount of securities warrants outstanding as of the most recent practicable date; and
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any other terms of such securities warrants.
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Securities warrants will be issued in registered form only. The exercise price for securities warrants will be subject to adjustment in accordance with a prospectus
supplement relating to the particular issue of securities warranties.
Each securities warrant will entitle the holder thereof to purchase such principal
amount of debt securities or such number of shares of common stock, preferred stock or depositary shares at such exercise price as shall in each case be set forth in, or calculable from, a prospectus supplement relating to the securities warrants,
which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such prospectus supplement. After the close of business on the expiration date, or such later date to which such expiration date may be extended
by us, unexercised securities warrants will become void. The place or places where, and the manner in which, securities warrants may be exercised shall be specified in a prospectus supplement relating to such securities warrants.
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Prior to the exercise of any securities warrants to purchase debt securities, common stock, preferred stock or
depositary shares, holders of such securities warrants will not have any of the rights of holders of debt securities, common stock, preferred stock or depositary shares, as the case may be, purchasable upon such exercise, including the right to
receive payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon such exercise or to enforce covenants in any applicable indenture, or to receive payments of dividends, if any, on the common stock,
preferred stock or depositary shares purchasable upon such exercise, or to exercise any applicable right to vote.
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Description of stock purchase contracts and stock purchase units
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and obligating us to sell to holders, a specified number of
shares of common stock or other securities offered hereby at a future date or dates, which we refer to in this prospectus as stock purchase contracts. The price per share of the securities and the number of shares of the securities may
be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as part of units consisting of a
stock purchase contract and debt securities, preferred securities, warrants or other securities that are registered hereunder, securing the holders obligations to purchase the securities under the stock purchase contracts, which we refer to
herein as stock purchase units. The stock purchase contracts may require holders to secure their obligations under the stock purchase contracts in a specified manner. The stock purchase contracts also may require us to make periodic
payments to the holders of the stock purchase units or vice versa, and those payments may be unsecured or refunded on some basis. The purchase contracts may be convertible into or exercisable for common or preferred stock or other securities of ours
or debt or equity securities of one or more other entities.
An accompanying prospectus supplement will describe the terms of the stock purchase
contracts or stock purchase units and, if applicable, collateral or depositary arrangements relating to the stock purchase contracts or stock purchase units. Material United States federal income tax considerations applicable to the stock purchase
units and the stock purchase contracts will also be discussed in the applicable prospectus supplement.
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Plan of distribution
We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters or dealers, through agents,
directly to one or more purchasers or through any other method permitted by law. The securities may be distributed from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each time that we sell
securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of
the securities and the proceeds to us.
Offers to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be
designated to solicit offers to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale of the securities being offered by this
prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the
public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise
indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the
Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any shares of common stock will be listed on the NYSE or another national stock exchange, but any other securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of
the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open
market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or
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maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the
offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at any time.
If indicated in the applicable prospectus supplement,
underwriters or other persons acting as agents may be authorized to solicit offers by institutions or other suitable purchasers to purchase the securities at the public offering price set forth in the prospectus supplement, pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. These purchasers may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. Delayed delivery contracts will be subject to the condition that the purchase of the securities covered by the delayed delivery contracts will not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which the purchaser is subject. The underwriters and agents will not have any responsibility with respect to the validity or performance of these contracts.
We may engage in at-the-market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into
derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales
or to close out any related open borrowings of securities, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an
underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party
that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a
concurrent offering of other securities.
We may also make direct sales through subscription rights distributed to our existing stockholders on a pro
rata basis, which may or may not be transferable. In any distribution of subscription rights to our stockholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or
may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
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Legal matters
The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Akin Gump Strauss Hauer & Feld, LLP. The validity of certain of the offered securities and other
matters arising under Colorado law will be passed on for us by Kenneth A. Wonstolen, our Senior Vice PresidentGeneral Counsel. Mr. Wonstolen beneficially owns 13,630 shares of our common stock as of June 24, 2015. Additional legal matters may
be passed on for us, or for any underwriters, dealers or agents, by counsel we will name in the applicable prospectus supplement.
Experts
The financial statements incorporated in this prospectus by reference from the Companys Annual Report on Form 10-K and the
effectiveness of the Companys internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference.
Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
Certain information regarding our estimates of the oil and gas reserves associated with our oil and gas prospects incorporated by reference in this prospectus is reviewed by Netherland, Sewell &
Associates, Inc., an independent petroleum engineering firm. The description of the review of such estimates is incorporated by reference into this prospectus upon the authority of said firm as an expert in these matters.
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13,500,000 Shares
Common stock
Prospectus supplement
Sole Bookrunner
J.P. Morgan
Co-managers
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Deutsche Bank Securities
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Scotia Howard Weil
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December 6, 2016