UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
(Amendment No. 2)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
McMoRan Exploration Co.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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74-1424200
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(State of Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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1615 Poydras Street
New Orleans, LA
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70112
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(Address of Principal Executive Offices)
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(Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which
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to be so registered
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each class is to be registered
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Common Stock, par value $0.01 per share
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New York Stock Exchange
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If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box.
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If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box.
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Securities Act registration statement file number to which this form relates: 333-144496
Securities to be registered pursuant to Section 12(g) of the Act: None
TABLE OF CONTENTS
EXPLANATORY NOTE
This Amendment No. 2 (this “Amendment”) amends the Form 8-A filed on November 13, 1998 and
Amendment No. 1 to Form 8-A filed on June 15, 2009 by McMoRan Exploration Co. (the “Company”) to
update the Company’s “Description of Capital Stock” that was included in the Company’s Registration
Statement on Form S-3, Registration No. 333-144496, as filed with the Securities and Exchange
Commission (“SEC”) on July 11, 2007, as amended October 3, 2007. Any form of prospectus supplement
or prospectus or any amendment to the Registration Statement that includes such description and
that is subsequently filed by the Company with the SEC is hereinafter incorporated by reference
herein.
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Item 1.
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Description of Registrant’s Securities to be Registered.
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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 and our amended and restated certificate of incorporation, as amended, which we refer to
as our certificate of incorporation, and our amended and restated by-laws, which we refer to as our
by-laws. Copies of our certificate of incorporation and by-laws are incorporated herein by
reference and will be sent to you at no charge upon request.
Authorized Capital Stock
Under our certificate of incorporation, our authorized capital stock consists of 300 million
shares of common stock, $0.01 par value per share, and 50 million shares of preferred stock, $0.01
par value per share. As of December 31, 2010, there were issued and outstanding:
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157,187,925 shares of common stock (excluding 2,609,427 treasury shares);
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22,063 shares of 8% convertible perpetual preferred stock;
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200,000 shares of 5.75% convertible perpetual preferred stock, Series 1; and
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500,000 shares of 5.75% convertible perpetual preferred stock, Series 2.
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As of December 31, 2010, our outstanding shares of 8% convertible perpetual preferred stock
were convertible into 3,224,406 shares of common stock (assuming the current conversion rate of
146.1454, such conversion rate being subject to adjustment to a maximum conversion rate of 173.9130
upon a “fundamental change” as such term is defined under the certificate of designations); our
outstanding shares of 5.75% convertible perpetual preferred stock, Series 1, were convertible into
12,500,000 shares of common stock (assuming the current conversion rate of 62.5 shares, such conversion rate being subject to adjustment
to a maximum conversion rate of 72.7802 upon a “fundamental
change” as such term is defined under the certificate of
designations); our
outstanding shares of 5.75% convertible perpetual preferred stock, Series 2, were convertible into
31,250,000 shares of common stock (assuming the current conversion rate of 62.5 shares, such conversion rate being subject to adjustment
to a maximum conversion rate of 72.7802 upon a “fundamental
change” as such term is defined under the certificate of
designations); our
outstanding 5 1/4% convertible senior notes due October 6, 2011 were convertible into 4,507,994
shares of common stock at a conversion price of $16.575 per share; our outstanding 4% convertible
senior notes due December 30, 2017 were convertible into 12,500,000 shares of common stock at a
conversion price of $16.00 per share; an aggregate of 11,867,750 shares of our common stock were
authorized for issuance upon the exercise of outstanding stock options at an average exercise price
of $13.69 per share; and an aggregate of 98,500 shares of our common stock were issuable upon
vesting of restricted stock units.
Description of 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.
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Voting rights.
Holders of our common stock are entitled to elect all of the members of the
board of directors, except that holders of our 8% convertible perpetual preferred stock and holders
of each series of our 5.75% convertible perpetual preferred stock, voting as a single class with
the shares of any other preferred stock or securities having similar voting rights, are entitled to
elect two directors in addition to those directors elected by the holders of our common stock if we
fail to make specified dividend payments. See “—Description of Preferred Stock” for additional
information relating to the voting rights of our preferred stock. Each share of common stock has
one vote. With respect to all other matters submitted to a vote of stockholders, except as required
by law, the holders of the common stock vote together as a single class, and record holders have
one vote per share.
Dividend rights; rights upon liquidation.
Subject to any preferences afforded to the holders
of preferred stock, currently outstanding or issued in the future by the board of directors,
holders are entitled to dividends at such times and in such amounts as the board of directors may
determine. In the event of a voluntary or involuntary liquidation, dissolution or winding up of our
company, prior to any distributions to the holders of the common stock, the holders of our 8%
convertible perpetual preferred stock and each series of our 5.75% convertible perpetual preferred
stock will receive any payments to which they are entitled. Subsequent to those payments, the
holders of the common stock will share ratably, according to the number of shares held by them, in
our remaining net assets, if any.
Other rights.
Shares of our common stock are not redeemable and have no subscription,
conversion or preemptive rights.
Transfer agent.
The transfer agent and registrar for the common stock is BNY Mellon Shareowner
Services.
NYSE.
We list our common stock on the New York Stock Exchange under the symbol “MMR.”
Certain Provisions of our Certificate of Incorporation and By-laws
Supermajority voting/fair price requirements.
Our certificate of incorporation requires the
approval of the holders of not less than 80% of our common stock voting together as a single class,
and not less than 75% of our common stock excluding common stock beneficially owned by the
interested stockholder (described below) voting as a separate class, for:
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any merger, consolidation or share exchange of our company or any of our
subsidiaries with or into an interested stockholder (an interested stockholder is
any person or entity, or any associate or affiliate of that person or entity, who
(i) is the beneficial owner of 15% or more of our common stock, or (ii) is an
affiliate or associate of our company and was within the two years prior to the
transaction a beneficial owner, directly or indirectly, of 15% or more of our
common stock, which we refer to as an interested stockholder);
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any sale, lease, transfer, exchange, mortgage, pledge, loan, advance or similar
disposition of 5% or more of the lesser of the total market value of our
outstanding stock or our net worth in one or more transactions involving an
interested stockholder or an associate or affiliate of an interested stockholder;
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the adoption of any plan or proposal for liquidation or dissolution of our
company or any subsidiary;
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the issuance or transfer by us or any of our subsidiaries of equity securities
having a fair market value of $1 million or more in one or more transactions in any
twelve-month period to any interested stockholder or affiliate or associate of an
interested stockholder except pursuant to warrants or rights to purchase securities
offered pro rata to all holders of common stock or by other means such that each
holder of common stock is given substantially proportionate treatment;
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any reclassification or recapitalization of securities of our company, including
any reverse stock split, any merger, consolidation or share exchange of our company
with any subsidiary, or any other transaction (whether or not involving an
interested stockholder) that would increase, by 5% or more, an interested
stockholder’s, or any associate or affiliate of an interested stockholder’s, voting
power or proportionate amount of shares of any class or series of equity securities
of our company or any subsidiary;
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any loans, advances, guarantees, pledges or other financial assistance or tax
advantages provided by our company or any of our subsidiaries to an interested
stockholder or any affiliate or associate of an interested stockholder except
proportionately as a stockholder; or
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any agreement, contract or other arrangement providing directly or indirectly
for any of the foregoing.
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However, the supermajority voting requirement is not applicable if:
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our board of directors approved the transaction before the interested
stockholder became an interested stockholder by a majority vote of the members of
our board of directors and the transaction is approved by a majority vote of the
continuing directors (a continuing director is any member of the board of directors
who is not an interested stockholder or an affiliate of an interested stockholder
and (i) was a director prior to the time the interested stockholder became an
interested stockholder or (ii) was recommended or elected by a majority of the
continuing directors at a meeting at which a quorum consisting of a majority of the
continuing directors was present; in the absence of an interested stockholder, the
continuing directors means all the directors then in office); or
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all of the following conditions have been met: (i) the aggregate amount of
consideration received per share by the holders meet certain “fair price” criteria,
(ii) prior to the consummation of the transaction (a) there has been no failure to
declare or pay dividends on any outstanding preferred stock, (b) there has been no
reduction in the annual rate of dividends paid on common stock except to reflect a
subdivision of the common stock and no failure to increase the annual rate of
dividends as necessary to reflect a decrease in the number of outstanding shares of
common stock, and (c) the interested stockholder has not become the beneficial
owner of any additional shares of common stock except as part of the transaction
that resulted in such interested stockholder becoming an interested stockholder or
as a result of a pro rata stock dividend, and (iii) the interested stockholder has
not received the benefits (except proportionately as a stockholder) of any loans,
advances or other financial assistance or tax advantages provided by us.
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Amendment of Certain Provisions of our Certificate of Incorporation.
Under Delaware law,
unless the certificate of incorporation specifies otherwise, a corporation’s certificate of
incorporation may be amended by the affirmative vote of the holders of a majority of the shares of
outstanding stock with voting power with respect to such amendment. Our certificate of
incorporation requires the affirmative vote of 80% of the voting stock to amend, alter or repeal
certain of its provisions regarding (i) stockholder unanimous written consents, (ii) the
classification, filling of vacancies and removal of members of the board of directors, (iii) the
limitation of liability of directors, (iv) business combinations and (v) amendments to our
certificate of incorporation and our by-laws.
Effects of authorized but unissued common stock and blank check preferred stock.
One of the
effects of the existence of authorized but unissued common stock and undesignated preferred stock
may be to enable our board of directors to make more difficult or to discourage an attempt to
obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and
thereby to protect the continuity of management. If, in the due exercise of its fiduciary
obligations, the board of directors were to determine that a takeover proposal was not in our best
interest, such shares could be issued by the board of directors without stockholder approval in one
or more transactions that might prevent or render more difficult or costly the completion of the
takeover transaction by diluting the voting or other rights of the
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proposed acquirer or insurgent stockholder group, by putting a substantial voting block in
institutional or other hands that might undertake to support the position of the incumbent board of
directors, by effecting an acquisition that might complicate or preclude the takeover, or
otherwise.
In addition, our certificate of incorporation grants our board of directors broad power to
establish the rights and preferences of authorized and unissued shares of preferred stock. The
issuance of shares of preferred stock could decrease the amount of earnings and assets available
for distribution to holders of shares of common stock. The issuance also may adversely affect the
rights and powers, including voting rights, of those holders and may have the effect of delaying,
deterring or preventing a change in control of our company.
Advance notice of intention to nominate a director.
Our certificate of incorporation and
by-laws permit a stockholder to nominate a person for election as a director only if written notice
of such stockholder’s intent to make a nomination has been delivered to our Secretary not later
than the close of business on the 120th day nor earlier than the close of business on the 210th day
prior to the first anniversary of the preceding year’s annual meeting. This provision also requires
that the notice set forth, among other things, a description of all arrangements or understandings
between the nominee and the stockholder pursuant to which the nomination is to be made or the
nominee is to be elected and such other information regarding the nominee as would be required to
be included in a proxy statement filed pursuant to the proxy rules promulgated under the Securities
Exchange Act of 1934, as amended, had the nominee been nominated by our board of directors. Any
nomination that fails to comply with these requirements may be disqualified.
Advance notice of stockholder proposals.
Our by-laws permit a stockholder proposal to be
presented at a stockholders’ meeting only if prior written notice of the proposal is provided to us
within the time periods and in the manner specified in the by-laws.
No ability of stockholders to call special meetings.
Our certificate of incorporation and
by-laws deny stockholders the right to call a special meeting of stockholders, except in those
limited circumstances where holders of our preferred stock have the right to call a special
meeting. Our by-laws provide that special meetings of stockholders may be called only by the
chairman or either co-chairman of the board of directors, the vice chairman of the board of
directors or the president and chief executive officer or upon a vote of the majority of the board
of directors.
No action by written consent.
Our certificate of incorporation prohibits our stockholders from
taking any action except at an annual or special meeting of stockholders.
Removal of directors; filling vacancies on board of directors.
Our certificate of
incorporation provides that any director may be removed, for cause involving fraud or a violation
of the duty of loyalty as determined by a court of law, by a vote of the holders of 80% of the
voting stock. Any vacancies on the board of directors resulting by the death, resignation or
removal of a director may be filled only by a vote of both a majority of the directors then in
office and a majority of continuing directors voting as a separate group.
Amendment of by-laws.
Our certificate of incorporation and by-laws provide that our by-laws
may be altered, amended, changed or repealed by vote of the holders of 80% of the voting stock, or
upon the affirmative vote of both a majority of the board of directors then in office and a
majority of all continuing directors voting as a separate group.
Limitation of liability of directors and officers.
As permitted by the Delaware General
Corporation Law, our certificate of incorporation includes a provision that eliminates the personal
liability of our directors for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director’s duty of loyalty to our company or its
stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper personal benefit. The effect
of this provision is to eliminate our rights and our stockholders’ rights to recover monetary
damages against a director or officer for breach of a fiduciary duty of care. The
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provision does not eliminate or limit our right, or the right of a stockholder, to seek
non-monetary or equitable relief, such as an injunction or rescission. The SEC has taken the
position that this provision has no effect on claims arising under the federal securities laws.
In addition, our certificate of incorporation provides for mandatory indemnification rights,
subject to limited exceptions, to any director or executive officer who (because of the fact that
he or she is our director or officer) is involved in a legal proceeding of any nature. These
indemnification rights include reimbursement for expenses incurred by the director or officer in
advance of the final disposition of a proceeding according to applicable law.
Description of Preferred Stock
8% Convertible Perpetual Preferred Stock.
Our 8% convertible perpetual preferred stock has a
liquidation preference of $1,000 per share. Each share is convertible into 146.1454 shares of our
common stock. The conversion rate is adjustable upon the occurrence of certain events. Beginning
June 15, 2014, we may redeem shares of the 8% convertible perpetual preferred stock by paying cash,
our common stock or any combination thereof for $1,000 per share plus accumulated and unpaid
dividends, but only if our common stock has exceeded 130% of the conversion price for at least 20
trading days within a period of 30 consecutive trading days ending on the trading day before the
date we give the redemption notice. Dividends are cumulative and are payable quarterly on February
15, May 15, August 15 and November 15 of each year. Generally, we cannot pay dividends on or
repurchase our common stock unless all accrued, cumulated and unpaid dividends on the 8%
convertible perpetual preferred stock for all prior dividend periods have been paid in full.
5.75% Convertible Perpetual Preferred Stock, Series 1 and Series 2.
Each series of our 5.75%
convertible perpetual preferred stock has a liquidation preference of $1,000 per share. Each share
of both series of our 5.75% convertible perpetual preferred stock is convertible into 62.5 shares
of our common stock. The conversion rate for each series is adjustable upon the occurrence of
certain events. We may not redeem any shares of either series of our 5.75% convertible perpetual
preferred stock before December 30, 2013. On or after December 30, 2013, we may redeem some or all
of the shares of either series of our 5.75% convertible perpetual preferred stock at a redemption
price (the “redemption price”) equal to 100% of the liquidation preference, plus accumulated and
unpaid dividends thereon to, but excluding, the redemption date, but only if the closing sale price
of our common stock for 20 trading days within a period of 30 consecutive trading days ending on
the trading day before the date we give the redemption notice exceeds 130% of the conversion price
in effect on each such trading day. At any time on or after December 30, 2020, we may redeem some
or all the shares of our 5.75% convertible perpetual preferred stock, Series 1 at the redemption
price. We have the right to pay the redemption price for shares of our 5.75% convertible perpetual
preferred stock, Series 1 in cash, shares of our common stock, or a combination of cash and shares
of our common stock, subject to certain conditions. We may pay the redemption price for shares of
our 5.75% convertible perpetual preferred stock, Series 2 in cash only. Dividends on each series
of our 5.75% convertible perpetual preferred stock are cumulative and are payable quarterly on
February 15, May 15, August 15 and November 15 of each year. Generally, we cannot pay dividends on
or repurchase our common stock unless all accrued, cumulated and unpaid dividends on each series of
our 5.75% convertible perpetual preferred stock for all prior dividend periods have been paid in
full.
Holders of our 8% convertible perpetual preferred stock and each series of our 5.75%
convertible perpetual preferred generally have no voting rights, except as required by law. If
dividends payable on any of our preferred stock are in arrears for six or more quarterly periods
(whether or not consecutive), the holders of the preferred stock, voting as a single class with the
shares of any other preferred stock or securities having similar voting rights (the “voting rights
class”), will be entitled at the next meeting of our stockholders to elect two directors in
addition to those directors elected by the holders of our common stock. These voting rights and the
terms of the directors so elected will continue until such time as the dividends in arrears on the
preferred stock have been paid in full. We may not amend our certificate of incorporation if the
amendment would adversely affect the holders of our 8% convertible perpetual preferred stock or
either series of our 5.75% convertible perpetual preferred stock unless we obtain the
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consent of holders of at least two-thirds the outstanding shares of the voting rights class,
voting as a single class.
We may issue shares of preferred stock in series and may, at the time of issuance, determine
the rights, preferences and limitations of each series. Satisfaction of any dividend preferences of
outstanding shares of preferred stock would reduce the amount of funds available for the payment of
dividends on shares of common stock. Holders of shares of preferred stock may be entitled to
receive a preference payment in the event of any liquidation, dissolution or winding-up of our
company before any payment is made to the holders of shares of common stock. In some circumstances,
the issuance of shares of preferred stock may render more difficult or tend to discourage a merger,
tender offer or proxy contest, the assumption of control by a holder of a large block of our
securities or the removal of incumbent management. Upon the affirmative vote of a majority of the
total number of directors then in office, our board of directors, without stockholder approval, may
issue shares of preferred stock with voting and conversion rights which could adversely affect the
holders of shares of common stock. The issuance of any shares of preferred stock in the future
could adversely affect the rights of the holders of common stock.
Description of Convertible Notes
As of December 31, 2010, we had outstanding $74.72 million principal amount of our 5
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convertible senior notes due October 6, 2011. Interest on the convertible notes is payable
semiannually on April 6 and October 6. The notes are convertible, at the option of the holder, at
any time on or prior to maturity into shares of common stock at a conversion price of $16.575 per
share, which is equal to a conversion rate of approximately 60.33 shares of common stock per $1,000
principal amount of notes. The conversion rate is adjustable upon the occurrence of certain events.
As of December 31, 2010, we had outstanding $200 million principal amount of our 4%
convertible senior notes due December 30, 2017. Interest on the convertible notes is payable
semiannually on February 15 and August 15. The notes are convertible, at the option of the holder,
at any time on or prior to maturity into shares of common stock at a conversion price of $16.00 per
share, which is equal to a conversion rate of approximately 62.5 shares of common stock per $1,000
principal amount of notes. The conversion rate is adjustable upon the occurrence of certain events.
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1.
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Composite Certificate of Incorporation of the Company.
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2.
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Amended and Restated By-Laws of the Company, as amended, effective February 1, 2010
(incorporated by reference to Exhibit 3.3 to the Company’s Form 8-K filed with the SEC on
February 3, 2010 (File No. 001-07791)).
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Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the
Registrant’s Registration Statement on Form S-4 filed with the SEC on August 11, 1998, as
amended October 6, 1998 (Registration No. 333-61171)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
Registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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McMoRan Exploration Co.
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By:
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/s/ Nancy D. Parmelee
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Nancy D. Parmelee
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Senior Vice President, Chief Financial Officer and Secretary
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(authorized signatory and Principal Financial Officer)
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Date: January 28, 2011
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