McMoRan
Exploration Co.
(Exact
Name of Registrant as Specified in its Charter)
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Delaware
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72-1424200
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
Number)
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1615
Poydras Street
New
Orleans, Louisiana 70112
(504)
582-4000
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(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive
Offices)
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Kathleen
L. Quirk
Senior
Vice President and Treasurer
McMoRan
Exploration Co.
1615
Poydras Street
New
Orleans, Louisiana 70112
(504)
582-4000
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(Name,
Address, Including Zip Code, and Telephone Number, Including Area
Code, of
Agent for Service)
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Copy
to:
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Douglas
N. Currault II
Jones,
Walker, Waechter, Poitevent, Carrère & Denègre,
L.L.P.
201
St. Charles Ave
New
Orleans, Louisiana 70170
(504)
589-8412
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Approximate
date of commencement of proposed sale to the public
: From time to time
after the effective date of this registration statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, check the following box.
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
(1)
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Amount
to be
Registered
(2)
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Proposed
Maximum Aggregate Price Per
Unit
(3)
(4)
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Proposed
Maximum Aggregate Offering
Price
(3)
(4)
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Amount
of
Registration
Fee
(4)
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Common
Stock, $0.01 par value per share
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Preferred
Stock, $0.01 par value per share
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Debt
Securities
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Warrants
(5)
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Purchase
Contracts
(6)
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Units
(7)
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Total
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$1,500,000,000
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$46,050
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(1)
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These
offered securities may be sold separately, together or as units with
other
offered securities.
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(2)
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An
indeterminate number or amount of common stock, preferred stock,
debt
securities, warrants, purchase contracts and units of McMoRan Exploration
Co., as may from time to time be issued at indeterminate prices,
in U.S.
Dollars or the equivalent thereof denominated in foreign currencies
or
units of two or more foreign currencies or composite currencies,
is being
registered pursuant to this registration statement. In no event will
the
aggregate maximum offering price of all securities issued pursuant
to this
registration statement exceed $1,500,000,000, or if any debt securities
are issued with original issue discount, such greater amount as will
result in an aggregate offering price of
$1,500,000,000.
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(3)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(o) of the Securities
Act.
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(4)
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Pursuant
to Rule 457(o) under the Securities Act, which permits the registration
fee to be calculated on the basis of the maximum offering price of
all the
securities listed, the table does not specify by each class information
as
to the amount to be registered, proposed maximum offering price per
unit
or proposed maximum aggregate offering price. The aggregate public
offering price of securities sold will not exceed $1,500,000,000
(see Note
2 above). Unless otherwise indicated in an amendment to this filing,
no
separate consideration will be received for common stock or debt
securities that are issued upon conversion or exchange of debt securities
registered hereunder.
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(5)
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Includes
warrants to purchase our debt or equity securities or securities
of third
parties or other rights.
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(6)
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Includes
an indeterminable number of debt or equity securities issued by us
or
securities of third parties, a basket of such securities, an index
or
indices of such securities or any combination thereof; currencies;
or
commodities.
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(7)
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Includes
an indeterminable number of units consisting of two or more securities
described in this prospectus, in any
combination.
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The
registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the registrant shall file
a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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_________________________
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The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities nor a solicitation of an offer to buy these securities in
any
jurisdiction where the offer and sale is not permitted.
PROSPECTUS
Subject
to Completion Dated October 3, 2007
$1,500,000,000
McMoRan
Exploration Co.
Common
Stock, Preferred Stock, Debt Securities,
Warrants,
Purchase Contracts and Units
We
may
from time to time sell any combination of common stock, preferred stock, debt
securities, warrants, purchase contracts and units described in this prospectus
in one or more offerings. The aggregate initial offering price of all securities
sold under this prospectus will not exceed $1,500,000,000. The preferred stock,
debt securities, warrants and units described in this prospectus may be
convertible into or exercisable or exchangeable for common stock or preferred
stock or other securities. The securities offered by this prospectus may be
sold
separately or sold as units with other securities offered hereby.
This
prospectus provides a general description of the securities we may offer. Each
time we sell securities, we will provide specific amounts, prices and terms
of
the securities offered in a supplement to this prospectus. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read carefully this prospectus and the applicable
prospectus supplement, together with the additional information described below,
before you invest in any securities.
We
may
sell these securities directly to our stockholders or to purchasers or through
underwriters, dealers or other agents as designated from time to time. If any
underwriters or dealers are involved in the sale of any securities offered
by
this prospectus and any prospectus supplement, the prospectus supplement will
set forth their names and any applicable fees, commissions or
discounts.
Our
common stock is listed on the New York Stock Exchange under the trading symbol
“MMR.”
Investing
in these securities involves certain risks. See “Risk Factors” in the
applicable Prospectus Supplement and in our annual report on Form 10-K for
the
year ended December 31, 2006, and in our subsequent quarterly reports, which
are
incorporated by reference herein.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities, or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a
criminal offense.
This
prospectus may not be used to sell securities unless accompanied by a prospectus
supplement.
The
date of this prospectus is October 3, 2007
You
should rely only on the information contained in or incorporated by reference
in
this prospectus. We have not authorized anyone to provide you with
different information. We are not making an offer of these securities
in any state where the offer is not permitted. You should not assume
that the information contained in or incorporated by reference in this
prospectus is accurate as of any date other than the date on the front of this
prospectus. The terms “McMoRan,” “MMR”, “we,” “us,” and “our” refer
to McMoRan Exploration Co. and all entities owned or controlled by McMoRan
Exploration Co.
TABLE
OF CONTENTS
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Page
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About
This Prospectus
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1
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McMoRan
Exploration Co
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1
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Use
of Proceeds
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1
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Ratio
of Earnings to Fixed Charges
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3
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Description
of McMoRan Capital Stock
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4
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Description
of Debt Securities
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9
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Description
of Warrants
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16
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Description
of Purchase Contracts
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16
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Description
of Units
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Forms
of Securities
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Plan
of Distribution
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Where
You Can Find More Information
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Information
Concerning Forward-Looking Statements
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20
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Legal
Opinions
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Experts
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21
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Reserves
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, utilizing a “shelf” registration
process. Under this shelf process, we may 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. Each time we sell securities, we will
provide a prospectus supplement that will contain specific information about
the
amounts, prices and terms of the securities offered. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
“Where You Can Find More Information.”
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.
McMoRan
EXPLORATION CO.
We
engage
in the exploration, development and production of oil and natural gas offshore
in the Gulf of Mexico and onshore in the Gulf Coast area. We have one of the
largest acreage positions in the shallow waters of the Gulf of Mexico and Gulf
coast areas, which are our regions of focus. Our oil and gas operations are
conducted through McMoRan Oil & Gas LLC (MOXY), our principal operating
subsidiary. Since 2004, we have participated in 17 discoveries on 31 prospects
that have been drilled and evaluated, including four discoveries announced
in
2007. We recently announced a potentially significant discovery called Flatrock
on OCS Block 310 at South Marsh Island Block 212. Four additional prospects
are
either in progress or not fully evaluated.
On
August 6, 2007, we completed our acquisition of
substantially
all of the proved property interests and related assets of Newfield Exploration
Company (“Newfield”) on the outer continental shelf of the Gulf of Mexico for
total cash consideration of approximately $1.08 billion and the assumption
of
the related reclamation obligations. This acquisition had an effective date
of
July 1, 2007.
We
conduct substantially all of our operations in the shallow waters of the Gulf
of
Mexico, commonly referred to as the “shelf,” and onshore in the Gulf coast
region. We believe that we have significant exploration opportunities
in large, deep geologic structures located beneath the shallow waters of the
Gulf of Mexico shelf and often lying below shallow reservoirs where significant
reserves have been produced, commonly referred to as “deep gas” or the “deep
shelf” (from below 15,000 feet to 25,000 feet). Our acquisition of the Newfield
properties significantly enhances our portfolio of shelf opportunities by
increasing our gross acreage position, increasing our deep gas exploration
potential, providing access to new “ultra deep” opportunities (below 25,000
feet) and establishing us as one of the largest producers in the “traditional
shelf” (above 15,000 feet) of the Gulf of Mexico. Further, our shelf prospects
are in proximity to existing oil and gas infrastructure, which generally allows
production to be brought on line quickly and at lower development
costs.
In
addition to our oil and gas operations, we are pursuing the development of
the
Main Pass Energy Hub
™
(MPEH
™
)
project for the development of an LNG regasification and storage facility
through our other wholly-owned subsidiary, Freeport-McMoRan Energy LLC (Freeport
Energy). The MPEH
™
project is located at our Main Pass facilities located offshore in the Gulf
of
Mexico, 38 miles east of Venice, Louisiana. Following an extensive review,
the
Maritime Administration (MARAD) approved our license application for the
MPEH
™
project
in January 2007. The MPEH
™
facility
is approved with a capacity of regasifying LNG at a peak rate of 1.6 Bcf per
day, storing 28 Bcf of natural gas in salt caverns and delivering 3.1 Bcf of
natural gas per day, including gas from storage, to the U.S.
market.
Our
principal executive offices are located at 1615 Poydras Street, New Orleans,
Louisiana 70112, and our telephone number is (504) 582-4000. Our website is
located at
www.mcmoran.com
.
The information on
our website is not part of this prospectus.
USE
OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, the net proceeds
from the sale of the securities will be used for general corporate purposes,
including working capital, acquisitions, retirement of debt and other business
opportunities.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table sets forth our ratio of earnings to fixed charges for the
periods indicated.
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Six
Months Ended
June
30,
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Ratio
of earnings to fixed charges
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(a)
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(a)
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(a)
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(a)
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(a)
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20.2x
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Ratio
of earnings to fixed charges and preferred stock dividends
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(b)
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(b)
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(b)
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(b)
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(b)
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10.3x
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(a)
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We
sustained a net loss from continuing operations of $21.1 million
in the
six months ended June 30, 2007, $44.7 million in 2006, $31.5 million
in
2005, $52.0 million in 2004 and $41.8 million in 2003. We did not
have any
earnings from continuing operations to cover our fixed charges of
$7.2
million for the six-month period ended June 30, 2007, $15.5 million
in
2006, $17.5 million in 2005, $11.2 million in 2004 and $4.7 million
in
2003.
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(b)
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We
did not have any earnings from continuing operations to cover our
charges
and preferred stock dividends of $7.2 million for the six months
ended
June 30, 2007, $17.0 million in 2006, $19.0 million in 2005, $12.7
million
in 2004 and $6.3 million in 2003.
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For
the
ratio of earnings to fixed charges calculation, earnings consist of income
(loss) from continuing operations and fixed charges. Fixed charges
include interest and that portion of rent deemed representative of
interest. For the ratio of earnings to fixed charges and preferred
stock dividends calculation, we assumed that our preferred stock dividend
requirements were equal to the earnings that would be required to cover those
dividend requirements.
DESCRIPTION
OF McMoRan CAPITAL STOCK
This
section describes the general terms and provisions of the capital stock offered
by this prospectus. The applicable prospectus supplement will
describe the specific terms of the capital stock offered under that applicable
prospectus supplement and any general terms outlined in this section that will
not apply to the capital stock.
The
following summary of the terms of our capital stock is not meant to be complete
and is qualified by reference to the relevant provisions of the General
Corporation Law of the State of Delaware, or the DGCL, and our amended and
restated certificate of incorporation and our amended and restated
bylaws. Copies of our amended and restated certificate of
incorporation and our amended and restated bylaws are incorporated herein by
reference and will be sent to you at no charge upon request. See
“Where You Can Find More Information” below.
As
of the date of this prospectus, our amended and restated
certificate of incorporation authorizes us to issue up to 150,000,000 shares
of
common stock, par value $0.01 per share, and up to 50,000,000 shares of
preferred stock, par value $0.01 per share. As of August 31, 2007, 34.7 million
shares of our common stock were issued and outstanding (not including the 2.5
million shares held in treasury).
In
addition, as of August 31, 2007, we had options exercisable for an aggregate
7.9
million shares of our common stock outstanding at an average exercise price
of
$15.01 per share. Moreover, as of August 31, 2007, our outstanding 6%
Convertible Senior Notes were convertible into approximately 7.1 million shares
of our common stock at a conversion price of $14.25 per share, and our
outstanding 5 1/4% Convertible Senior Notes were convertible into approximately
6.9 million shares of our common stock at a conversion price of $16.575 per
share. Furthermore, we have warrants outstanding to purchase approximately
2.5
million shares of our common stock at an exercise price of $5.25 per share
with
1.74 million of these warrants scheduled to expire in December 2007 and the
remainder scheduled to expire in September 2008.
Common
Stock
Common
Stock Outstanding.
The issued and outstanding shares of common
stock are, and the shares of common stock that we may issue in the future will
be, validly issued, fully paid and nonassessable, and not subject to any
preemptive or other similar right.
Voting
Rights.
Each holder of our common stock is entitled to one vote
for each share of common stock held of record on all matters as to which
stockholders are entitled to vote. Holders of our common stock may not cumulate
votes for the election of directors.
Dividend
Rights; Rights upon Liquidations.
Subject to the preferences
accorded to the holders of any series of preferred stock if and when issued
by
the board of directors, holders of our common stock are entitled to dividends
at
such times and amounts as the board of directors may determine. We have
not in the past paid, and do not anticipate paying in the foreseeable future,
cash dividends on our common stock. In the event of a voluntary or involuntary
liquidation, dissolution or winding up of our company, prior to any
distributions to the holders of our common stock, our creditors will receive
any
payments to which they are entitled. Subsequent to those payments, the holders
of our common stock will share ratably, according to the number of shares held
by them, in our remaining assets, if any.
Other
Rights
.
Shares of our common stock are not redeemable or subject
to any sinking fund provisions, and have no subscription, conversion or
preemptive rights.
Transfer
Agent.
The transfer agent and registrar for the common stock is
Mellon Investor Services LLC.
NYSE.
Our
common stock is listed on the New York Stock Exchange under the symbol
“MMR.”
Preferred
Stock
Our
board
of directors may authorize the issuance of preferred stock with voting or
conversion rights that adversely affect the voting power or other rights of
our
common stockholders. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions, financings and other
corporate purposes, could have the effect of delaying, deferring or preventing
our change in control and may cause the market price of our common stock to
decline or impair the voting and other rights of the holders of our common
stock.
Prior
to the issuance of shares of preferred stock of each series, we are required
to
file a certificate of designation with the Secretary of State of the State
of
Delaware. The certificate of designation fixes for each class or series the
designations, powers, preferences, rights, qualifications, limitations and
restrictions, including, but not limited to, the following:
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the
number of shares constituting each class or
series;
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rights
and terms of redemption (including sinking fund
provisions);
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dividend
rights and rates;
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terms
concerning the distribution of
assets;
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conversion
or exchange terms;
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liquidation
preferences.
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All
shares of preferred stock offered hereby will, when issued, be fully paid and
non-assessable and will not have any preemptive or similar rights. We will
set
forth in a prospectus supplement relating to the class or series of preferred
stock being offered the following terms:
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the
title or series and stated value of the preferred
stock;
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the
number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred
stock;
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred
stock;
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whether
dividends are cumulative or non-cumulative and, if cumulative, the
date
from which dividends on the preferred stock will
accumulate;
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the
procedures for any auction and remarketing, if any, for the preferred
stock;
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the
provisions for a sinking fund, if any, for the preferred
stock;
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the
provision for redemption or repurchase, if applicable, of the preferred
stock;
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any
listing of the preferred stock on any securities
exchange;
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the
terms and conditions, if applicable, upon which the preferred stock
will
be convertible into common stock, including the conversion price
(or
manner of calculation) and conversion
period;
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voting
rights, if any, of the preferred
stock;
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whether
interests in the preferred stock will be represented by depositary
shares;
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a
discussion of any material and/or special United States Federal income
tax
considerations applicable to the preferred
stock;
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the
relative ranking and preferences of the preferred stock as to dividend
rights and rights upon the liquidation, dissolution or winding up
of our
affairs;
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any
limitations on issuance of any class or series of preferred stock
ranking
senior to or on a parity with the class or series of preferred stock
as to
dividend rights and rights upon liquidation, dissolution or winding
up of
our affairs; and
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any
other specific terms, preferences, rights, limitations or restrictions
of
the preferred stock.
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Rank.
Unless
we specify otherwise in the applicable prospectus supplement, the preferred
stock will rank, with respect to dividends and upon our liquidation, dissolution
or winding up:
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senior
to all classes or series of our common stock and to all of our equity
securities ranking junior to the preferred
stock;
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on
a parity with all of our equity securities the terms of which specifically
provide that the equity securities rank on a parity with the preferred
stock; and
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junior
to all of our equity securities the terms of which specifically provide
that the equity securities rank senior to the preferred
stock.
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The
term
“equity securities” does not include convertible debt securities.
Anti-Takeover
Effects of Provisions of our Amended and Restated Certificate of Incorporation
and Amended and Restated Bylaws
Specifically,
our amended and restated certificate of incorporation and amended and restated
bylaws provide for the following:
No
Written Consent of Stockholders
.
Any action
to be taken by our stockholders must be effected at a duly called annual or
special meeting and may not be effected by written consent.
Special
Meetings of Stockholders
.
Special meetings
of our stockholders may be called only by the chairman, co-chairman, or any
vice-chairman of the board of directors, or by our president and chief executive
officer, or by a majority of the members of the board of directors.
Advance
Notice Requirement
.
Stockholder proposals to
be brought before an annual meeting or a special meeting of our stockholders
must comply with advance notice procedures. These advance notice procedures
require timely notice and apply in several situations, including stockholder
proposals relating to the nominations of persons for election to the board
of
directors.
Supermajority
Voting/Fair Price Requirements
. Our amended and restated
certificate of incorporation provides that a supermajority vote of our
stockholders and the approval of our directors is required in connection with
certain transactions that would result in a change of control of our
company.
Amendment
.
The
affirmative vote of at least 80% of our company's outstanding common stock
is
required to amend, alter, change or repeal by stockholder action the provisions
in our amended and restated certificate of incorporation providing for the
following: the fair price requirements described above; the restriction on
shareholder action by written consent; limitation of liability and
indemnification for officers and directors; and the supermajority vote required
to amend our certificate of incorporation. The affirmative vote of at least
80%
of our company's outstanding common stock is also required to amend our amended
and restated bylaws by stockholder action.
Anti-Takeover
Effects of Certain Provisions of Delaware Law
We
are
subject to Section 203 of the Delaware General Corporation Law, an anti-takeover
law. In general, Section 203 prohibits a Delaware corporation from
engaging in any “business combination” with any “interested stockholder” for a
period of three years following the date that the stockholder became an
interested stockholder, unless:
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prior
to that date, the board of directors of the corporation approved
either
the business combination or the transaction that resulted in the
stockholder becoming an interested
stockholder;
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upon
consummation of the transaction that resulted in the stockholder
becoming
an interested stockholder, the interested stockholder owned at least
85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the
number of
shares of voting stock outstanding (but not the voting stock owned
by the
interested stockholder) those shares owned by persons who are directors
and also officers and by excluding employee stock plans in which
employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer; or
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on
or subsequent to that date, the business combination is approved
by the
board of directors of the corporation and authorized at an annual
or
special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock
that
is not owned by the interested
stockholder.
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Section
203 defines “business combination” to include the following:
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any
merger or consolidation involving the corporation and the interested
stockholder;
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any
sale, transfer, pledge or other disposition of 10% or more of the
assets
of the corporation involving the interested
stockholder;
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subject
to certain exceptions, any transaction that results in the issuance
or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
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any
transaction involving the corporation that has the effect of increasing
the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder;
or
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the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or
through the corporation.
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In
general, Section 203 defines an “interested stockholder” as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the
corporation, or who beneficially owns 15% or more of the outstanding voting
stock of the corporation at anytime within a three year period immediately
prior
to the date of determining whether such person is an interested stockholder,
and
any entity or person affiliated with or controlling or controlled by any of
these entities or persons.
Shareholder
Rights Agreement
Our
board of directors adopted a shareholder rights plan in November 1998 and
amended the plan in December 1998. Our rights plan is designed to deter abusive
takeover tactics and to encourage prospective acquirors to negotiate with our
board of directors rather than attempt to acquire the company in a manner or
on
terms that the board deems unacceptable. Under the rights plan,
we distributed one preferred stock purchase right to each holder of record
of
our common stock at the close of business on November 13, 1998. Once
exercisable, each right will entitle stockholders to buy one one-hundredth
of a
share of our Series A participating cumulative preferred stock, par value $0.01
per share, at a purchase price of $80 per one one-hundredth of a share of Series
A participating cumulative preferred stock. Prior to the time the rights become
exercisable, the rights will be transferred with our common stock.
The
rights do not become exercisable until a person or group acquires 25% or more
of
our common stock or announces a tender offer which would result in that person
or group owning 25% or more of our common stock. However, if the person or
group
that acquires 25% or more of our common stock agrees to “standstill”
arrangements described in the rights plan, the rights will not become
exercisable until the person or group acquires 35% or more of our common
stock.
Once
a
person or group acquires 25% or more (or 35% or more under the conditions
described above) of our common stock, each right will entitle its holder (other
than the acquirer) to purchase, for the $80 purchase price, the number of shares
of common stock having a market value of twice the purchase price. The rights
will also entitle holders to purchase shares of an acquirer’s common stock under
specified circumstances. In addition, the board may exchange rights (other
than
the acquirer’s) for shares of our common stock.
Prior
to
the time a person or group acquires 25% or more (or 35% or more under the
conditions described above) of our common stock, the rights may be redeemed
by
our board of directors at a price of $0.01 per right. As long as the rights
are
redeemable, our board of directors may amend the rights agreement in any
respect. The terms of the rights are set forth in a rights agreement between
us
and Mellon Investor Services LLC, as rights agent. The rights expire on November
13, 2008 (unless extended).
The
rights may cause substantial dilution to a person that attempts to acquire
our
company, unless the person demands as a condition to the offer that the rights
be redeemed or declared invalid. The rights should not interfere with any merger
or other business combination approved by our board of directors because our
board may redeem the rights as described above. The rights are intended to
encourage any person desiring to acquire a controlling interest in our company
to do so through a transaction negotiated with our board of directors rather
than through a hostile takeover attempt. The rights are intended to assure
that
any acquisition of control of our company will be subject to review by our
board
to take into account, among other things, the interests of all of our
stockholders.
For
a
complete description of the foregoing, please refer to our shareholder rights
agreement, which is incorporated herein by reference.
DESCRIPTION
OF DEBT SECURITIES
We
may
issue debt securities from time to time in one or more distinct
series. This section summarizes the terms of the debt securities that
are common to all series. All of the financial terms and other
specific terms of any series of debt securities that we offer will be described
in a prospectus supplement relating to that series of debt
securities. Since the terms of specific debt securities may differ
from the general information we have provided below, you should rely on
information in the applicable prospectus supplement that may modify or replace
any information below. If there are differences between the
applicable prospectus supplement and this prospectus, the prospectus supplement
will control.
We
may
issue senior debt securities under a senior indenture that we will enter into
with a trustee named in the senior indenture. We may issue subordinated debt
securities under a subordinated indenture that we will enter into with a trustee
named in the subordinated indenture. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
We
have filed forms of these documents as exhibits to the registration statement
which includes this prospectus. We use the term “indentures” in this prospectus
to refer to both the senior indenture and the subordinated
indenture.
The
indentures will be qualified under the Trust Indenture Act of 1939, or the
Trust
Indenture Act. We use the term “trustee” to refer to either the senior trustee
or the subordinated trustee, as applicable.
The
following are summaries of the anticipated material provisions of the senior
debt securities, the subordinated debt securities and the indentures and are
subject to, and qualified in their entirety by reference to, all the provisions
of the indenture applicable to a particular series of debt securities. There
may
also be provisions in the indentures which are important to you. We urge you
to
read the indenture applicable to a particular series of debt securities because
it, and not this description, defines your rights as a holder of such debt
securities.
General
We
may
issue debt securities in distinct series. The prospectus supplement relating
to
any series of debt securities will set forth:
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whether
the debt securities will be senior or
subordinated;
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any
limit on the aggregate principal amount that may be
issued;
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the
interest rate(s), which may be fixed or variable, or the method for
determining the interest rate(s), the date(s) interest will accrue,
the
interest payment date(s) and the regular record date(s) or the method
for
determining such date(s);
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the
person who shall be entitled to receive interest, if other than the
record
holder on the record date;
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the
place(s) where payments may be
made;
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any
mandatory or optional redemption
provisions;
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our
right, if any, to defer payment of interest and the maximum length
of any
such deferral period;
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if
applicable, the method for determining how the principal, premium,
if any,
or interest will be calculated by reference to an index or
formula;
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if
other than U.S. currency, the currency or currency units in which
principal, premium, if any, or interest will be payable and whether
we or
the holder may elect payment to be made in a different
currency;
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the
portion of the principal amount that will be payable upon acceleration
of
stated maturity, if other than the entire principal
amount;
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if
the principal amount payable at stated maturity will not be determinable
as of any date prior to stated maturity, the amount which will be
deemed
to be the principal amount;
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any
defeasance provisions if different from those described below under
“—Satisfaction and Discharge;
Defeasance”;
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any
conversion or exchange provisions;
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the
terms and conditions, if any, pursuant to which the notes are
secured;
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any
obligation to redeem or purchase the debt securities pursuant to
a sinking
fund;
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whether
the debt securities will be issuable in the form of a global security
and
the identity of the depositary for the global securities, if different
then described below under “FORMS OF
SECURITIES”;
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any
subordination provisions, if different from those described below
under
“—Subordinated Debt Securities”;
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any
deletions of, or changes or additions to, the events of default or
covenants;
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any
provisions granting special rights to holders when a specified event
occur; and
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any
other specific terms of such debt securities which are not inconsistent
with the provisions of the
indentures.
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Unless
otherwise specified in the prospectus supplement, the debt securities will
be
registered debt securities.
Security
Our
obligations under any debt securities issued may be secured by some or all
of
our assets or by guarantees of one or more of our subsidiaries. The
terms and conditions pursuant to which our debt securities may be secured will
be described in the applicable prospectus supplement.
In
addition, as security for any debt securities issued, we may use the net
proceeds from an offering to acquire U.S. government securities and pledge
those
securities to a trustee for the exclusive benefit of the holders of the debt
securities (and not for the benefit of other creditors). The amount
of U.S. government securities acquired will be sufficient upon receipt of
scheduled interest and principal payments of such securities to provide for
payment in full of a certain number of scheduled interest payments due on the
debt securities. The amount of net proceeds from an offering used to
acquire U.S. government securities and the number of scheduled interest payments
to be secured for a particular offering of debt securities will be described
in
the applicable prospectus supplement. In addition, the terms and
conditions pursuant to which we would pledge the U.S. government securities
for
the benefit of the holders of the debt securities will be described in the
applicable prospectus supplement.
Special
Terms of the Debt Securities
The
debt
securities may be issued as original issue discount securities. An original
issue discount security is a debt security, including any zero-coupon note,
which:
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is
issued at a price lower than the amount payable upon its state maturity;
and
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provides
that upon redemption or acceleration of the maturity, an amount less
than
the amount payable upon the stated maturity shall become due and
payable.
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The
material United Stated federal income tax consequences applicable to debt
securities sold at an original issue discount will be described in the
applicable prospectus supplement.
The
debt
securities of any series may be convertible into or exchangeable for our common
stock or other securities. If so, we will describe the specific terms on which
the debt securities may be converted or exchanged in the applicable prospectus
supplement. The conversion or exchange may be mandatory, at the holder’s option,
or at our option. The applicable prospectus supplement will describe the manner
in which the shares of our common stock or other securities the holder would
receive would be converted or exchanged.
Exchange
and Transfer
Except
as
may be described in the applicable prospectus supplement, debt securities of
any
series will be exchangeable for other debt securities of the same series. Debt
securities may be transferred or exchanged at the office of the security
registrar or at the office of any transfer agent designated by us.
We
will
not impose a service charge for any transfer or exchange, but we may require
holders to pay any taxes, assessments or other governmental charges associated
with any transfer or exchange.
In
the
event of any potential redemption of debt securities of any series, we will
not
be required to:
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issue,
register the transfer of, or exchange, any debt security of that
series
during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption and ending at the close
of
business on the day of the mailing;
or
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register
the transfer of or exchange any debt security of that series selected
for
redemption, in whole or in part, except the unredeemed portion being
redeemed in part.
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We
may
initially appoint the trustee as the security registrar. Any transfer agent,
in
addition to the security registrar, initially designated by us will be named
in
the prospectus supplement. We may designate additional transfer agents or change
transfer agents or change the office of the transfer agent. However, we will
be
required to maintain a transfer agent in each place of payment for the debt
securities of each series.
Payment
and Paying Agent
The
provisions of this paragraph will apply to the debt securities unless otherwise
indicated in the prospectus supplement. Payment of interest on a debt security
on any interest payment date will be made to the person in whose name the debt
security is registered at the close of business on the regular record date.
Payment on debt securities of a particular series will be payable at the office
of a paying agent or paying agents designated by us. However, at our option,
we
may pay interest by mailing a check to the record holder. Unless otherwise
indicated in a prospectus supplement, the corporate trust office of the trustee
in the City of New York will be designated as our sole paying
agent.
We
may
name any other paying agents in the prospectus supplement. We may designate
additional paying agents, change paying agents or change the office of any
paying agent. However, we will be required to maintain a paying agent in each
place of payment for the debt securities of a particular series.
All
moneys paid by us to a paying agent for payment on any debt security which
remain unclaimed at the end of two years after such payment was due will be
repaid to us. Thereafter, the holder may look only to us for such
payment.
Consolidation,
Merger and Sale of Assets
The
indentures may contain covenants that restrict our ability to merge or
consolidate with another person, or sell, convey, transfer or otherwise dispose
of all or substantially all of our assets. Any successor or acquirer of such
assets must assume all of our obligations under the indentures and the debt
securities.
Events
of Default
Unless
we
inform you otherwise in the prospectus supplement, the indentures will define
an
event of default with respect to any series of debt securities as one or more
of
the following events:
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failure
to pay principal of or any premium on any debt security of that series
when due;
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failure
to pay any interest on any debt security of that series for 30 days
when due;
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failure
to perform any other covenant in the indenture continued for 60 days
after being given the notice required in the
indenture;
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our
bankruptcy, insolvency or reorganization;
and
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any
other event of default specified in the prospectus
supplement.
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An
event
of default of one series of debt securities is not necessarily an event of
default for any other series of debt securities.
If
an
event of default, other than an event of default described in the fourth bullet
point above, shall occur and be continuing, either the trustee or the holders
of
at least 25% in aggregate principal amount of the outstanding debt securities
of
a series, by notice in writing to us, and to the trustee if notice is given
by
such holders, may declare the principal amount of the debt securities of that
series to be due and payable immediately.
If
an
event of default described in the fourth bullet point above shall occur, the
principal amount of all debt securities of that series will automatically become
immediately payable. Any payment by us on the subordinated debt securities
following any such acceleration will be subject to the subordination provisions
described below under “—Subordinated Debt Securities”.
The
holders of a majority in principal amount of the outstanding debt securities
of
an affected series may waive any default or event of default with respect to
such series and it consequences, except a continuing default or events of
default in the payment of principal, premium, if any, or interest on the debt
securities of such series.
After
acceleration, the holders of a majority in aggregate principal amount of the
outstanding debt securities of an affected series may, under certain
circumstances, rescind and annul such acceleration if all events of default,
other than the non-payment of accelerated principal, or other specified amounts,
have been cured or waived.
Other
than the duty to act with the required care during an event of default, the
trustee will not be obligated to exercise any of its rights or powers at the
request of the holders unless the holders shall have offered to the trustee
reasonable indemnity. Generally, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the trustee or exercising any trust or power conferred
on
the trustee.
A
holder
will not have any right to institute any proceeding under the indentures, or
for
the appointment of a receiver or a trustee, or for any other remedy under the
indentures, unless:
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the
holder has previously given to the trustee written notice of a continuing
event of default with respect to the debt securities of that
series;
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the
holders of at least 25% in aggregate principal amount of the outstanding
debt securities of that series have made a written request and have
offered reasonable indemnity to the trustee to institute the proceeding;
and
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the
trustee has failed to institute the proceeding and has not received
direction inconsistent with the original request from the holders
of a
majority in aggregate principal amount of the outstanding debt securities
of that series within 60 days after the original
request.
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A
holder
of debt securities may, however, sue to enforce the payment of principal,
premium or interest on any debt security on or after the due date or to enforce
the right, if any, to convert any debt security without following the procedures
listed above.
We
will
periodically file statements with the trustee regarding our compliance with
certain of the covenants in the indentures.
Modification
and Waiver
We
and
the trustee may change an indenture without the consent of any holders with
respect to certain matters, including:
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to
fix any ambiguity, defect or inconsistency in such indenture;
and
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to
change anything that does not materially adversely affect the interests
of
any holder of the debt securities of any
series.
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We
and
the trustee may make modifications and amendments to an indenture with the
consent of the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series affected by the modification or
amendment. However, neither we nor the trustee may make any modification or
amendment without the consent of the holder of each outstanding debt security
of
that series affected by the modification or amendment if such modification
or
amendment would:
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change
the stated maturity of any debt
security;
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reduce
the principal, premium, if any, or interest on any debt
security;
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reduce
the principal of an original issue discount security or any other
debt
security payable on acceleration of
maturity;
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change
the currency in which any debt security is
payable;
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impair
the right to enforce any payment after the stated maturity or redemption
date;
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waive
any default or event of default in payment of the principal of, premium
or
interest on any debt security;
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waive
a redemption payment or modify any of the redemption provisions of
any
debt security;
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in
the case of the subordinated debt securities, modifying the subordination
provisions in a manner adverse to the holders of the subordinated
debt
securities;
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in
the case of secured debt securities, changing the terms and conditions
pursuant to which the debt securities are secured in a manner adverse
to
the holders of such secured debt
securities;
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adversely
affect the right to convert or exchange any debt security in any
material
respect; or
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change
the provisions in an indenture that relate to modifying or amending
such
indenture.
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Satisfaction
and Discharge; Defeasance
We
may be
discharged from our obligations on the debt securities of any series that have
matured or will mature or be redeemed within one year if we deposit with the
trustee enough cash to pay all the principal, interest and any premium due
to
the stated maturity date or redemption date of the debt securities.
Each
indenture contains a provision that permits us to elect:
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to
be discharged from all of our obligations, subject to limited exceptions,
with respect to any series of debt securities then outstanding;
and/or
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to
be released from our obligations under certain covenants described
in the
indentures and from the consequences of an event of default resulting
from
a breach of these covenants.
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We
refer
to the first bullet point above as “legal defeasance” and the second bullet
point above as “covenant defeasance.” Our legal defeasance or covenant
defeasance option may be exercised only if:
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we
deposit in trust with the trustee enough money in cash and/or U.S.
government obligations to pay in full the principal of and interest
and
premium, if any, on the debt
securities.
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the
deposit of the money by us does not result in a breach or violation
of, or
constitute a default under the applicable indenture or any other
agreement
or instrument to which we are a
party.
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no
default or event of default with respect to the debt securities of
such
series shall have occurred and be continuing on the date of the deposit
of
the money or during the preference period applicable to
us.
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we
deliver to the trustee an opinion of counsel to the effect that the
holders of the debt securities will not recognize income, gain or
loss for
Federal income tax purposes as a result of such deposit and defeasance
and
will be subject to federal income tax on the same amount in the same
manner and at the same times as would have been the case if such
deposit
and defeasance had not occurred. In the case of legal
defeasance this opinion must be based on a ruling of the Internal
Revenue
Service or a change in the United Stated federal income tax
law.
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in
the case of legal defeasance, such legal defeasance does not result
in the
trust arising from the deposit of the money constituting an investment
company, as defined in the Investment Company Act of 1940, as amended,
or
the 1940 Act, or such trust shall be qualified under the 1940 Act
or
exempt from regulation thereunder.
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we
deliver to the trustee an officers’ certificate and opinion of counsel,
each stating that all conditions precedent with respect to such defeasance
have been complied with.
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If
any of
the above events occurs, the holders of the debt securities of the series will
not be entitled to the benefits of the applicable indenture, except for the
rights of holders to receive payments on debt securities or the registration
of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities.
Governing
Law
The
indentures and the debt securities will be governed by, and construed in
accordance with the law of the State of New York.
Regarding
the Trustee
We
may
appoint a separate trustee for any series of debt securities. The trustee will
have all the duties and responsibilities of an indenture trustee specified
in
the Trust Indenture Act. The trustee is not required to spend or risk its own
money or otherwise become financially liable while performing its duties unless
it reasonably believes that it will be repaid or receive adequate
indemnity.
Each
indenture limits the right of the trustee, should it become a creditor of us,
to
obtain payment of claims or secure its claims.
The
trustee is permitted to engage in certain other transactions. However, if the
trustee acquires any conflicting interest, and there is a default under the
debt
securities of any series for which they are trustee, the trustee must eliminate
the conflict or resign.
Subordinated
Debt Securities
Payment
on the subordinated debt securities will, to the extent provided in the
subordinated indenture, be subordinated in right of payment to the prior payment
in full of all of our senior indebtedness. The subordinated debt securities
also
will be effectively subordinated to all debt and other liabilities, including
trade payables and lease obligations, if any, of our subsidiaries, if
any.
Upon
any
distribution of our assets upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of and interest on the subordinated
debt securities will be subordinated in right of payment to the prior payment
in
full in cash or other payment satisfactory to the holders of our senior
indebtedness. In the event of any acceleration of the subordinated debt
securities because of an event of default, the holders of any of our senior
indebtedness would be entitled to payment in full in cash or other payment
satisfactory to such holders of all senior indebtedness obligations before
the
holders of the subordinated debt securities are entitled to receive any payment
or distribution. The subordinated indenture requires us or the trustee to
promptly notify holders of designated senior indebtedness if payment of the
subordinated debt securities is accelerated because of an event of
default.
We
may
not make any payment on the subordinated debt securities, including upon
redemption at the option of the holder of any subordinated debt securities
or at
our option, if:
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a
default in the payment of the principal, premium, if any, interest,
rent
or other obligations in respect of senior indebtedness occurs and
is
continuing beyond any applicable period of grace, which is called
a
“payment default”;
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a
default other than a payment default on any designated senior indebtedness
occurs and is continuing that permits holders of designated senior
indebtedness to accelerate its maturity, and the trustee receives
notice
of such default, which is called a “payment blockage notice” from us or
any other person permitted to give such notice under the subordinated
indenture, which is called a “non-payment default”;
or
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any
judicial proceeding is pending in connection with a
default.
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If
the
trustee or any holder of the subordinated debt securities receives any payment
or distribution of our assets in contravention of the subordination provisions
on the subordinated debt securities before all senior indebtedness is paid
in
full in cash, property or securities, including by way of set-off, or other
payment satisfactory to holders of senior indebtedness, then such payment or
distribution will be held in trust for the benefit of holders of senior
indebtedness or their representatives to the extent necessary to make payment
in
full in cash or payment satisfactory to the holders of senior indebtedness
of
all unpaid senior indebtedness.
In
the
event of our bankruptcy, dissolution or reorganization, holders of senior
indebtedness may receive more, ratably, and holders of the subordinated debt
securities may receive less, ratably, than our other creditors (including our
trade creditors). This subordination will not prevent the occurrence of any
event of default under the subordinated indenture.
We
are
obligated to pay reasonable compensation to the trustee and to indemnify the
trustee against certain losses, liabilities or expenses incurred by the trustee
in connection with its duties relating to the subordinated debt
The
subordinated indenture allows us to change the subordination provisions relating
to any particular issue of subordinated debt securities prior to issuance.
We
will describe any change in the prospectus supplement relating to the
subordinated debt securities.
DESCRIPTION
OF WARRANTS
We
may
issue warrants to purchase our debt or equity securities or securities of third
parties or other rights, including rights to receive payment in cash or
securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination of the
foregoing. Warrants may be issued independently or together with any other
securities and may be attached to, or separate from, such securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent. The terms of any warrants to be
issued and a description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus
supplement.
The
applicable prospectus supplement will describe the following terms of any
warrants in respect of which this prospectus is being delivered:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be
issued;
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the
currency or currencies, in which the price of such warrants will
be
payable;
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the
securities or other rights, including rights to receive payment in
cash or
securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination
of the
foregoing, purchasable upon exercise of such
warrants;
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the
price at which and the currency or currencies, in which the securities
or
other rights purchasable upon exercise of such warrants may be
purchased;
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the
date on which the right to exercise such warrants shall commence
and the
date on which such right shall
expire;
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if
applicable, the designation and terms of the securities with which
such
warrants are issued and the number of such warrants issued with each
such
security;
|
|
·
|
if
applicable, the date on and after which such warrants and the related
securities will be separately
transferable;
|
|
·
|
information
with respect to book-entry procedures, if
any;
|
|
·
|
if
applicable, a discussion of material United States federal income
tax
considerations; and
|
|
·
|
any
other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such
warrants.
|
DESCRIPTION
OF PURCHASE CONTRACTS
We
may
issue purchase contracts for the purchase or sale of:
|
·
|
debt
or equity securities issued by us or securities of third parties,
a basket
of such securities, an index or indices of such securities or any
combination of the above as specified in the applicable prospectus
supplement;
|
Each
purchase contract will entitle the holder thereof to purchase or sell, and
obligate us to sell or purchase, on specified dates, such securities, currencies
or commodities at a specified purchase price, which may be based on a formula,
all as set forth in the applicable prospectus supplement. We may,
however, satisfy our obligations, if any, with respect to any purchase contract
by delivering the cash value of such purchase contract or the cash value of
the
property otherwise deliverable or, in the case of purchase contracts on
underlying currencies, by delivering the underlying currencies, as set forth
in
the applicable prospectus supplement. The applicable prospectus
supplement will also specify the methods by which the holders may purchase
or
sell such securities, currencies or commodities and any acceleration,
cancellation or termination provisions or other provisions relating to the
settlement of a purchase contract.
The
purchase contracts may require us to make periodic payments to the holders
thereof or vice versa, which payments may be deferred to the extent set forth
in
the applicable prospectus supplement, and those payments may be unsecured or
prefunded on some basis. The purchase contracts may require the
holders thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement. Alternatively,
purchase contracts may require holders to satisfy their obligations thereunder
when the purchase contracts are issued. Our obligation to settle such
pre-paid purchase contracts on the relevant settlement date may constitute
indebtedness. Accordingly, pre-paid purchase contracts will be issued
under either the senior indenture or the subordinated indenture.
DESCRIPTION
OF UNITS
We
may
issue units consisting of two or more securities described in this prospectus,
in any combination. Each unit will be issued so that the holder of
the unit is also the holder of each security included in the
unit. The holder of a unit, therefore, will have the rights and
obligations of a holder of each underlying security. The applicable
prospectus supplement will describe:
|
·
|
the
terms of the units and of the underlying securities, including whether
and
under what circumstances the securities comprising the units may
be traded
separately;
|
|
·
|
a
description of the terms of any unit agreement governing the units;
and
|
|
·
|
a
description of the provisions for the payment, settlement, transfer
or
exchange of the units.
|
FORMS
OF SECURITIES
Each
debt
security, warrant and unit will be represented by one or more global securities
representing the entire issuance of securities. Global securities
will be issued in registered form. Global securities name a
depositary or its nominee as the owner of the debt securities, warrants or
units
represented by these global securities. The depositary maintains a
computerized system that will reflect each investor’s beneficial ownership of
the securities through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as will be explained
more fully in the applicable prospectus supplement.
PLAN
OF DISTRIBUTION
We
may
sell the securities in one or more of the following ways (or in any combination)
from time to time:
|
·
|
through
underwriters or dealers for resale to the public or to
investors;
|
|
·
|
directly
to a limited number of purchasers or to a single purchaser;
or
|
The
prospectus supplement will state the terms of the offering of the securities,
including:
|
·
|
the
name or names of any underwriters, dealers or
agents;
|
|
·
|
the
purchase price of such securities and the proceeds to be received
by us,
if any;
|
|
·
|
any
underwriting discounts or agency fees and other items constituting
underwriters’ or agents’
compensation;
|
|
·
|
any
initial public offering price;
|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
|
|
·
|
any
securities exchanges on which the securities may be
listed.
|
Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If
we use
underwriters in the sale, the securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions, including:
|
·
|
negotiated
transactions,
|
|
·
|
at
a fixed public offering price or prices, which may be
changed,
|
|
·
|
at
market prices prevailing at the time of
sale,
|
|
·
|
at
prices related to prevailing market prices
or
|
Unless
otherwise stated in a prospectus supplement, the obligations of the underwriters
to purchase any securities will be conditioned on customary closing conditions
and the underwriters will be obligated to purchase all of such series of
securities, if any are purchased.
We
may
authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase the securities from us at the public offering price
set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the
future. These contracts will be subject only to those conditions set
forth in the prospectus supplement, and the prospectus supplement will set
forth
any commissions we pay for solicitation of these contracts.
We
may
sell the securities through agents from time to time. The prospectus
supplement will name any agent involved in the offer or sale of the securities
and any commissions we pay to them. Generally, any agent will be
acting on a best efforts basis for the period of its appointment.
Underwriters
and agents may be entitled under agreements entered into with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which
the
underwriters or agents may be required to make. Underwriters and
agents may be customers of, engage in transactions with, or perform services
for
us and our affiliates in the ordinary course of business.
Unless
otherwise specified in the applicable prospectus supplement, each series of
securities will be a new issue of securities and will have no established
trading market, other than the common stock which is listed on the New York
Stock Exchange. We may elect to list any other class or series of
securities on any exchange or market, but we are not obligated to do
so. Any underwriters to whom securities are sold for public offering
and sale may make a
market
in
the securities but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot
give any assurance as to the liquidity of the trading market for any of the
securities.
WHERE
YOU CAN FIND MORE INFORMATION
Government
Filings
We
file
annual, quarterly and current reports, proxy statements and other information
with the Securities and Exchange Commission under the Securities Exchange Act
of
1934, as amended. You may read and copy this information at the
following location of the Securities and Exchange Commission:
Public
Reference Room
100
F
Street, N.E.
Room
1580
Washington,
D.C. 20549
You
may
also obtain copies of this information by mail from the Public Reference Section
of the Securities and Exchange Commission, 100 F Street, N.E., Room 1580,
Washington, D.C. 20549, at prescribed rates. You may obtain
information on the operation of the Securities and Exchange Commission’s Public
Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. The Securities and Exchange Commission also maintains
an Internet worldwide web site that contains reports, proxy statements and
other
information about issuers like us who file electronically with the Securities
and Exchange Commission. The address of the site is
http://www.sec.gov
.
Information
Incorporated by Reference
The
Securities and Exchange Commission allows us to incorporate by reference
information into this document. This means that we can disclose
important information to you by referring you to another document filed
separately with the Securities and Exchange Commission. The
information incorporated by reference is considered to be a part of this
document, except for any information superseded by information that is included
directly in this document or incorporated by reference subsequent to the date
of
this document.
This
prospectus incorporates by reference the documents listed below and any future
filings that we make with the Securities and Exchange Commission under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(other than information in the documents or filings that is deemed to have
been
furnished and not filed), until all the securities offered under this prospectus
are sold.
McMoRan
Exploration Co.
Securities
and Exchange Commission Filings
|
|
|
Annual
Report on Form 10-K
|
Fiscal
year ended December 31, 2006
|
|
Quarterly
Report on Form 10-Q
|
First
quarter ended March 31, 2007 and second quarter ended June 30,
2007
|
|
Current
Reports on Form 8-K
|
January
5, 2007, January 11, 2007, January 18, 2007, January 23, 2007, January
30,
2007, February 26, 2007, March 21, 2007, April 17, 2007, May 29,
2007,
June 22, 2007, July 2, 2007, July 3, 2007, July 12, 2007, July 19,
2007,
August 3, 2007, August 10, 2007, August 16, 2007 and September 27,
2007
|
|
Proxy
Statement on Schedule 14A
|
Filed
on March 26, 2007
|
Documents
incorporated by reference are available from us without charge, excluding any
exhibits to those documents unless the exhibit is specifically incorporated
by
reference as an exhibit in this document. You can obtain documents
incorporated by reference in this document by requesting them in writing or
by
telephone from the company at the following address:
|
McMoRan
Exploration Co.
1615
Poydras Street
New
Orleans, Louisiana 70112
Attention:
Investor Relations
Telephone:
(504) 582-4000
|
|
INFORMATION
CONCERNING FORWARD-LOOKING STATEMENTS
This
prospectus and our financial statements and other documents incorporated by
reference in this prospectus contain statements relating to future results,
which are forward-looking statements as that term is defined in the Private
Securities Litigation Act of 1995. When used in this document, the
words “anticipates”, “may”, “can”, “plans”, “feels”, “believes”, “estimates”,
“expects”, “projects”, “intends”, “likely”, “will”, “should”, “to be” and any
similar expressions and any other statements that are not historical facts,
in
each case as they relate to us or company management are intended to identify
those assertions as forward-looking statements. In making any of
those statements, the person making them believes that its expectations are
based on reasonable assumptions. However, these forward-looking
statements are subject to numerous risks and uncertainties that could cause
actual results to differ materially from those expressed in, or implied or
projected by, the forward-looking information and statements. Any
such statement may be influenced by factors that could cause actual outcomes
and
results to be materially different from those projected or anticipated. These
factors include, but are not limited to, those which may be set forth in the
accompanying prospectus supplement and those under the heading “Risk Factors”
included in Item 1A of our annual report on Form 10-K for the year ended
December 31, 2006, and other factors described in our periodic reports filed
from time to time with the Securities and Exchange Commission.
Some
other risks and uncertainties include, but are not limited to:
|
·
|
general
industry conditions, such as fluctuations in the market prices of
oil and
natural gas;
|
|
·
|
our
ability to obtain additional
capital;
|
|
·
|
environmental
and related indemnification
obligations;
|
|
·
|
adverse
weather conditions and natural disasters, such as
hurricanes;
|
|
·
|
the
speculative nature of oil and gas
exploration;
|
|
·
|
adverse
financial market conditions;
|
|
·
|
shortage
of supplies, equipment and
personnel;
|
|
·
|
regulatory
and litigation matters and risks;
and
|
|
·
|
changes
in tax and other laws.
|
Our
actual results or performance could differ materially from those expressed
in,
or implied by, any forward-looking statements relating to those
matters. Accordingly, no assurances can be given that any of the
events anticipated by the forward-looking statements will transpire or occur,
or
if any of them do so, what impact they will have on the results of our
operations or financial condition. Except as required by law, we are under
no
obligation, and expressly disclaim any obligation, to update, alter or otherwise
revise any forward-looking statement, whether written or oral, that may be
made
from time to time, whether as a result of new information, future events or
otherwise.
LEGAL
OPINIONS
The
validity of the securities in respect of which this prospectus is being
delivered will be passed on for us by Jones, Walker, Waechter, Poitevent,
Carrère & Denègre, L.L.P., New Orleans, Louisiana.
EXPERTS
The
consolidated financial statements of McMoRan Exploration Co. appearing in
McMoRan Exploration Co.’s Annual Report on Form 10-K for the year ended December
31, 2006 and McMoRan Exploration Co. management’s assessment of the
effectiveness of internal control over financial reporting as of December 31,
2006 included therein, have been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their reports thereon
included therein, and incorporated herein by reference. Such financial
statements and management’s assessment are, and audited financial statements and
McMoRan Exploration Co. management’s assessments of the effectiveness of
internal control over financial reporting to be included in subsequently filed
documents will be, incorporated herein in reliance upon the reports of Ernst
& Young LLP pertaining to such financial statements and management’s
assessments (to the extent covered by consents filed with the SEC) given on
the
authority of such firm as experts in accounting and auditing.
With
respect to the unaudited condensed consolidated interim financial information
of
McMoRan Exploration Co. as of March 31, 2007 and for the three-month periods
ended March 31, 2007 and 2006, and as of June 30, 2007 and for the three-month
and six-month periods ended June 30, 2007 and 2006, incorporated by reference
in
this prospectus, Ernst & Young LLP reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report dated April 30,
2007,
included in McMoRan Exploration Co.’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2007, and their separate report dated August 6, 2007
included in McMoRan Exploration Co.’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2007, both of which reports are incorporated by reference
herein, state that they did not audit and they do not express opinions on that
interim financial information. Accordingly, the degree of reliance on
their report on such information should be restricted in light of the limited
nature of the review procedures applied. Ernst & Young LLP is not
subject to the liability provisions of Section 11 of the Securities Act of
1933
(the “Securities Act”) for their reports on the unaudited interim financial
information because those reports are not “reports” or “parts”
of the Registration Statement prepared or certified by Ernst & Young LLP
within the meaning of Sections 7 and 11 of the Securities Act.
The
audited historical statements of revenues and direct operating expenses of
certain oil and gas properties acquired from Newfield Exploration Company
included on pages 1 through 8 of Exhibit 99.1 of McMoRan Exploration Co.’s
Current Report on Form 8-K/A dated August 16, 2007, have been so incorporated
in
reliance on the report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in
auditing and accounting.
RESERVES
The
information regarding our reserves as of December 31, 2006 that is either
included in this prospectus or incorporated by reference to our annual report
on
Form 10-K for the year ended December 31, 2006 has been reviewed and verified
by
Ryder Scott Company, L.P. This reserve information has been included in this
prospectus and incorporated by reference herein in reliance upon the authority
of Ryder Scott as experts in reserve determination.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the costs and expenses to be borne by the Registrant
in connection with the offerings described in this Registration
Statement.
|
Registration
fee
|
$ 46,050
|
|
Blue
Sky fees and expenses
|
*
|
|
Printing
and engraving expenses
|
*
|
|
NYSE
Supplemental Listing Fee
|
*
|
|
Transfer
Agent and Trustee fees and expenses
|
*
|
|
Accounting
fees and expenses
|
*
|
|
Legal
fees and expenses
|
*
|
|
Rating
Agency fees and expenses
|
*
|
|
Miscellaneous
|
*
|
|
Total
|
*
|
* To
be provided by amendment or as an exhibit to a report on Form 8-K that is
incorporated by reference into this prospectus.
Item
15. Indemnification of Directors and
Officers
Section
145 of the General Corporation Law of Delaware empowers us to indemnify, subject
to the standards prescribed in that Section, any person in connection with
any
action, suit or proceeding brought or threatened by reason of the fact that
the
person is or was our director, officer, employee or agent. Article VIII of
our
amended and restated certificate of incorporation provides that our company
shall indemnify any person who is or was a director, officer, employee or agent
of our company, to the fullest extent authorized by law. In addition, Section
10
of our amended and restated bylaws provides that we shall defend and indemnify
each person who was or is made a party to, or is threatened to be made a party
to, or is otherwise involved in, any action, suit, or proceeding by reason
of
the fact that the person is or was our director, officer, employee or agent
if:
|
·
|
the
director, officer, agent or employee is successful in defending the
claim
on its merits or otherwise; or
|
|
·
|
the
director, officer, agent or employee meets the standard of conduct
described in Section 9 of our
bylaws.
|
However,
the director, officer, agent or employee of our company will not be entitled
to
indemnification if:
|
·
|
the
claim is one brought by the director, officer, agent or employee
against
our company; or
|
|
·
|
the
claim is one brought by the director, officer, agent or employee
as a
derivative action by our company or in the right of our company,
and the
action is not approved by our board of
directors.
|
The
rights conferred by Article VIII of our amended and restated certificate of
incorporation and Section 10 of our amended and restated bylaws are contractual
rights and include the right to be paid by us the expenses incurred in defending
the action, suit or proceeding in advance of its final disposition.
Article
VIII of our amended and restated certificate of incorporation provides that
our
directors will not be personally liable to us or our stockholders for monetary
damages resulting from breaches of their fiduciary duty as directors except
(1)
for any breach of the duty of loyalty to us or our stockholders, (2) for acts
or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of the General Corporation Law of
Delaware, which makes directors liable for unlawful dividend or unlawful stock
repurchases or redemptions or (4) transactions from which directors derive
improper personal benefit.
We
have
an insurance policy insuring our directors and officers against certain
liabilities, including liabilities under the Securities Act.
Item
16. Exhibits
The
following is a list of all exhibits filed as a part of this registration
statement on Form S-3, including those incorporated herein by
reference.
|
Exhibit
No.
|
Document
|
|
1.1*
|
Forms
of Underwriting Agreements.
|
|
2.1
|
Agreement
and Plan of Merger dated as of August 1, 1998. (Incorporated by
reference
to Annex A to McMoRan’s Registration Statement on Form S-4 (Registration
No. 333-61171) filed with the SEC on October 6, 1998 (the McMoRan
S-4)).
|
|
4.1
|
Form
of Certificate of McMoRan Common Stock (Incorporated by reference
to
Exhibit 4.1 of the McMoRan S-4).
|
|
4.2
|
Rights
Agreement dated as of November 13, 1998. (Incorporated by reference
to
Exhibit 4.2 to McMoRan 1998 Form 10-K).
|
|
4.3
|
Amendment
to Rights Agreement dated December 28, 1998. (Incorporated by reference
to
Exhibit 4.3 to McMoRan 1998 Form 10-K).
|
|
4.4
|
Standstill
Agreement dated August 5, 1999 between McMoRan and Alpine Capital,
L.P.,
Robert W. Bruce III, Algenpar, Inc, J. Taylor Crandall, Susan C.
Bruce,
Keystone, Inc., Robert M. Bass, the Anne T. and Robert M. Bass
Foundation,
Anne T. Bass and The Robert Bruce Management Company, Inc. Defined
Benefit
Pension Trust. (Incorporated by reference to Exhibit 4.4 to McMoRan's
Third Quarter 1999 Form 10-Q).
|
|
4.5
|
Warrant
to Purchase Shares of Common Stock of McMoRan dated December 16,
2002.
(Incorporated by reference to Exhibit 4.7 to McMoRan’s 2002 Form
10-K).
|
|
4.6
|
Warrant
to Purchase Shares of Common Stock of McMoRan dated September 30,
2003.
(Incorporated by reference to Exhibit 4.8 to McMoRan’s 2003 Form
10-K).
|
|
4.7
|
Registration
Rights Agreement dated December 16, 2002 between McMoRan and K1
USA Energy
Production Corporation. (Incorporated by reference to Exhibit 4.8
to
McMoRan’s 2002 Form 10-K).
|
|
4.8
|
Indenture
dated as of July 2, 2003 by and between McMoRan and The Bank of
New York,
as trustee. (Incorporated by reference to Exhibit 4.9 to McMoRan’s Second
Quarter 2003 Form 10-Q).
|
|
4.9
|
Collateral
Pledge and Security Agreement dated as of July 2, 2003 by and among
McMoRan, as pledgor, The Bank of New York, as trustee, and the
Bank of New
York, as collateral agent. (Incorporated by reference to Exhibit
4.11 to
McMoRan's Second Quarter 2003 Form 10-Q).
|
|
4.10
|
Purchase
Agreement dated September 30, 2004, by and among McMoRan Exploration
Co.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and J.P. Morgan Securities Inc. (Incorporated by
reference
to Exhibit 99.2 to McMoRan's Current Report on Form 8-K dated October
6,
2004 (filed October 7, 2004).
|
|
4.11
|
Indenture
dated October 6, 2004 by and among McMoRan and the Bank of New
York, as
trustee. (Incorporated by reference to Exhibit 99.3 to McMoRan’s Current
Report on Form 8-K dated October 6, 2004 (filed October 7,
2004)).
|
|
4.12
|
Collateral
Pledge and Security Agreement dated October 6, 2004 by and among
McMoRan,
as pledgor, The Bank of New York, as trustee and the Bank of New
York, as
collateral agent. (Incorporated by reference to Exhibit 99.4 to
McMoRan's
Current Report on Form 8-K dated October 6, 2004 (filed October
7,
2004)).
|
|
4.13
|
Registration
Rights Agreement dated October 6, 2004 by and among McMoRan, as
issuer and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities Inc. and Jefferies & Company, Inc. as Initial Purchasers.
(Incorporated by reference to Exhibit 99.5 to McMoRan's Current
Report on
Form 8-K dated October 6, 2004 (filed October 7,
2004)).
|
|
4.14*
|
Form
of Preferred Stock Certificate.
|
|
4.15*
|
Form
of Senior Debt Security.
|
|
4.16*
|
Form
of Subordinated Debt Security.
|
|
4.17**
|
Form
of Senior Indenture between McMoRan and one or more trustees to
be
named.
|
|
4.18**
|
Form
of Subordinated Indenture between McMoRan and one or more trustees
to be
named.
|
|
4.19*
|
Form
of Warrant Agreement.
|
|
4.20*
|
Form
of Purchase Contract.
|
|
4.21*
|
Form
of Unit Agreement.
|
|
4.22*
|
Form
of Certificate of Designation.
|
|
5.1**
|
Opinion
of Jones, Walker, Waechter, Poitevent, Carrère & Denègre,
L.L.P.
|
|
12.1
|
Statement
regarding computation of Ratio of Earnings to Fixed
Charges.
|
|
15.1
|
Letter
from Ernst & Young LLP regarding unaudited interim financial
statements.
|
|
23.1
|
Consent
of Ernst & Young LLP.
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
|
23.3
|
Consent
of Ryder Scott Company, L.P.
|
|
23.4**
|
Opinion
of Jones, Walker, Waechter, Poitevent, Carrère & Denègre,
L.L.P.
|
|
24.1**
|
Powers
of Attorney pursuant to which this registration statement has been
signed
on behalf of certain officers and directors of MMR.
|
|
25.1*
|
Statement
of Eligibility of Trustee on Form T-1 under the Senior
Indenture.
|
|
25.2*
|
Statement
of Eligibility of Trustee on Form T-1 under the Subordinated
Indenture.
|
* To
be filed by an amendment or by a report filed under the Exchange Act, and
incorporated herein by reference.
** Previously
filed.
Item
17. Undertakings
The
undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the ``Calculation of Registration Fee'' table in the
effective registration statement; and
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)
That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4)
That,
for the purpose of determining liability under the Securities Act of 1933 to
any
purchaser:
(i)
Each
prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(5)
That,
for the purpose of determining liability of a Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities,
the
undersigned Registrant undertakes that in a primary offering of securities
of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of an undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of
an
undersigned Registrant or used or referred to by an undersigned
Registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about an undersigned Registrant or its securities provided
by or on behalf of an undersigned Registrant; and
(iv)
Any
other communication that is an offer in the offering made by an undersigned
Registrant to the purchaser.
(6)
That,
for purposes of determining any liability under the Securities Act of 1933,
each
filing of Registrant's annual report pursuant to Section 13(a) or 15(d) of
the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(7)
To
file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust Indenture Act
of
1939 in accordance with the rules and regulations prescribed by the Securities
and Exchange Commission under Section 305(b)(2) of the Securities Trust
Indenture Act of 1939.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of
a
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the
securities being registered, that Registrant will, unless in the opinion of
its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it
is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in New Orleans,
Louisiana, on October 3, 2007.
By:
/s/ Nancy D. Parmelee
Nancy
D. Parmelee
Senior
Vice President, Chief
Financial
Officer and Secretary
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons on behalf of the registrant and the
capacities indicated, on October 3, 2007.
|
*
|
Co-Chairman
of the Board
|
|
James
R. Moffett
|
|
|
|
|
|
/s/
Richard C. Adkerson
|
Co-Chairman
of the Board
|
|
Richard
C. Adkerson
|
|
|
|
|
|
*
|
Vice
Chairman of the Board
|
|
B.M.
Rankin, Jr.
|
|
|
|
|
|
*
|
President
and Chief Executive Officer
|
|
Glenn
A. Kleinert
|
|
|
|
|
|
/s/
Nancy D. Parmelee
|
Senior
Vice President, Chief Financial Officer
|
|
Nancy
D. Parmelee
|
and
Secretary
|
|
|
(Principal
Financial Officer)
|
|
|
|
|
*
|
Vice
President and Controller - Financial Reporting
|
|
C.
Donald Whitmire, Jr.
|
(Principal
Accounting Officer)
|
|
|
|
|
*
|
Director
|
|
Robert
A. Day
|
|
|
|
|
|
*
|
Director
|
|
Gerald
J. Ford
|
|
|
|
|
|
*
|
Director
|
|
H.
Devon Graham, Jr.
|
|
|
|
|
|
*
|
Director
|
|
Suzanne
T. Mestayer
|
|
|
|
|
|
*
|
Director
|
|
J.
Taylor Warton
|
|
|
|
|
|
*By:
/s/ Richard C. Adkerson
|
|
|
Richard
C. Adkerson
|
|
|
Attorney-in-Fact
|
|
EXHIBIT
INDEX
|
Exhibit
No.
|
Document
|
|
1.1*
|
Forms
of Underwriting Agreements.
|
|
2.1
|
Agreement
and Plan of Merger dated as of August 1, 1998. (Incorporated by reference
to Annex A to McMoRan’s Registration Statement on Form S-4 (Registration
No. 333-61171) filed with the SEC on October 6, 1998 (the McMoRan
S-4)).
|
|
4.1
|
Form
of Certificate of McMoRan Common Stock (Incorporated by reference
to
Exhibit 4.1 of the McMoRan S-4).
|
|
4.2
|
Rights
Agreement dated as of November 13, 1998. (Incorporated by reference
to
Exhibit 4.2 to McMoRan 1998 Form 10-K).
|
|
4.3
|
Amendment
to Rights Agreement dated December 28, 1998. (Incorporated by reference
to
Exhibit 4.3 to McMoRan 1998 Form 10-K).
|
|
4.4
|
Standstill
Agreement dated August 5, 1999 between McMoRan and Alpine Capital,
L.P.,
Robert W. Bruce III, Algenpar, Inc, J. Taylor Crandall, Susan C.
Bruce,
Keystone, Inc., Robert M. Bass, the Anne T. and Robert M. Bass Foundation,
Anne T. Bass and The Robert Bruce Management Company, Inc. Defined
Benefit
Pension Trust. (Incorporated by reference to Exhibit 4.4 to McMoRan's
Third Quarter 1999 Form 10-Q).
|
|
4.5
|
Warrant
to Purchase Shares of Common Stock of McMoRan dated December 16,
2002.
(Incorporated by reference to Exhibit 4.7 to McMoRan’s 2002 Form
10-K).
|
|
4.6
|
Warrant
to Purchase Shares of Common Stock of McMoRan dated September 30,
2003.
(Incorporated by reference to Exhibit 4.8 to McMoRan’s 2003 Form
10-K).
|
|
4.7
|
Registration
Rights Agreement dated December 16, 2002 between McMoRan and K1 USA
Energy
Production Corporation. (Incorporated by reference to Exhibit 4.8
to
McMoRan’s 2002 Form 10-K).
|
|
4.8
|
Indenture
dated as of July 2, 2003 by and between McMoRan and The Bank of New
York,
as trustee. (Incorporated by reference to Exhibit 4.9 to McMoRan's
Second
Quarter 2003 Form 10-Q).
|
|
4.9
|
Collateral
Pledge and Security Agreement dated as of July 2, 2003 by and among
McMoRan, as pledgor, The Bank of New York, as trustee, and the Bank
of New
York, as collateral agent. (Incorporated by reference to Exhibit
4.11 to
McMoRan’s Second Quarter 2003 Form 10-Q).
|
|
4.10
|
Purchase
Agreement dated September 30, 2004, by and among McMoRan Exploration
Co.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and J.P. Morgan Securities Inc. (Incorporated by reference
to Exhibit 99.2 to McMoRan’s Current Report on Form 8-K dated October 6,
2004 (filed October 7, 2004).
|
|
4.11
|
Indenture
dated October 6, 2004 by and among McMoRan and the Bank of New York,
as
trustee. (Incorporated by reference to Exhibit 99.3 to McMoRan’s Current
Report on Form 8-K dated October 6, 2004 (filed October 7,
2004)).
|
|
4.12
|
Collateral
Pledge and Security Agreement dated October 6, 2004 by and among
McMoRan,
as pledgor, The Bank of New York, as trustee and the Bank of New
York, as
collateral agent. (Incorporated by reference to Exhibit 99.4 to McMoRan’s
Current Report on Form 8-K dated October 6, 2004 (filed October 7,
2004)).
|
|
4.13
|
Registration
Rights Agreement dated October 6, 2004 by and among McMoRan, as issuer
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan
Securities Inc. and Jefferies & Company, Inc. as Initial Purchasers.
(Incorporated by reference to Exhibit 99.5 to McMoRan's Current Report
on
Form 8-K dated October 6, 2004 (filed October 7,
2004)).
|
|
4.14*
|
Form
of Preferred Stock Certificate.
|
|
4.15*
|
Form
of Senior Debt Security.
|
|
4.16*
|
Form
of Subordinated Debt Security.
|
|
4.17**
|
Form
of Senior Indenture between McMoRan and one or more trustees to be
named.
|
|
4.18**
|
Form
of Subordinated Indenture between McMoRan and one or more trustees
to be
named.
|
|
4.19*
|
Form
of Warrant Agreement.
|
|
4.20*
|
Form
of Purchase Contract.
|
|
4.21*
|
Form
of Unit Agreement.
|
|
4.22*
|
Form
of Certificate of Designation.
|
|
5.1**
|
Opinion
of Jones, Walker, Waechter, Poitevent, Carrère & Denègre,
L.L.P.
|
|
|
Statement
regarding computation of Ratio of Earnings to Fixed
Charges.
|
|
|
Letter
from Ernst & Young LLP regarding unaudited interim financial
statements.
|
|
|
Consent
of Ernst & Young LLP.
|
|
|
Consent
of PricewaterhouseCoopers LLP.
|
|
|
Consent
of Ryder Scott Company, L.P.
|
|
23.4**
|
Opinion
of Jones, Walker, Waechter, Poitevent, Carrère & Denègre,
L.L.P.
|
|
24.1**
|
Powers
of Attorney pursuant to which this registration statement has been
signed
on behalf of certain officers and directors of MMR.
|
|
25.1*
|
Statement
of Eligibility of Trustee on Form T-1 under the Senior
Indenture.
|
|
25.2*
|
Statement
of Eligibility of Trustee on Form T-1 under the Subordinated
Indenture.
|
* To
be filed by an amendment or by a report filed under the Exchange Act, and
incorporated herein by reference.
** Previously
filed.
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